[Updated 1 January 2018: Revised to reflect that the photo included in Bryan Garner’s tweet features not exceptions (as I originally stated) but conditional clauses.]
I noticed an exchange between D.C. Toedt and Bryan Garner. Because it allows me to address a moderately interesting issue, namely where in a sentence you should put a conditional clause, I permit myself to wade in.
The starting point is this article by Garner in the ABA Journal. Here’s the gist of it:
Keep in mind two principles for creating readable prose: (1) A fair percentage of sentences should begin with short contextualizing phrases, often adverbial. (2) A fair percentage should begin with one-syllable transitional words—normally But, Yet, So or even And.
This advice is entirely standard and unobjectionable, but it has no bearing on contracts. Bryan’s audience is lawyers who are “professional rhetoricians.” That doesn’t include contract drafters: contracts aren’t the place for telling stories or persuading.
Nevertheless, in this post on his blog, D.C. uses Bryan’s article to make this point about contract drafting:
In a contract, it’s less important for the writing to pack a punch than it is for each sentence to make its point quickly, precisely, and understandably, so as to help speed up legal review and get the contract to signature sooner. And that will usually call for the kind of boring, just-the-facts-ma’am style — Alice will do X, Bob may do Y — that Garner urges writers to avoid.
But in applying to contract drafting Garner’s points regarding rhetorical style, D.C. is comparing apples and oranges: it makes no sense. But D.C. avoids facing that because he includes no examples.
Bryan responded with this tweet. In addition to pointing out that D.C. had offered no examples, he says this:
The principle of end weight—putting emphatic words at the ends of sentences to avoid syntactic fizzle—applies almost as strongly to contractual drafting as in other expository prose.
So now Bryan too is comparing apples and oranges. This general proposition leaves me flummoxed.
But Bryan’s tweet includes this photo:
Ah, now we’re getting somewhere! The two examples in this photo in fact relate to a narrow issue: where in a sentence you should put a conditional clause. (Each of the “But This” examples in the photo begins with a conditional clause using the subordinator unless.)
Here’s what MSCD 3.326 says about where to put the conditional clause:
The traditional place for a conditional clause is at the beginning of a sentence, but you should place it elsewhere if doing so would make the provision easier to read. The longer the conditional clause, the more likely it is that the provision would be more readable with the matrix clause rather than the conditional clause at the front of the sentence. If both the conditional clause and matrix clause contain more than one element, you would likely be better off expressing them as two sentences.
What explains the tendency to put the conditional clause first, in contracts as well as other kinds of writing? It has nothing to do with emphasis. After all, whether a matrix clause comes after or before a conditional clause is a function not of how “emphatic” it is—whatever that means—but instead is a function of which requires more effort to read. Perhaps putting the simpler component first reduces the risk that it gets lost. I’m not going to speculate on this now, as it’s not specific to contract drafting. If you have any ideas, you’re welcome to chime in.
Avoiding confusion might also be a factor. Consider “Ex. 1” in Bryan’s photo. Putting the conditional clause at the end in the “Not This” version arguably creates syntactic ambiguity: one could get into an argument over whether the condition applies to everything that precedes it or applies just to “free from all tenancies.” If you put the conditional clause at the front, you avoid that uncertainty. Mind you, depending on how a matrix clause is structured, putting the conditional clause at the front could result in syntactic ambiguity; see MSCD 12.23.
So where do we end up? Bryan’s ABA Journal article doesn’t apply to contract drafting. By contrast, the examples in the photo in his tweet relate to all kinds of writing, including contract drafting. But Bryan doesn’t identify the narrow issue involved, so it might seem that he’s making a more general point; that’s not the case. And he seems to misidentify what’s at stake. I hope this post makes things clearer.
Fruit Salad!
Um, point taken. I hope it’s nevertheless clear that what I meant is that contract language doesn’t serve a rhetorical function.
You’ll be happy to know that in my rewrite that bit ended up on the cutting room floor …
This is a critical point. In prior life, I used to write engineering procedures for nuclear power plant operations. Through hard-won experience, the industry had learned that it was absolutely critical to make sure that procedural exceptions could not be overlooked, despite our human tendency to stop reading as soon as we think we understand the point. Thus, the rule that the exceptions must be stated before the action or policy was as close to sacrosanct as anything I can recall. (Sacrosanct in terms of how to avoid being tagged as the root cause of a serious incident in the painful incident critique that followed.)
(When I changed over to law I wondered — as I occasionally still do — why litigation and especially appeals caused by statutory ambiguity don’t cause an investigation and inquiry into the root cause of the costly confusion — was it that we did not know what we wanted to say, or did we not know how to say it in a way that our intended audience would understand, or were we just Dunning-Krugering along, not even aware of what we didn’t know about what we thought we had written.)
Check out the revised version of this post.
How can it be right to start each clause with the same routine ,”unless” phrase? It makes it harder to skim and get to the meat if the clause. I would think for contracts it would be the opposite of nuclear engineering instructions.
When would you need to say “unless otherwise provided in this agreement”? You could start every clause in the contract with that mantra. Surely that is just a form of throat-clearing.
I just disagree with ‘the principle of end weight’, which I see as just somebody’s crazy assertion. I was always taught that for clarity, you express the core idea first, not last. Plus, irrespective of nuclear engineers’ proclivity for not reading all the way through, you still need to read the contract (or clause) as a whole.