“In Other Words”

Posted on September 14, 2009 by Ken Adams

The other day I encountered in other words in a contract. An Edgar search indicates that it occurs often enough to be worth mentioning. In effect, in other words allows the drafter to take a second crack at articulating something. As a general matter, say something once, why say it again?

Posted in Uncategorized | 11 Comments

  • http://www.ontechnologycontracts.com/ D. C. Toedt

    Because people are different. A future reader might have trouble grasping Version A but might more easily grasp Version B.

    I know, ideally the drafter would write Version A so that it’d be precise and understandable by all at first reading. Unfortunately, drafters don’t always have time for that.

  • Jeff Wheeler

    Two thoughts:

    I agree that “in other words” should be a signal to the drafter to lean on the backspace key and take another stab at it.

    I also appreciate what I’m thinking is your nod to vintage Talking Heads lyrics to make that point.

  • Ken Adams

    D.C.: As excuses for suboptimal drafting go, I don’t find “I didn’t have enough time” very compelling.

    Jeff: Yes, you spotted my allusion. I’m showing my age …

    And here’s another reason to avoid in other words: the second way of expressing the concept may not be exactly equivalent to the first, leaving the parties to fight about which controls. A contract refers to “a motorcycle, in other words a powered two-wheeled vehicle”; the parties start fighting over whether a bicycle with an electric motor is a motorcycle for purposes of the contract.

    Ken

  • http://www.andlaw.eu mark anderson

    Well, fly me to the moon, and let me wish among the stars, don’t you know what drafting’s like on Jupiter and Mars? In other words, write crisply.

  • http://www.ardlaw.com Josh Ard

    A very obvious difference in interpretation comes between judges and ordinary readers. This is more important when the readers are not sophisticated. If one purpose is for people affected by the language to understand it (which I know is often exactly what is not wanted), then the drafter may have to express matters in some standard way to get the expected judicial reception but rephrase it in a manner than an ordinary reader can understand. Venturing beyond pure contracts, this often makes sense in estate planning documents. There are magic words needed for tax consequences, for example.

  • Jack

    Josh Ard, not all state judges are sophisticated readers either. Many come from the criminal or personal injury bar more rather than from commercial litigation or transactional practice.

  • Chris

    When I catch myself thinking or writing “in other words,” it simply means that my thoughts aren’t sufficiently clear. It might be a step in the process of getting a first draft on paper, but it’s not a good end point, for the reasons cited above. At least some of the time, giving an example might make more sense.

  • http://www.attorneycharlesthomas.com Charles Thomas

    I have used “in other words” exactly once. It was an appellate brief, and I had just spent the previous five pages making the case that my client had been forced into a Hobson’s Choice, where no matter what course he took at trial, it was going to bite him.

    In a new paragraph I wrote, “In other words, damned if you do, and damned if you don’t.”

    However, I would never imagine putting a phrase like in other words into a contract. It’s practically an invitation to litigate an ambiguity.

    It’s a point I tried to make in a recent blog post of my own – sometimes words are imprecise. Good legal writing chooses the *right* word, as opposed to adding multiple synonyms (e.g. “cease and desist”). Isn’t it easier (and blunter) just to say “stop”? http://www.persuasiveauthority.net/?p=44

  • Matt Aufman

    If you cannot convey your point as clearly as you would like, use an illustrative example; don’t restate the point using different words.

  • http://www.haynesboone.com Jim Brashear

    This phrase is a cousin to “for the avoidance of doubt.” When you see them creeping in to contract drafting, it’s time to re-write for clarity.

  • http://www.sandsanderson.com/attorneys/thomas_bowden.html Thomas L Bowden, Sr.

    Ditto with a capital D to Jim Brashear’s comment. I see this phrase more and more often, especially from younger lawyers at larger firms (at the risk of generalizing). I was taught that good drafting mandates that you say things only once, lest you create ambiguity. The well intentioned draftsman who violates this rule only creates hairline fractures that litigators will hammer on until they become full blown crevasses.