A Tip For All You Cross-Reference Ninjas

This post explains how to edit a cross-reference to a contract article so that the a in article is lowercase. Chris Lemens, this one’s for you! (When it comes to layout and related issues, Chris is Javert to my Jean Valjean.)

Like any sane person, I use Word’s cross-reference function for the cross-references in contracts that I draft. Life’s too short to update cross-references manually.

Automated cross-references haven’t posed a problem for me when it comes to sections. I don’t begin each section with the word Section, as that would be a waste. It follows that my automated section cross-references consist of just the enumeration—you have to type the word section. The economy offered by not having Section precede each section more than offsets the labor involved in typing section in front of each cross-reference. (Put that in your pipe and smoke it, Chris!)

Article cross-references used to pose a problem, but not anymore. Here’s why:

Unlike my treatment of sections, I use the word Article in article headings. One reason for doing so is that it makes it clear that I use the word article, not section, to refer to a collection of sections. My other reason for doing so is to help distinguish article headings from section headings.

But including the word Article in article headings in a contract means that the word Article forms part of Word cross-references to articles in that contract. In default mode, that results in the cross-reference beginning with a capital A, as in “Subject to Article 5, …” In a world of rational English usage, that doesn’t make sense. See The Chicago Manual of Style.

(Incidentally, it follows that I can’t endorse Chris’s notion of employing initial capitals—or “nitcaps,” to use the A. Wright Burke locution—for internal cross-references and lowercase for external cross-references, an idea that Chris expressed here.)

So previously, I’d been faced with two imperfect choices for the few occasions when I need to cross-refer to a contract article: use an automated cross-reference and tolerate use of Article, with the capital A, or use a manual cross-reference instead, at the risk of having the cross-reference become incorrect if one or more articles are added or deleted.

Well, thanks to information sent me by Tara Byers of PayneGroup, developer of the Numbering Assistant, I’ve been able to resolve this dilemma. As described in this analysis prepared by a Microsoft “MVP,” you can edit the field code for a cross-reference to change it from nitcap to lowercase. You do that by right clicking on the cross-reference, selecting “Toggle Field Codes,” and then adding \* Lower (with a space before and after) at the end. For example, I edited one cross-reference from { REF _Ref395987965 \w \h } to { REF _Ref395987965 \w \h \* Lower }. You can then update the edited cross-reference or wait until you do a Ctrl+A, F9 global update of all the cross-references.

The circle is now unbroken, and Chris has lost his rationale for using nitcaps for cross-references. Your move, Chris. *assumes gangsta pose*

(By the way, in case it’s not obvious, I’m grateful to Chris for perhaps being the only other mortal who devotes as many brain cells to these issues as me.)

Posted in Layout, Technology | 12 Comments

  • Sterling

    Thank you. I love dorky Word tips like these. Just today I went and found a few others after reading your post about features in the Numbering Assistant. Learning about the style separator character and the inclusion of more than one numbering level on a line both resolved past frustrations.

  • Chris Lemens

    Ken:

    I’ll respond to your points directed at me, with additional reference to your blog post entitled “The MSCD Enumeration Scheme: A Manifesto” on February 27, 2012.

    First, you say:
    I don’t begin each section with the word Section, as that would be a waste.

    Your core assertion here is that including Section in enumeration is a waste. I take this in light of your previous statement that using the word Section before section headings doesn’t convey anything meaningful. I disagree with you factually on your assertion that
    this information is not useful to the reader (and thus pointless) for two
    reasons.

    First, people other than corporate lawyers read contracts. Most critically, business people and jurors do. They are as much my audience as the lawyer on the other side is. In my experience, business people actually like knowing how to refer to a part, as either an article, or a section, or a
    subsection. In 10 years of using that approach, I’ve never heard a complaint.

    Second, you seem to assume that the text will always be in the sections, not the articles. That might be the case with corporate acquisition agreements. But it assuredly not the case with the business agreements that I write. Often, the entire contents of an article will be a few sentences. For some of our agreements, I only have articles – sections were unnecessary.

    So I see small benefits. What about cost? Since using the word Section is automated in my forms, it literaly takes zero marginal effort, so there is no effort being “wasted” there. Likewise, in my forms, I don’t put the section heading on the same line as text, so it does not “waste” space. (If you like, we can also have the argument about your horrific practice of putting titles on the same line as text, and you really ought to read what the W3C says about it.)

