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The burden of proof, so the philosophers say, is on {{sex|she}} who makes the existential claim. It is not for a defendant to [[prove]] a negative. | The burden of proof, so the philosophers say, is on {{sex|she}} who makes the existential claim. It is not for a defendant to [[prove]] a negative. | ||
But do not let that stop you trying | But do not let that stop you trying. | ||
If you distrust [[epistemology]] — if, as many [[lawyer]]s do, you just find unpunctuated silence uncomfortable — you can always slip in a [[disclaimer]]. Nothing gladdens an [[Mediocre lawyer|attorney]]’s heart more than one of these. Where a [[client]] sees such a page of tightly leaded eight-point font as mere texture, his advisor will behold a thing of power, beauty, and precision impossible to articulate to the laity. A [[Ultimate disclaimer|good disclaimer]] bootstraps itself off the page and into three-dimensions, arcing gracefully into imagined geometries of space-time, disclaiming even itself into nothingness. | |||
To disclaim is definitively to say what, for the record, you are ''not'' saying. | To disclaim is definitively to say what, for the record, you are ''not'' saying. | ||
===Nosferatu, or the unsaid=== | ===Nosferatu, or the [[unsaid]]=== | ||
Lawyers have a primal fear of the unsaid. They see it as not a dark, formless void but an uncharted black ocean stretching to a distant horizon, teeming with whirlpools, leviathans, madmen and [[little old ladies]]; a brain-addling cosmos of unfathomable dimension: brimming with implied covenants, constructive knowledge, unarticulated warranties, unspoken | Lawyers have a primal fear of the unsaid. They see it as not a dark, formless void but an uncharted black ocean stretching to a distant horizon, teeming with whirlpools, leviathans, madmen and [[little old ladies]]; a brain-addling cosmos of unfathomable dimension: brimming with implied covenants, [[constructive knowledge]], unarticulated [[warranty|warranties]], unspoken [[waiver]]s, ineffable [[course of prior dealing|courses of prior dealing]], [[deemed]] [[joint venture|joint ventures]], [[fiduciary duty|fiduciary duties]]; shot through with open-ended [[equitable indemnities]]<ref>NB: I made this up for satirical purposes, but as ever, fact is stranger that fiction. [http://vondranlegal.com/what-is-definition-of-equitable-idemnity/ Californian law recognises an equitable indemnity].</ref> for any kind of stupidity in which your counterparty might, while carrying out its end of your bargain, indulge. | ||
Any of these forensic succubi may spark and crackle afire without warning should your [[incantation|magic incantations]] not ward them off. Just as vampire hunters have their amulets, wooden stakes, potions of garlic and vials of holy water, we lawyers have our [[disclaimer]]s: they are our shield and sword, universally effective against this terrifying void of nothingness. The safest way, so the thinking goes, to ensure something is ''not'' on the record is, fairly and squarely, to put it there, in terms as unequivocal, comprehensive and impenetrable as you can make them. | Any of these forensic succubi may spark and crackle afire without warning should your [[incantation|magic incantations]] not ward them off. Just as vampire hunters have their amulets, wooden stakes, potions of garlic and vials of holy water, we lawyers have our [[disclaimer]]s: they are our shield and sword, universally effective against this terrifying void of nothingness. The safest way, so the thinking goes, to ensure something is ''not'' on the record is, fairly and squarely, to put it there, in terms as unequivocal, comprehensive and impenetrable as you can make them. | ||