Professor Alaka notes that “many, if not most, legal writing instructors have been surprised by the sometimes astounding lack of basic writing skills exhibited by a few of their students.” Is this something new? The following quotation in the article (taken from this article [pdf copy]) suggests that to some extent it is: “Widespread cultural changes, resulting in overall declining student writing levels and reading efforts, will likely affect incoming law student preparedness for law schools at every tier level.” But as Professor Alaka notes, Derek Bok (the former president of Harvard) says that “freshmen have never arrived at college with impressive writing skills” and that about 25 percent of Harvard freshmen in the 1890s were deemed poor writers ill-prepared for college coursework.

So I don’t agonize over the causes of current writing standards; all I know is that what I read and hear suggests that they’re a cause for concern. (To hear some people talk, being a legal writing instructor is akin to engaging in trauma triage.)

I got to wondering how this plays out for contract drafters. Would the same kind of remedial work be required to turn the current crop of law students into accomplished drafters? In other words, does clear drafting require the same kinds of skills as other kinds of writing (descriptive, expository, narrative, persuasive)?

In that regard, I have some good news and some bad news.

The good news is that because contract drafting seeks to regulate conduct, it’s more limited and stylized than other kinds of writing. For example, it offers a limited range of verb use, a limited vocabulary, and generally seeks to accomplish a limited range of goals. So you don’t have to be Proust to be an excellent contract drafter. Instead, you have apply to language the mindset of a software engineer—one with some creativity!—and you have to follow the rules.

But the bad news is that if you screw up in drafting a contract, the consequences can be vastly more traumatic than in other kinds of writing: in a contract, every provision serves a function; the stakes are high; the future is uncertain; and the parties can be expected to leap on anything that works to their advantage. By contrast, other kinds of writing are generally much more forgiving.

Those factors operate as a carrot and a stick on those learning to draft contracts: Consider yourselves lucky that you’re dealing with a more manageable kind of writing. And be sure to take advantage of that, because there’s a lot riding on your command of contract language.

My first instinct was to assign this to the wrong side of the litigation-transactional divide. But drafting is subject to general principles of good legal writing, one of which is that you’d be advised to restrain yourself from succumbing to the lawyer urge to give an initial capital to anything that’s important. Any kind of writing benefits if the writer follows established guidelines, and when it comes to capitalization, for purposes of writers located in North America the authority to follow is The Chicago Manual of Style. It advocates a “down” style—”the parsimonious use of capitals.”

In that spirit, note what isn’t capitalized in the following:

• issued by the secretary of state of the state of Delaware
• the bank account specified in schedule 2(e)
• sale of units of Product under this agreement
• signed by the president of Acme Technologies, Inc.
• as defined in section 6(c) of the merger agreement between Acme, Widgetco Acquisition, Inc., and Widgetco Technologies, Inc.

Those of you who are outside of North America, what authority do you consult on matters such as capitalization?

I encountered one such issue yesterday, when I received the following email from a reader:

I was wondering whether there is any difference in meaning between (A) “opt not to apply” and (B) “opt to not apply.” I was wondering if you could (or should) opt for (B), if you wanted to make the point that you deliberately decided to forego the application. You have any views on this? Many thanks.

I replied as follows:

Here’s what The New Fowler’s Modern English Usage 530 (3d ed.) has to say:

Not is routinely used before a to-infinitive, negating all that follows it: … She tried not to watch Oscar count out his farthings …. But, not uncommonly, not is placed between (’splits’) the to and its infinitive: … It was wrong to not love them …. This ‘unprincipled’ placing of not is presumably intended to give additional emphasis to the negativity.

In the limited and stylized world of contract drafting, where you put the not doesn’t affect meaning. But to avoid antagonizing those who make a fetish of not splitting infinitives, I’d put the not before the to-infinitive.

The Stories of English

I took the opportunity to read what Crystal has to say about “doublets,” which I also refer to as redundant synonyms. (I’d previously read David Mellinkoff’s Language of the Law on this subject.) In panel 7.4, Crystal notes how during the thirteenth century French replaced Latin as the primary language of legal expression and how during the fifteenth century law French was gradually replaced by law English.

He goes on:

The problem was: how can tradition be respected yet precision maintained when there are three languages competing for attention? It is plain that lawyers spend a great deal of their time worrying about the precise signification of words …. So what words should be chosen when Latin, French, and English each provide a copious supply of relevant items? How does one choose between synonyms, or—even more difficult—between two words which seem to be synonymous, but which might just have enough differential meaning to allow a lawyer one day to make an argument based on the difference?

