Among other observations in this thoughtful comment, a reader suggested that some of my comments on the Google–Motorola merger agreement could be attributed to “stylistic matters.” He pointed out as an example my objecting to using Section, with a capital S, in cross-references.
I responded as follows to that part of his comment:
I’m not inclined to tag certain drafting decisions as being “stylistic” and therefore immune from comment. If I understand correctly, you give as an example using a capital S in “Section” for purposes of cross-references. But that’s just one example of overuse of initial capitals; cumulatively, it’s distracting. There’s no good reason not to follow an established set of guidelines, namely those in The Chicago Manual of Style.
The idea is that in the vast majority of cases, out of the alternative ways of approaching a given drafting issue, one will be clearer or more efficient. By contrast, the notion of “style” suggests a choice that has no bearing on clarity or meaning. There’s very little scope for that sort of choice in contract drafting.
After responding to that reader, I asked on Twitter for suggestions regarding “stylistic” choices in contract drafting. Longtime reader @JFBrashear suggested a good one—whether to use “the Contractor” or “the Vendor” as the defined term for a party name. The same goes for choosing between “the Buyer” or “the Purchaser”.
Another “stylistic” choice might be whether you put the signature blocks one on top of the other on the right or on the left or whether you put them side-by-side.
I haven’t racked my brain, but those are the only two I’ve come up with so far. Can you suggest any other “stylistic” choices?
Ken, taking it from the top:
– whether to say “by, between and among” or “between”
– whether to say “it is agreed as follows” or “the parties agree as follow”
– whether to put the definitions in two columns, and in alphabetical order
– whether to put defined terms in block capital letters, or to signal them more discreetly, eg by capitalising the first letter, or by putting them in bold text or italics
– whether to use a number system of 1.1.1 or 1(A)(i) or some other variant
(I’ve got bored now)
I think it is legitimate for an author or teacher to comment on stylistic issues, not least because, in my view, we should strive for simplicity and clarity in contracts. Personally, I don’t like Vendor (to take one of your examples), as it is not an everyday word – Seller is much better. Some of our choices in these matters are affected by conventions of language, which vary between countries. But none of the above example, nor your earlier ones, is likely to affect the legal interpretation. I agree with your earlier commenter that, if reviewing another person’s draft, it would usually be inappropriate to change stylistic points. I once changed a numbering system in a first draft that was bizarre – A, B, C for main clause numbers in a lengthy agreement – but have been uneasy about doing this ever since as it probably didn’t help the negotiations.
Mark: I agree that preferring one usage over another doesn’t have to involve alternative meanings. Instead, it’s enough that one usage be clearer or more concise than the other.
By that standard, I’d always prefer between over by, between, and among. I’d even prefer between over insisting on a precious and pointless distinction between between and among.
And I’d prefer the parties agree as follows over the passive-voice it is agreed as follows. In this context using the passive voice isn’t wordier, and it doesn’t pose any risk of confusion, but I think it’s best to be in the habit of using the active voice except where the passive voice serves a purpose (for example, when the actor is not yet known).
Regarding putting the definitions in two columns, are you thinking of an index of defined terms? I’d always use two columns, so as to save space, and not putting them in alphabetical order would seem gratuitously confusing. If you’re thinking of the definition section, why single that out for a two-column format?
It’s very distracting to put defined terms in all capitals or emphasize them by means of anything other than initial capitals. Using LANDLORD throughout a contract? Yikes!
And I’m perhaps one of the few people on the planet who can get worked up about enumeration. For example, I think the multiple-numerations system (1.1.1) is a real pain.
Regarding Vendor, in the U.S. it’s in common usage in commercial circles. It conveys the notion that a party is in the business of selling the items in question, as opposed to selling something in a one-off transaction.
To reiterate, these are choices open to the drafter, but not the reviewer.
Ken
Ken, in my view best practice is to put definitions in two columns, with the defined word in the first column and the definition in the second column. This makes it easier to find and read the definition. There is also a sort function in Word that enables you to reorder the definitions if they have become out of order, which sometimes happens during negotiation if a term is changed. Use of two columns in the definitions clause occurs frequently in English contracts, but less frequently, in my experience, in US contracts. I am tempted to generalise about the stylistic differences between contracts drafted by East Coast law firms and West Coast, respectively, and that West Coast contracts sometimes look more familiar to an English lawyer than West Coast, but that may be too esoteric even for a contract drafting blog!
Mark: Your two-column technique is intriguing. I’ll give it a test drive.
