As discussed, in England the practise as I know it is to refer to “clauses” and “paragraphs” and “sub-paragraphs” of a contract. “Sections” and “articles” are generally used only when referencing statutes and legislation in general.

In chapter 3 of MSCD, I refer to sections, which can be grouped into articles and subdivided into subsections. Because that terminology is standard in the U.S., it didn’t cross my mind to consider alternative labels. I also discuss how any given sentence—potentially a very lengthy one—in a section or subsection can contain a set of enumerated clauses, which can be integrated or tabulated. And any given enumerated clause can itself contain a further set of enumerated clauses, although if in a given sentence you have more than two levels of enumerated clauses, the matryoshka-doll effect would usually make it harder to read rather than easier.

To check out English terminology, I had a look at my one book on drafting that was written by an English lawyer. (It’s outnumbered by my Canadian and Australian titles.) I’m not crazy about this book, so I won’t mention its name. (Yes, I know I should check out Mark Anderson’s book!)

According to this unnamed work, the basic unit is the “clause,” which can be grouped into “parts” or “sections” and can be divided into “sub-clauses.” That’s analogous to my articles-sections-subsections structure. I prefer section, and not only because it’s entrenched in the U.S.: clause-as-section clashes a bit with the linguistics meaning of clause.

But it then goes on to say that by means of “paragraphing,” sub-clauses can be divided into “paragraphs” and “subparagraphs”—what I refer to collectively as tabulated enumerated clauses. ”Paragraphing” is a standard term, but I prefer the other term for this, “tabulation”: in general usage it’s accepted that a paragraph is made up of one or more entire sentences, whereas a tabulated enumerated clause is only part of a sentence. For the same reason, I don’t refer to paragraphs and sub-paragraphs.

My other quibble is that in two respects it’s inaccurate to refer to tabulating sub-clauses. First, you tabulate a single sentence, and a sub-clause may well consist of more than a single sentence. Second, the sentence being tabulated could be in either a clause or sub-clause (i.e., section or subsection).

Ultimately, I’m not hung up on what labels you use for articles, sections, and subsections. I’m more concerned about distinguishing between, on the one hand, sections, subsections, and articles, which are concerned with how one groups sentences, and, on the other hand, tabulated enumerated clauses, which are concerned with how one subdivides individual sentences.

I’ve sometimes seen the notation “Confidential” in a footer, the aim presumably being to keep working drafts confidential. Less understandable are the notations “Privileged and Confidential” and “Attorney Work Product”—I don’t know what attorney-client privilege and the work-product doctrine have to do with contract drafting, but I’m prepared to have someone tell me.

Do you put anything else in headers and footers?

This page-numbering format offers two benefits. First, it lets the reader know how long the document is. And second, it precludes anyone from surreptitiously tacking on additional pages post-signing.

But I don’t find those advantages particularly compelling. If readers want to know how long a contract is, all they need to do is flip once to the signature page—they don’t need to be constantly reminded. And it’s unlikely that anyone could successfully perpetrate a let’s-add-some-extra-pages-at-the-end fraud.

And a disadvantage to this page-numbering format is that it’s rather busy. To my mind, that disadvantage outweighs the ostensible benefits, so that’s why I don’t use this format.

I think that approach is a dubious one, in that it violates a basic rule of contract drafting, namely don’t say stuff twice. If you fail to capture in the bullet points an important nuance contained in the full version, you shouldn’t be surprised if an aggrieved user sues you if you try to enforce that nuance.

The bullet points contain enough text to require the reader to pay attention, and the full version is the usual bloated crap. (Pardon my French!) That suggests that it would have been easy enough to achieve a compromise by including just the full version, cleaned up to make it much clearer and much more concise.

Incidentally, although the bullet points are evidently striving for the feel of a consumer contract, the full version sure looks like your regular business contract. If I were Aviary, I’d bite the bullet and treat it like a business contract and ditch the second person (using “you” and “your” to refer to the user). That’s something I discuss in MSCD 2.5 and in this August 2006 blog post.

If (1) A, (2), B, or (3) C, then X.

