Drafting mistakes are mainly of interest to me for the lessons I can deduce about how not to draft; I don’t particularly care how the mess is cleaned up. But sometimes I’ll pause to examine the wreckage.
In that spirit, I recently read this article by Alison Frankel for the American Lawyer. It describes as follows the circumstances leading to a lawsuit on appeal before the Seventh Circuit Court of Appeals:
A class of Bell Atlantic pension plan participants filed suit against Bell successor Verizon, claiming that Verizon miscalculated—by $1.67 billion!—the lump-sum cash payments they were due because it applied a particular multiplier only once, not twice. It turned out that the sentence in the ERISA plan that implied the multiplier should be applied twice was a drafting error: An in-house Verizon lawyer inadvertently neglected to delete a phrase about the multiplier from the end of a sentence after he inserted the same phrase in the middle of the sentence.
The Seventh Circuit affirmed the holding of the lower court declining to enforce the plan provision with the mistake. Apparently, an important factor was that no one relied on the mistake.
I recommend that you not take away from this case that the courts will save you from your mistakes. I’m not inclined to start researching the caselaw on mistake, but I recall that in one case—I wrote about it in this August 2008 blog post—the court declined to save a contract party from the consequences of a drafter’s having inadvertently used the word less instead of more. I’m confident that I could easily enough compile one list of cases where the court cut some slack and another list where the court let a contract party live with the consequences of mistake.
Of course, hoping for a favorable outcome from the courts after having made a mistake is a distant second to not making a mistake in the first place.
I'm not sure I understand your point. No one chose to play roulette with the courts, a lawyer made a mistake in revising a document that ran to several hundred pages with its exhibits. The first line of that opinion cites another Supreme Court opinion from this year:
"People make mistakes. Even administrators of ERISA plans." Conkright v. Frommert, 130 S.Ct. 1640, 1644 (2010).
Sometimes plaintiffs' lawyers seize upon an anomaly like this and try to turn it to their advantage. ERISA plans are reviewed ad nauseum by numerous fresh eyes. We all try not to mistakes – we run comparisons, we have several people review, we put the documents down and re-read the next day after getting some rest, and on and on.
I guess I don't get your point. You said "I recommend that you not take away from this case that the courts will save you from your mistakes." Do you think people are deliberately doing sloppy work because they think they'll be bailed out later if someone notices? Because I can't imagine someone making a mistake, realizing it, then saying "ah, whatevs… the courts will bail me out." (At which time it's no longer a mistake, by the way; it's deliberate)
Random: I'm saying that one's better off not making mistakes, and that if you do make a mistake, don't expect courts to bail you out. I didn't mean to suggest that people let mistakes go because courts will save their bacon; because my closing sentence might have conveyed that impression, I tweaked it. Ken
Ken:
I take your point well. Of course no one purposefully hopes the Court will bail them out. However, I also know that, when the rule is absolute and strict, lawyers are extra careful. (For example, lien mistakes cannot be "corrected" later, so lawyers spend extra time going over the details, just to be sure).