Is your lawyer living in the Middle Ages?

Lawyers, by nature, are a conservative lot. That’s a good thing up to a point. You don’t want your attorney to be one of those people who goes off half-cocked. But when lawyers reflexively follow bad habits handed down from one generation to the next, it can be a problem.

Look no further than a typical contract. There, you find all sorts of customary but senseless practices: using terminology from the Middle Ages such as “Witnesseth” (which means, exactly, what?) and expressing a number in both words and numerals (“At least thirty (30) days prior to Closing…). The first example is strange though probably harmless. The second habit, though, can easily become an issue for litigation, since lawyers making last-second edits can easily change the numerals while overlooking the words, or vice-versa, resulting in contradictory language. How do you interpret a contract provision that reads, “At least thirty (45) prior to Closing…”?

Why in the world would you need to express a number in two different ways? Is there some universe in which the numeral “45” needs to be clarified? But when you look at most legal documents, it is apparent that redundancy is part of the lawyer’s standard toolkit. You almost get the feeling that, like Dickens, attorneys are paid by the word. (They’re paid by the hour, which is almost the same thing.) The cumulative effect of these kinds of practices is to create documents that are excessively long and painful to read, without being especially clear. It’s just poor drafting.

Lawyers should strive for clarity and economy of expression. It is not easy to unlearn one’s bad habits, but one ought to try. It starts with the independence of mind to see that they way you’ve always done things is not necessarily the way that they should be done. Kudos to people like Ken Adams, whose “Manual of Style for Legal Drafting” reflects his one-man crusade to get lawyers to be more clear, concise and consistent.

Categorised as: Lawyering

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