Family! One day you’re unaware that they exist, the next day they’re hocking you relentlessly.
I’m speaking of course about Joshua Stein, my newfound second cousin once removed, recently introduced to readers of this blog in this post.
I was minding my business late one night when an email from Joshua invaded my inbox. Here’s the meat of it:
I was hoping MSCD would say section cross references are bad and should be avoided. I have found that one can ALWAYS avoid section cross references by using defined terms and to a lesser degree other mechanisms. I hate cross references because they waste mental energy; create an unreasonable risk of mistakes; make a document feel legalistic and inaccessible; and divert the drafter. I was hoping you would ban them. But you seem to treat them as an ordinary and perfectly reasonable element of contract drafting … perhaps not a preferred element but nothing really awful. So I am very upset.
Repressing the urge to tell Joshua that his use of two spaces between sentences was making me very upset, I responded as follows:
What do you want from my life! MSCD 4.90 says, “Generally, the fewer cross-references in a contract, the better.” But sometimes they’re unavoidable.
Joshua shot back with the following:
They are NEVER unavoidable. Or, to express it in a somewhat more affirmative manner (one negative instead of three negatives), one can always prevent cross references. I have over a thousand model documents and my policy is to have NO cross references. In any document that I have carefully edited, I always follow that policy. There are no exceptions. One consequence: I don’t really need section numbers, although I think they do serve a purpose of showing hierarchy.
OK. Let’s take it from the top:
I’ve divided cross-references into “pointing” cross-references, which simply point to another section, and “prioritizing” cross-references, which indicate (using subject to, except as otherwise provided in, and the like) that in some way one provision takes priority over another. It’s preferable that a reader be able to understand each provision on its own, without having to turn to another part of the same contract or to another contract. Prioritizing cross-references can be particularly disruptive; in quantity, they’re a sign of inefficient structure.
But eliminate all cross-references? That isn’t something I’ve contemplated. In fact, Joshua would have been really upset if he had known that I’d just completed a draft of an 18-page contract that contains—count ‘em—61 cross-references, all but a couple of them pointing cross-references.
Sure, I could have used defined terms as a way of omitting many of those cross-references. For example, instead of referring to “a notice that the Buyer delivers under section 3.3(a),” I could have referred to “a Defects Notice.” But loading up on defined terms is no panacea—defined terms create clutter and make a contract harder to read, so you should create a defined term only if the concision and consistency it offers outweigh the drawbacks. As regards my draft, I didn’t refer to that particular notice often enough to warrant lumbering the draft with another defined term.
And a non-trivial proportion of the pointing cross-references in that draft don’t refer to other sections but instead to the section or subsection containing that cross-reference (as in, “this section 5″ or “this section 5(a)”) or, if the cross-reference is in a subsection, to some other subsection of that section (as in, “section 5(b)”). You could call such cross-references “self-references”—or “selfies”! Because selfies don’t direct the reader to some other part of the contract, they inflict minimal distraction on the reader.
As another argument against cross-references, Joshua suggested that they’re a fruitful source of disputes. He mentioned that confusion over a cross-reference had played a role in Pillsbury’s malpractice dispute with SonicBlue (described generally in this article). But I did a quick search on WestlawNext and was unable to find any court opinion that involved an incorrect cross-reference that gave rise to a dispute.
Of course, manually updating cross-references is hellaciously annoying. But if you don’t use automated cross-references, I invite you to join me in the twenty-first century.
So as regards my use of cross-references, I’m inclined to stand pat. Readers, I invite you to weigh in on this family squabble.