As regards East Coast v. West Coast, I invite others to suggest any differences they’ve spotted. Perhaps we can get a rap-style feud going …
Ken
Mark:
In MS Word, do you use a table for this, or truly use columns?
chris
Chris, you’re right, I do mean tables (two-column tables).
Very interesting – while I don’t like to bore American lawyers about why I dislike the style of their contracts (I doubt they care), I also tend to prefer contracts drafted by West coast firms to those drafted by East coast firms, and I agree that West coast style seems more similar to English style.
West coast firms seem less likely to use Times New Roman and more likely to format paragraphs as English firms tend to (i.e. with no indenting). I think they also have shorter paragraphs and enumerate them more clearly, and are less prone to heading their agreements “W I T N E S S E T H” (with each letter indivudually underlined in some cases).
Purchaser vs. Buyer is not merely stylistic. The Latin based term takes more key strokes and more room on the page, and is less used in every day speech. The same is true of using Vendor when you could say Seller.
What about the choice between typing “section” and simply using the section sign?
Jack: OK, you’ve convinced me on Purchaser versus Buyer. And probably Vendor versus Seller too.
As regards section references, I’d be inclined to stick with the word rather than the symbol. I haven’t yet found any guidance in books on general English usage. For what it’s worth, The Bluebook (18th ed.) says “spell out the words ‘section’ and ‘paragraph’ in the text.” Thanks for raising this issue; expect to see it mentioned in MSCD 3d ed.
Ken
Chris: Them’s fightin’ words! If you don’t mind, I’ll respond next week; I’ll have to be in my Zen document-formatting frame of mind … Ken
Ken;
I respectfully disagree with the suggestion that the distinction between “Purchaser” and “Buyer” is not stylistic simply because the first entails more keystrokes than the second. I agree with Chris Lemens’ comments on numbering, but rather than give specific examples I would define a “stylistic” choice generically and by exclusion – namely as a specific linguistic formulation other than one that (a) is grammatically incorrect, (b) creates ambiguity, (c) incorporates redundancy or (d) is drafted specifically so as to conform to an external source (e.g., a statute or extrinsic agreement).
If the number of keystrokes is determinative of proper drafting, then why wouldn’t we use the section and paragraph signs instead of writing the words in full? Also, shouldn’t we use “contract” rather than “agreement”, “lawyer” rather than “attorney”, and so on. I think these are in fact the essence of stylistic choices and not something that should preoccupy us when reviewing an agreement.
Andy
Andy: In the absence of other considerations, I’m all for using the shorter and simpler word. And I can’t think of any reason why I should use Purchaser rather than Buyer.
Your word-choice alternatives remind me of something that I forgot to mention in my post: Often the English language offers you different ways to say the same thing, and which alternative you choose could be deemed a matter of style. That applies to any prose, including contract language. In writing this post, I was focused on a narrower topic, namely usages that are particularly relevant to contracts.
And remember, this post was written from the perspective of the drafter, not the reviewer. Everything is fair game for the drafter; the reviewer has much more limited discretion.
Ken
Ken – No disagreement here. Electing to use specific words simply because they are “shorter and simpler” is not objectionable. It is the very essence of a “stylistic” choice and, without doubt, the prerogative of the drafter. And (to return to my original theme) the least of the problems we routinely encounter in contract drafting.
Andy
Andy: For my initial question to make sense, one has to define what “style” means. I took it to refer to an exercise of discretion that’s unrelated to clarity and concision. In other words, if I say “Acme shall purchase the Shares” rather than “Acme agrees to purchase the Shares,” that’s not a style choice. Instead, I’m rejecting a suboptimal usage in favor of a clearer one. My meaning may be too narrow; it may be entirely appropriate to say instead that that choice represents a style choice. But if that’s the case, style perhaps ends up encompassing all decisions a drafter makes regarding what building blocks to use. Ken
You do get the irony here, Mr. Author of the MSCD, right? :)
Jeff: Well #@*&^% me sideways! I hadn’t thought of that! Yikes!
I chose the title I did as a way of invoking The Chicago Manual of Style. As used in the title of CMOS, “style” refers to the conventions used within a given organization. That’s different from the meaning given to style in this post. Well, that’s my story, and I’m sticking to it!
By the way, my daughter routinely scoffs at my misuse of the word “ironic,” so I’m leery of using it at all. In this context, maybe the appropriate word is “paradoxical.” Who the heck knows.
At any rate, thanks for pointing this out!
Ken