    In balance, I see small benefits and zero costs. That’s not a waste.

    Next, you say:

    Unlike my treatment of sections, I use the word Article in article headings. One reason for doing so is that it makes it clear that I use the word article, not section, to refer to a collection of sections. My other reason for doing so is to help distinguish article headings from section headings.

    I agree with you on this point, except for the initial phrase. In fact, I agree with you so much, let me re-write it for you:

    Unlike Just like my treatment of sections articles, I use the word Article Section in article section headings. One reason for doing so is that it makes it clear that I use the word article section, not section article, to refer to a collection of subsections. My other reason for doing so is to help distinguish article headings from section headings.

    There, that’s much more consistent.

    Finally, you describe a nice technological solution that I didn’t know about: using the * Lower modifier in the cross reference. In retrospect, like most discoveries, that’s blindingly obvious, so I’ll think about modifying all my forms to use it.

    You follow this with:

    The circle is now unbroken, and Chris has lost his
    rationale for using nitcaps for cross-references.

    I’ve always said that this was primarily a matter of convenient technology for me, but I had noted some side benefits of differing nitcap treatment. In private correspondence to you (which you are free to quote, so long as you fix my typos), I said:

    I do use a lower case s when I simply refer to this section. The upper case in the cross reference thus serves as an additional cue that I’m referring to some other part of the agreement, not the part that the reader is then reading.

    In the blog comment that you reference, I further said (with typos corrected):

    But, because Word capitalizes internal cross-references for me, I usually use capitals for parts of the same document and lower case for anything in a different document. But that’s just as a convenient signal for the reader, and only in long documents. Most of my contracts are too short to have references to other documents.

    It seems we’ve identified three types of references:
    1. this section
    2. section x.x [of this agreement]
    3. section y.y. of the Other Agreement

    Introducing different nitcap treatment for at least one of these three items would allow the nitcap treatment to be a reading cue, which is something I generally believe in. Cases 1 and 3 seem readily distinguishable and unlikely to be confused, so keeping a nitcap in case 2 seems like the most likely way to retain a reading cue.

    But the basic use of nitcaps is the reading cue of “this begins a sentence.” Excessive use of nitcaps makes the reader’s brain work harder to discern meaning, which is a Very Bad Thing for those of us who write on the assumption that business people read our contracts.

    Further, I want a nitcap convention that is easy to use in writing, so that I don’t make mistakes and so that anyone else working on the draft can follow it without effort. The easiest would be all lower case and, as a minor plus, anyone familiar with MCSD is likely to follow it.

    So, color me undecided with a strong lean towards all lower-case.

    Chris

    • Westmorlandia

      Being an English lawyer, I use “Clause” to refer to any provision at any point in the hierarchy. That means I don’t use item 1, because I need to refer to “this Clause X.X” to avoid ambiguity about what “this Clause” might refer to. (This is the only, small, price to pay for the many advantages of this system.)

      I would use nitcaps for any reference to a clause of the agreement, and lower case for references to provisions outside the agreement.

      Incidentally, referring to everything as a “Clause” (or “Section” – the word doesn’t matter) has the immense advantage that no one ever has to worry about which word to use, while absolutely nothing is lost in clarity. If you can have “Clause 3″, “Clause 3.7″ and “Clause 3.7(b)”, and if you give the number every time, everything works perfectly. It’s highly economical, and as a result is also much more standardised across the English legal industry than the various US numbering systems that I come across, which all tend to differ a little.
      It also means that you don’t find yourself worrying about the different treatments of articles and sections – it’s clearer that they are all in the same category of thing.

      • http://www.adamsdrafting.com/ Ken Adams

        In MSCD 4.93, I recommend always including the enumeration in selfies (this section 4).

        Using clause for all units of text has many advantages? That’s like saying that calling all species of mammal “cat” has many advantages. I couldn’t conceive of endorsing that approach. Here’s what I say in MSCD 4.4–5:

        Some contracts use the term section for a group of sections. But with that approach, a reference to “section 1,” considered in isolation, could refer to a single provision or to a group of provisions. Using instead article distinguishes the whole from its constituent parts.

        UK drafters are partial to using clause instead of both article and section. But in general usage clause refers to a part of a sentence—in particular, this manual refers to “enumerated clauses” (see 4.28)—so also using clause instead of article and section would result in the one word conveying three different meanings.

