The Corporate Law Group

Legal Writing

Legal WritingYou may have noticed that lawyers don’t write like other people. Some lawyers think this is a good thing. They think they are being precise, when frequently they are just being long winded. It is as if they billed by the word (which they kind of do when you think about it).

For example, lawyers like making lists. “The party of the second part shall not disclose the trade secrets to any third party including, without limitation, their spouse, friend, acquaintance, priest, therapist, or classmate.” If it’s any third party why list a bunch of random third parties? Why not stop the sentence after ‘any third party’? And see how we slipped in ‘party of the second part’? Yeah, even lawyers don’t write that way for the most part these days.

Defined terms are another way to write really badly. Ever read a contract and every third word is Capitalized, bolded, or underlined? We’ve read agreements where there are several defined terms never used once in the agreement. I guess they are just held in abeyance for the next time that form is used, and “Lawnmower” needs defining. Just leave it in, like an appendix, until then.

Of course there are also agreements like the one we just read, where someone inserted a mergers definition and then left the term “Parent” in their insertion. Problem was, the agreement was about the Company not the Parent so the insertion added an undefined defined term.

Then there’s, “We reserve all rights to take appropriate action.” Unless the thing you wrote before that was a release of some rights, it’s a meaningless way to try to scare people. OMG, they’re reserving all of their rights? What in the world do they intend to do?

We worked on one licensing agreement where the licensor carved the distribution channels up into more pieces than a Honeybaked Ham. I told our client that there was no way to argue with any certainly that one scheme was an OEM channel and not a VAR channel (or some such). Fortunately when an ambiguity arose, the worst interpretation was OK for our client and the best interpretation was better than we had hoped.

Do all these words do their job? Do they ensure crispness and prevent ambiguity? Not all the time. We’ve seen deals where a million dollars was spent on lawyers papering a transaction that then gets litigated anyhow for one reason of another.

Our rule? Make sure your agreement says what you mean. Think through the suite of possible eventualities. Make sure you can stand in front of a jury and explain why it says what you think it says. If it’s clear, says what you want, and you’ve tried to eliminate ambiguities, and if you can explain it to a jury, it’s probably OK. Sign it, keep it close, and do business.