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Writing for a judge: Difference between revisions
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{{a|design| | {{a|design| | ||
[[File:Wapner.png| | [[File:Wapner.png|550px|frameless|center]] | ||
}}No, you are ''not'' writing for a judge. | }}No, you are ''not'' writing for a judge. | ||
Firstly, and this is no more than a re-articulation of the [[commercial imperative]]: you are writing for a record | Firstly, and this is no more than a re-articulation of the [[commercial imperative]]: you are writing for a record, to avoid dispute and with the firm hope that, from the moment the ink has dried, ''no human eye will ever behold your contract again''. You are not writing to maximise your position, to steal options from an inattentive client, much lass to reserve your position in case of future litigation. | ||
Every lawyer knows the cost of ''any'' kind of litigation is out of all proportion with the value of the contract to which it relates. It is ''never'' a good outcome to have your contract tested in court, even if you win. Therefore, you are writing ''to avoid a judge having to read it''. | Every lawyer knows the cost of ''any'' kind of litigation is out of all proportion with the value of the contract to which it relates. It is ''never'' a good outcome to have your contract tested in court, even if you win. Therefore, you are writing ''to avoid a judge having to read it''. | ||
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Therefore, we should not be surprised, when judges get financial services decisions wrong. And sometimes they do: {{casenote|Greenclose|National Westminster Bank plc}}; {{casenote|Citigroup|Brigade Capital Management}}. To be sure, they are just as likely to get them right, such as {{casenote|Barclays|Unicredit}}, and this is not to criticise the judiciary, but only to state an undeniable reality. ''You need to be close to this stuff to understand how it works''. It is ''in no way'' intuitive. It is ''hard''. Much of it is ''nonsense''.<ref>To which this site is reverent testament.</ref> [[Litigation]] is, at best, a ''crapshoot''. | Therefore, we should not be surprised, when judges get financial services decisions wrong. And sometimes they do: {{casenote|Greenclose|National Westminster Bank plc}}; {{casenote|Citigroup|Brigade Capital Management}}. To be sure, they are just as likely to get them right, such as {{casenote|Barclays|Unicredit}}, and this is not to criticise the judiciary, but only to state an undeniable reality. ''You need to be close to this stuff to understand how it works''. It is ''in no way'' intuitive. It is ''hard''. Much of it is ''nonsense''.<ref>To which this site is reverent testament.</ref> [[Litigation]] is, at best, a ''crapshoot''. | ||
So if you design your drafting for the benefit of judges | So if you design your drafting for the benefit of judges in priority to the men and women who are party to it, you are out of your mind. But for the very same reason, the best means of drafting for a non-specialist judge is exactly to draft for a non-legally qualified client: if it is clear to the counterparties, it will be clear to a judge. But even better than that, if it is clear to the counterparties ''it will never come before a judge''. That is your optimal outcome. | ||
''No one litigates an argument that they know they will lose.'' | |||
{{sa}} | {{sa}} | ||
*[[OneNDA]] | |||
*[[The quotidian is a utility, not an asset]] | |||
*[[Ditch tolerance]] and [[ditch proximity]] | |||
*[[Ninth law of worker entropy]] (the “[[anal paradox]]”) | |||
{{ref}} | {{ref}} | ||