One of the participants at my recent Chicago seminar discussed with me what he described as the “optics” of contract drafting.
What he was referring to was the value of not waving a red flag at the other side. He provided the following example of alternative section headings:
Limitation of Customer Remedies.
Aaron preferred the second heading—why have the lawyer for the customer expect the worst, before they’ve even read the section in question?
I agree with Aaron, but only up to a point.
If a given section includes provisions that might give the other side pause, clarity doesn’t require that you flag just those provisions in the section heading. And doing so anyway would seem counterproductive.
But you don’t want to be misleading. If the section in question says, in effect, “The Customer will be entitled to no remedies” and you give it the heading “Customer Remedies,” a court might decide that the heading is misleading and that the section is therefore unenforceable. There’s caselaw to that effect, although a sophisticated party represented by counsel might have a hard time claiming that it was misled by a section heading.