Comments on: More on Needless Elaboration http://www.adamsdrafting.com/2007/08/06/more-on-needless-elaboration/ Fri, 19 Mar 2010 12:50:33 +0000 http://wordpress.org/?v=2.9.2 hourly 1 By: D. C. http://www.adamsdrafting.com/2007/08/06/more-on-needless-elaboration/comment-page-1/#comment-19805 D. C. Mon, 26 Nov 2007 14:21:30 +0000 http://www.adamsdrafting.com/2007/08/06/more-on-needless-elaboration/#comment-19805 The conventional wisdom, of course, is that most such elaborations arose to try to block "creative" lawyering, usually on the part of litigation counsel. At some point lost in the mists of time, a contract said (let's say) "neither party is allowed to eat fish." But then later some litigator noticed that the parties' business together involved salt-water fish only. So he tried to argue that the parties never contemplated being prohibited from eating <em>fresh</em>-water fish. Litigators are <em>always</em> going to look for possible arguments like that. Their thinking goes something like this (I speak as a former litigator): There's no cost to me or my client if I make this argument. If the judge buys it, my client is ahead of the game. So hell yes, I'm going to take the shot; in fact, I'm ethically compelled to do so. As a drafter, the trick is to try to think like a litigator, and like a judge, to assess where elaboration language is needed to cover a genuine risk of "creative" lawyer, and where it's a waste of pixels and toner. The conventional wisdom, of course, is that most such elaborations arose to try to block “creative” lawyering, usually on the part of litigation counsel. At some point lost in the mists of time, a contract said (let’s say) “neither party is allowed to eat fish.” But then later some litigator noticed that the parties’ business together involved salt-water fish only. So he tried to argue that the parties never contemplated being prohibited from eating fresh-water fish.

Litigators are always going to look for possible arguments like that. Their thinking goes something like this (I speak as a former litigator): There’s no cost to me or my client if I make this argument. If the judge buys it, my client is ahead of the game. So hell yes, I’m going to take the shot; in fact, I’m ethically compelled to do so.

As a drafter, the trick is to try to think like a litigator, and like a judge, to assess where elaboration language is needed to cover a genuine risk of “creative” lawyer, and where it’s a waste of pixels and toner.

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