Silly lawyer habits that can bite you in the $@#!

Take a look at the section below, from a contract a client gave me to review today. What is wrong with this picture?

Found it yet?

It’s at the end, where the words say “One Hundred Seventy Five Thousand Dollars” and the numerals say “$100,000.” Notice that this is not a small-change mistake. It potentially means a difference of $75,000 in liability for one of the parties.

How would a court decide what was really intended? Faced with an ambiguity in a contract, a court would presumably look to “extrinsic evidence” — evidence outside of the contract — such as e-mails, earlier drafts and such, to discern the intent of the parties.

Why in the world should a situation like this ever arise? Sure, people (and also, lawyers) make mistakes. That’s not the problem. The problem is that a common legal drafting habit — expressing numbers simultaneously in words and numerals — makes such mistakes far more likely.

Doing this makes no sense at all. (Though it’s totally of a piece with the more general lawyer problem of being redundant — and also, of saying the same thing twice.) Doing this can’t possibly clarify the meaning of the number. It can only confuse things if you change one and forget to modify to the other.

I suspect that this habit is related to check writing, where one always writes the amount both ways. There, however, the issue is interpreting handwriting, so there is some value to writing the amount out in words. But in a document printed out in type, there is no point at all, and in the age of word processing with “search and replace,” it’s highly likely to lead to mistakes.

No one is forcing lawyers to do this. It’s something of a tradition that lawyers either fear to depart from (because they assume there must be a reason for it) or thoughtlessly replicate. Like using the archaisms “Whereas” and, even better, “W I T N E S S E T H,” spaces and all. (I’ve always felt that any lawyer who uses “witnesseth” should be obligated to ride around on a horse, wear a suit of armor and drink ale from a chalice. But I digress.) At least, though, those traditions are fairly harmless. Merely pompous.

Do yourself a favor: if a lawyer ever hands you a document with numbers expressed like this, tell him or her to cut it out — before it costs you.

Categorised as: Lawyering, Legal Drafting