        As discussed in my exchange of comments with Chris, using nitcaps for some cross-references but not for others is indefensible as a matter of modern English usage.

        • Westmorlandia

          As a basic matter of English, I agree – but you could say the same about nitcaps used for defined terms. My thinking is much the same, and I see them as a special case for drafting – the contracts I use say in the interpretation clause: “…references to Clauses are to clauses of this agreement…”.

          As regards using “clause/section” for everything, I don’t understand how the problem you mention would arise. If Clause 1 comprises Clauses 1.1 to 1.6, say, then can’t “Clause 1″ only refer to Clauses 1.1 to 1.6 taken together. What is the different single provision that it could refer to?

        • Chris Lemens

          Ken:

          Somehow I missed this:

          In MSCD 4.93, I recommend always including the enumeration in selfies (this section 4).

          That rule would collapse my case (1) and case (2) into a single case. Sadly, that makes it easier, not harder, to justify nitcaps as reading cues. (I’m not saying that is sufficient to move me there, just that that is the direction of the nudge.)

          As to this:

          As discussed in my exchange of comments with Chris, using nitcaps for some cross-references but not for others is indefensible as a matter of modern English usage. (It’s hard not to sound like a prig when saying that, but that’s the case.)

          The reason that some hypothetical person might sound like a prig saying such a thing is if he hasn’t actually rebutted the articulated reason one might adopt such a practice (i.e. as a reading cue in some contexts), instead calling it names like “indefensible.” I fail to see how an argument for which a defense has been advanced and not rebutted qualifies as “indefensible.” Note that saying you have a preference for other reasons that you think are more important does not rebut the argument advanced. The defense might lose, but it is not indefensible.

          Chris

          • http://www.adamsdrafting.com/ Ken Adams

            Sure, one must have a reason for every position. When I don’t offer one, it’s generally because I assume (correctly or not) that the reader knows what I’m referring to.

            In this case, the idea of using nitcaps for words that have some particular significance is inconsistent with The Chicago Manual of Style. For one thing, it seems random: why not use nitcaps to signal some other kind of importance? It also seems so unnecessary: why would the reader need a signal to distinguish “this section 4.4″ from “section 4.4 of the Merger Agreement”?

          • Chris Lemens

            Ken:

            I never liked the Chicago manual. But I like the substantive argument you made by way of example. The only instance in which distinguishing between internal and external references would be useful seems like it might be a very narrow hypothetical: where the current agreement is long enough to warrant at least a couple levels of numbering and it references another agreement frequently enough that saying “of the Other Agreement” every time would be burdensome. The possible example that comes to mind is a long amendment to an even longer original agreement. I’ve seen those, where the parties identify each changed piece, rather than restating the agreement. (Maybe, when they started the amendment, they didn’t realize how much would change.) I don’t immediately see how the references to the original agreement in such an amendment would be so frequent as to need a reading cue. I would think that the operative language would be something like, “The parties hereby amend section 1.2.3 to read as follows.” So I think I agree with your argument.
            Chris

    • http://www.adamsdrafting.com/ Ken Adams

      Chris: As regards including Section in section enumeration, the waste I’m referring to isn’t labor but space and reader attention.

      I’m at peace with assuming that readers know, or will quickly figure out, that sections are called sections. Using Article in article headings is consistent with that.

      Distinguishing selfies (my own neologism) from other kinds of internal cross-references.in use of nitcaps can’t work. I applaud your retreat from nitcaps. You’re almost there!

      Regarding putting headings on the same line as other text, I’m OK with my current position, but I’ll consider other points of view, bearing in mind that contracts are different.

      More generally, I mentioned that I would consider your manifesto during my time in South Bend. This post is a first step; stay tuned!

      Ken

  • Rich Belthoff

    I never use “Article”, but I sure enjoyed your tip anyway, because I probably devote more time than you researching and dealing with Word’s idiosyncrasies. Editing all the cross-reference codes to avoid a nitcap seems like a bit of a hassle, though. ;-).

    • http://www.adamsdrafting.com/ Ken Adams

      I rarely need to cross-reference an entire article, which is why I’ve suffered this glitch in silence.

  • KE Mitchell

    Doesn’t { … * Lower } convert all characters in the field to lower-case? This is problematic for those with upper-alpha in enumeration: “Section 1(a)(i)(A)” on the page becomes “section 1(a)(i)(a)” in the reference.