Acme shall (1) A, (2) B, and (3) C.

In such sentences, the drafter is forcing the reader to make a connection between each enumerated clause and the stub beginning of the sentence. In the first example, it would be better to incorporate the stub into each of the enumerated conditional clauses. (It’s a separate question whether the conditional clauses should go after the matrix clause, then X; I mention that issue in MSCD 2.175.) In the second example, it would be better to create three separate sentences or find some way to expand the opening stub.

“Intentionally omitted” is used in a contract to indicate when the text of an article, section, subsection, or enumerated clause has been omitted while leaving the enumeration of that unit intact. It’s an alternative to simply deleting the unit in question, and it’s used to avoid renumbering blocks of text.

For the most part, you’d only be worried about renumbering if you don’t use Word’s automatic cross-referencing feature but instead type in the numbers in your internal cross-references—a scary notion. In a document of any length, “intentionally omitted” would be the only alternative to the tedious task of updating cross-references manually with every revision.

If you use Word’s cross-referencing feature, you should feel free to delete entirely any unit of text that you don’t need, safe in the knowledge that all internal cross-references would adjust automatically. Conceivably some people might be so familiar with a given contract that they’d want any given section to retain the same enumeration, even if preceding sections have been deleted. If that includes you, go ahead an use “intentionally omitted.” But I suggest that there are scarier things in contracts, and in life, than a familiar section that bears an unfamiliar number.

But in one context you’d need to use “intentionally omitted” so as to avoid renumbering. That’s when some other contract or other document refers by number to a section in the contract being revised and renumbering would cause that section number to change.

By the way, when you use Word’s cross-referencing feature, make sure that you update the fields—coded cross-reference numbers constitute fields—when you save the document. Also, check the option that results in any fields being updated automatically when you print a document.

justified margins A text alignment in which the type in each line of a column completely fills the measure. This creates straight, (usually) vertical margins on both left and right. To achieve justified margins, a composition program must flex the spaces on a line, compressing them or expanding them.

The conventional alternative is a ragged right margin. Here, again, is Felici:

ragged right A text margin treatment in which all lines begin hard against the left-hand margin but are allowed to end short of the right-hand margin. On lines that do not fully fill the measure (nearly all of them), any leftover space is deposited along the right-hand margin. This creates an irregular margin along the right side of the text column.

Although as a general matter I have no problem reading justified text, I dislike it intensely in word-processed documents, including contracts, because I find that it makes them much harder to read. If you wish to do a quick readability test of your own, here is a document with justified, one-inch-margin, 12-point Times New Roman text; here is the same document with a ragged right margin.

I’ve long wondered what renders justified harder to read. I used to think that the problem was that by normal typographic standards, word-processed documents on letter-sized paper contain a relatively high number of characters. (That’s the explanation I offer in MSCD 12.3.)

An unjustified line of 12-point Times New Roman on letter-sized paper with one-inch margins (the standard setup at law firms) contains on average between 77 and 80 characters. That’s more than any recommended limits I’ve seen. For example, Felici says that “the optimal line length is nine or ten words (figure an average of 5 1/2 characters a word),” in other words around 50 to 55 characters. (By the way, I’m not taking into account two-column documents: after flirting with a two-column format, I decided, with the help of some prodding by readers, that it wouldn’t be viable for contracts.)

The high per-line character count in contracts and other word-processed legal documents certainly makes them harder to read. I also thought that because of the high per-line character count, the eye relies that much more on a ragged right margin to help you not lose track of which line you’re on. That help wouldn’t be available when the margins are justified.

But I now think that’s an insufficient explanation for what makes justified text harder to read. For one thing, I find text with justified margins annoying in word-processed documents even when the per-line character count is within recommended limits, as in a two-column document. See if you agree with me: here is a two-column document with justified, one-inch-margin, 12-point Times New Roman text; here is the same document with a ragged right margin.

So if the per-line character count isn’t an adequate explanation, what is? For insight, I consulted Ellen Lupton. Ellen is director of the MFA program in graphic design at Maryland Institute College of Art (MICA) in Baltimore and curator of contemporary design at Cooper-Hewitt National Design Museum in New York City. She’s also author of Thinking with Type: A Critical Guide for Designers, Writers, Editors, & Students. It’s a very informative and wonderfully designed book.

