Recently I had occasion to revisit an issue I thought long settled. Because it involves reader comprehension generally, I took the liberty of buttonholing people involved in legal writing but not contract drafting.
Here’s what I asked them:
Below are two sentences. The second is the definition of a key defined term used in the first. Necessarily, one has to come before the other. Which arrangement do you think makes it easier for the reader to understand what’s going on? Definition first? Or definition second?
Here are the sentences:
During the Employee’s employment by the Company, the Employee shall disclose to the Company each item of Property promptly after it is conceived, developed, made, or used.
In this agreement, “Property” means all inventions, discoveries, developments, methods, processes, compositions, works, creations, concepts, ideas, names, personas, identifiers, enhancements, modifications, and improvements (in the case of each of the foregoing, whether or not patentable or copyrightable and whether or not it constitutes a trademark, trade secret or other proprietary right) that either solely or jointly with others the Employee conceives, develops, makes, or uses (1) within the scope of the Employee’s duties as an employee of the Company, (2) as a result of the Employee’s use of the Company’s resources, including personnel, facilities, equipment, and supplies, (3) during the Employee’s ordinary business hours or at the Company’s expense, or (4) as a result of the Employee’s use or knowledge of Company information.
Because we evidently share the same hairdresser, I first asked Jason Steed, aka @5thCircAppeals, an appellate attorney and blogger at forma legalis. Jason said that he had a “slight preference” for putting the definition second, “so the reader has a posited requirement in hand, to help her understand why ‘property’ is being defined.”
Cheryl Stephens (@CherylStephens), all-round plain-language person (information at www.plainlanguage.com), was of the same view as Jason, and was similarly low-key: “I don’t think it matters which is first, although I prefer seeing the definition second. Mainly because it won’t have relevance to the reader until the term is actually used in context.”
By contrast, Gary Kinder—writer, teacher, and founder of the software WordRake—didn’t mince words:
I strongly prefer the arrangement as it appears below, with the definition coming second. An analogy I used to teach to litigators writing briefs: “Don’t tell us who they are, until you’ve told us what they’ve done.” Until the judge sees something happen, she has no reason for wanting to know details about one of the parties. Your first sentence gives me a reason for wanting to know how the Company defines “property.”
So all three were of the same view—put the definition second. I share that view, and I feel as strongly about it as Gary does. The reader will be in a better position to do the hard work of slogging through the definition if they know how the defined term is used.
That this makes sense becomes clearer if you’re dealing with a provision that contains two or more defined terms that are defined “on site,” adjacent to the provision. If you were the reader, would you want the provision to be buried below, say, four autonomous definitions? I wouldn’t.
I state my preference in MSCD 6.21. Why revisit it? Because recently I was surprised to have someone gave me grief about this, so I thought it worth demonstrating that I wasn’t delusional. My thanks to Jason, Cheryl, and Gary for sharing their thoughts.