The solution in many cases, was: don’t choose; use both. In Middle English we see the rise of the legal lexical doublets which would become one of the stylistic hallmarks of that profession. Old English goods and Old French chattels resulted in Middle English legalese goods and chattels. The words were often paired to cover distinct nuances, thereby avoiding ambiguity; but sometimes the pairing seems to be no more than a more emphatic expressing of a single meaning; and sometimes it seems to be just a stylistic habit, perhaps fostered by its undoubted rhythmical appeal in oral performance. But whatever the reason, it became a major feature of legal style which continues to the present day.

Crystal provides examples of doublets, triplets, and even quadruplets. He notes that it wasn’t long before the habit of doubling became extended to pairs of words regardless of their language of origin. For example, in null and void, both words are French; in have and hold, both words are English.

What bearing, if any, does this have on contract drafting?

Well, we no longer have to worry about a readership versed in Latin and Old French. On the other hand, English is now in flux in a different way, that it has become the lingua franca for business the world over. Drafters are called on to articulate, in English, concepts originally articulated in different languages for purposes of different legal systems. But that’s an issue for translators; it’s not likely to be resolved through use of redundant synonyms.

Of course, one issue Crystal refers to remains relevant: sometimes it’s advisable to use two words because the two words don’t constitute synonyms but instead have overlapping meanings. That’s the only legitimate use for doublets or triplets.

But what I take from Crystal, and from Mellinkoff before him, is that doublets and triplets serve primarily a rhetorical function. That’s why they remain a prominent feature of contract prose, and that’s why lawyers continually invent new redundant synonyms.

In that regard, I enjoyed what Crystal has to say about have and hold:

But have and hold requires a further comment: it reminds us that lexical coupling is an ancient English stylistic tradition. Heold mec on hæfde Hreðel cyning, reminisces Beowulf (l. 2,430)—”King Hrethel had and held me” (i.e., looked after me). The rhythmical appeal of lexical doubling has well-established historical roots.

Consider the following provision:

During the term of this agreement and the following 24 consecutive months, the Consultant shall not …

In this context, the word consecutive is redundant. The same applies to use of consecutive with other units of time.

But consider this provision:

The Employee shall spend two months every year in Acme’s Budapest office.

The employee could elect to spend one week a month in the Budapest office each of the first eight months of 2008 and presumably be in compliance with that obligation.

So if you’re referring to a period of time before or after a point in time, consecutive is redundant. But if you’re referring to a period of time within a larger period of time and you want the shorter period of time to be treated as one block, you should use consecutive.

Here’s the one thought that came to mind: In contracts, I use semicolons between integrated enumerated clauses when they’re preceded by a colon and between tabulated enumerated clauses; between the elements of a compound section heading; and between two “stacked” integrated definitions in a single defined-term parenthetical. Otherwise, I don’t use them.

For one thing, I’ve dispensed with archaisms that are traditionally associated semicolons, such as provided, however, that, and use of WHEREAS in recitals.

And more generally, semicolons are creatures of nuance—less than a period, more than a comma. A contract isn’t the place for nuance.

But fans of semicolons shouldn’t despair: even with the limited use I put them to, my contracts still end up containing quite a few of them.

For some reason that I’ve since repressed, I didn’t use contractions in MSCD. So for the second edition, I’m now adding them in wherever I think appropriate. Here’s a representative example of what that amounts to:

If you need to create a defined term for a definition that is that’s unique to a particular transaction, use a term that is that’s concise yet informative. Sometimes you will not won’t be able to avoid creating a defined term that is that’s a little long-winded, such as the PLM/Whitman Excluded Asset Proceeds.

I hope you agree that the effect is salutary.

But the reason for this post is that retrofitting contractions into my prose reminded me how last year, at a conference, I heard an expert on legal writing recommend that one use contractions in contracts.

Now I’m all for contractions in insurance policies or car rental agreements. But business contracts? I think not. Contract prose is like computer code—it’s devoid of tone or life, unless it’s poorly done, in which case can be redolent of pomposity. So the idea of using contractions in business contracts to achieve a natural, conversational rhythm seems bizarre.

Any thoughts?