Here’s what Ellen had to say:

The reason that text with justified margins looks bad in a single-column Word document is that subtle word-spacing and letter-spacing algorithms are needed to make justified text look “good,” and Word’s aren’t up the job. So it’s not really the column width that’s the problem, but rather limitations in the software. Many beautiful books are set in single-column justified pages, but they have been properly typeset. Word documents simply should not be justified.

After chewing that over, I’ve come to see that Ellen’s explanation makes sense. When it’s done properly, with good letter spacing, word spacing, and hyphenation, justified text is pleasing to the eye. And it also saves space, because playing with spacing and hyphenation allows you to fit more words on a page. But doing it properly requires a careful designer using a professional page-layout program. That’s a far cry from creating a document using Word or other word-processing software.

Another problem with justified text is that it’s prone to “rivers.” According to Felici, “Rivers occur when word spaces stack one above the other in successive lines of type, creating the appearance of fissuers running through the text.” But rivers have no bearing on whether justified text makes legal documents harder to read: as Ellen notes in her book, it’s narrow columns of justified text that are particularly prone to rivers, and the text in single-column legal documents certainly isn’t narrow.

Does justified text have anything going for it for purposes of word-processed documents? Well, its defenders will tell you that it looks “professional.” But it’s a phony professionalism, in that it comes at the expense of readability, which should be the first priority of any kind of typesetting, including word processing.

So I recommend that you stop using full justification in your word-processed documents, just as you’ve stopped using two spaces after punctuation.

You have stopped using two spaces, haven’t you?

I’ve finally updated the “Software” page of this site to reflect this arrangement. In particular, it includes a link to a set of tips on using the Numbering Assistant to apply the MSCD enumeration schemes.

This is straightforward technology that makes it much simpler to draft contracts that incorporate the MSCD enumeration schemes. I hope that readers of MSCD appreciate this additional resource.

If you’d like a free 30-day trial, click here to send an email to Payne Consulting Group.

I contacted Payne Consulting Group about this several months ago, and they responded enthusiastically. I’m grateful to Donna Payne and her staff for their patience as we worked to make the necessary adjustments to the Numbering Assistant. And my thanks go to the American Bar Association for granting Payne Consulting Group an appropriate license.

The most popularly used text faces today are Monotype’s Times New Roman and Linotype’s version of it, Times Roman. Vast numbers of paperback books and corporate communications are churned out with these faces every year. But in fact, Times is not a classic text face. Designed for use by the Times of London (as its new roman face, back in the 1930s), it has comparatively narrow characters, the better to compose well the short lines of newspaper columns. Book publishers adopted it because it saved them paper.

A typeface of “standard” width has a lowercase alphabet that’s 13 ems long. The relative widths of some common text faces are shown in Figure 5.2 [omitted]. Clearly, Times sets narrower than the rest, and the wider set of the others not only makes them easier to read but also creates a more open impression on the page. This openness is more in proportion with the wider line length typical of books and journals. The lines set in Times in Figure 5.3 [omitted] seem crowded when compared with a more standard book face. With all that room on the line, why crowd the text like that?

Times is probably used inappropriately more than any other typeface today. Ironically, it’s no longer commonly used in newspapers, not even the Times.

Like virtually every other lawyer, when I use a serif typeface (rather than a sans serif typeface such as Arial), I use Times New Roman. But I never made a conscious decision to do so. Instead, I started using Times New Roman simply because it’s the default font in Microsoft Word.

Well, the scales have fallen from my eyes, and I’m now on a search for a typeface to replace Times New Roman. Possible candidates include the new suite of typefaces included with the Microsoft Vista operating system and the Microsoft Office 2007 suite of applications. These typefaces were apparently created for extended on-screen reading, but some are suitable for print. (Go here for more information.)

This is an issue I’ll be looking into over the coming months. Given that lawyers traffic in words, they might as well use an optimal typeface.