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.
I can go either way, as long as there is consistency within the same document. What I dislike is a definitions section upfront only to begin reviewing the agreement and finding numerous definitions sprinkled throughout as well.
Then we disagree in at least two respects.
I agree with putting the definition second in that example.
Anecdote alert: In about 1990 I was sat in a hotel conference room in San Francisco, negotiating the terms of a trade mark licence agreement, which I had drafted, in the presence of representatives of a dozen or more computer companies, who were all members of the X/Open consortium. One of them, a computer scientist, criticised my drafting for using a defined term before the definition. He called it a “forward reference” which in computer programs apparently causes the program to crash. I tried to reassure him that contracts could have forward references, but I’m not sure he was convinced.
As the words are already known in English, although not yet defined in the contract, it is not a forward reference.
Ken, I added: Mainly because it won’t have relevance to the reader until the term is actually used in context.
Which you have shown is important. so we agree 100% this time.
I revised the post to add that bit!
For long and complicated contracts, it’s super helpful to have all the definitions in one place – at the front, or at the back. I get the importance of context for the reader etc. etc., but contracts and briefs are different animals. The cost of signalling context is too high if it leads to definitions in 300 places in the document – from the perspective of a future reader trying to understand a complex multi-party contract with obligations, triggers, and all kinds of opportunities for confusion.
Sure, but that’s an issue that’s unrelated to what’s discussed in this post. I discuss it at length in my book.
so how does the reader of the contract know there is a definition section in the contract. How I make a my reader always make reference to the defination of the ambiguous term. can i use foot notes?
Sorry, I don’t have time to explain. It’s in my book.
Ken:
I prefer having the usage first, then the definition.
(I also really dislike moving a definition used once (or only a few times, but all together) to a definitions section simply because it’s an autonomous definition. It drives me up a wall. I know this is not on topic, but you triggered it.)
Chris
Agree with you on that, especially if the contract isn’t too long.
1/ Agree with the consensus: usage first.
2/ That definition of ‘Property’ is not the subject of the post, but it looks unnecessarily obfusc and brings to mind that it’s kind to the reader to put long lists of words into alphabetical order unless there’s reason not to.
I agree with providing the definition after the initial usage of a defined term, though I might add the parenthetical (as defined below) after the first use of the a defined term. So I would change the first paragraph to read as follows:
During the Employee’s employment by the Company, the Employee shall disclose to the Company each item of Property (as defined below) promptly after it is conceived, developed, made, or used.
I prefer having the definition come second. When I read a contract with the definitions clause listed first, I almost always skip it, read the rest of the agreement, then come back to it once I know why those definitions matter. Trying to read a list of definitions with no context doesn’t really give me much understanding.
can footnotes be included in a contract to define a term
I wouldn’t do it.
In this specific context, the definition need not come first for all the reasons people have already given. In general, like Elie, I too dislike the idea of having a definitions section and also sprinkling definitions, but if a word is only used once and it’s important to the concept under consideration as it is here, it can make more sense to define it in the immediate neighborhood rather than send someone elsewhere.
But I don’t like this particular definition and I’m sure Ken didn’t draft it, because, well, isn’t an “enhancement” an “improvement” and aren’t both also “modifications”? How much difference is there really between a “concept” and an “idea”? When you “conceive” and “make” aren’t you essentially “developing”, and isn’t it also a bit redundant to “conceive” of a “concept”, since both come from the same Latin root?
Yes, that’s mostly someone else’s work. I might return to it at some point.