I prefer half over 50%. Saying “50% of the shares” rather than “half the shares” is like saying “I ate 1.0 apples” rather than “I ate an apple.”

But I wouldn’t take this logic any further. For instance, I wouldn’t recommend that you use one-quarter rather than 25%. One-quarter is much more cumbersome than half.

Incidentally, Garner’s Modern American Usage recommends omitting whenver possible the preposition of after half, but notes that “when a pronoun follows, the of is typically needed,” as in “half of them are.”

So instead of on a daily basis, try daily, as in “Interest will accrue on a daily basis [read daily].” (In other words, use daily as an adverb rather than as an adjective.) Analogous fixes would take care of on a weekly basis, on a regular basis, and other such phrases.

The same goes for on a pro rata basis, as in “Those shares will be allocated on a pro rata basis [read pro rata] to the Remaining Holders.”

And how about on a timely basis? In on a timely basis, in a timely manner, and in a timely fashion, the word timely is used as an adjective. But in American English timely can also be used as an adverb, and in the interest of concision you’d be best off replacing those phrases with timely, as in “a material adverse effect on the Company’s ability to perform on a timely basis [read timely perform] its obligations under any Transaction Document.”

But Bryan Garner notes that “This adverbial use of timely is archaic in [British English].” See Bryan’s Dictionary of Modern American Legal Usage. That explains why this usage initially seemed odd to me—I received most of my pre-law-school education in England.

Sometimes the fix requires a bit more surgery. Consider the following example: Acme may not enter into any transaction with any Affiliate unless that transaction is made on an arm’s-length basis and [read other than an arm's-length transaction that] has been approved by a majority of the disinterested directors of the Company.”

The above fixes might seem trivial, but if the approach they reflect were applied over an entire contract, the reader would notice the difference.

In the event that (y) Parent is not able to obtain any of the IRS Rulings and Opinions of Counsel, or (z) in obtaining the IRS Rulings and Opinions of Counsel, the Parties would be required to make factual statements, representations and/or covenants that differ materially from the Representations and the differences in such factual statements, representations and/or covenants would reasonably be expected to result in, in the aggregate, a significant adverse effect on Parent and its Subsidiaries, taken as whole (provided that solely for purposes of determining whether the magnitude of such effect is “significant,” such effect shall be measured relative to the Spinco Entities only and Parent and its Subsidiaries (other than the Spinco Entities) shall be disregarded) (a “Parent Adverse Impact”), on the one hand, or a significant adverse effect on the Company and its Subsidiaries, taken as a whole (including by affecting Company’s ability to take actions in the ordinary course of operating a radio station or radio network, such as programming changes(including changes in format), adoption and change of call signs, contracts and other relationships with talent, sales, employment and labor matters, capital expenditures, ordinary-course acquisitions and dispositions of assets, acquisitions for cash or debt, and ordinary (i.e., non-equity-linked and not part of an investment unit) “straight” debt financing and refinancing as described in Section 1361 of the Code, but without regard to the identity of the borrower or the lender) (a “Company Adverse Impact”), on the other hand, Parent, Spinco and Company shall use their reasonable best efforts to restructure the Transactions in a manner that will preserve the economics of the Transactions to Parent, Spinco, Company, Parent Stockholders and Company Stockholders and result in the receipt of such rulings and opinions.

Here’s the problem: This provision consists of a convoluted conditional clause followed by a shorter matrix clause (“Parent, Spinco and Company shall use their reasonable best efforts …”). In MSCD 3.94 I say the following:

Conditional clauses have traditionally been placed at the beginning of a sentence, but you should feel free to place a conditional clause elsewhere if doing so would make the provision easier to read. The longer the conditional clause, the more likely it is that the provision would be more readable with the matrix clause rather than the conditional clause at the front of the sentence.

That’s certainly the case here: it’s excrutiating to have to read through the meandering conditional clause before getting to the payoff, namely the matrix clause.

Of course, switching the order of the conditional clause and the matrix clause would represent only the first step in the extensive surgery that would be required to turn this provision into rational prose. (I note in passing the unnecessary on the one hand … on the other hand and the puzzling reasonable best efforts.)

It would be unattractive to sneer at suboptimal language in deal documents—deal lawyers are often under severe time constraints, and expediency is generally the order of the day, even in big transactions.

On the other hand, I wouldn’t be surprised if the big-firm lawyers who put this provision together think that no one has anything to teach them about contract drafting.