An Example of Industry-Wide Elegant Variation: Ways of Saying Keep Confidential Information to Yourself

I’ve written previously about “elegant variation.” Here’s what I said in this 2015 post:

Elegant variation—going out of your way to avoid using the same word or phrase twice—is never a good idea. It’s particularly unfortunate in contract drafting, in which tone plays no part. If you wish to convey the same meaning, use the same word. If you think you’re exploiting shades of meaning by using, say, right away instead of promptly, you’re fooling yourself, as no such distinctions exist among vague words and phrases of that sort.

What I haven’t said previously is that the problem manifests itself not just in individual drafters but also industry-wide, in different drafters saying the same thing umpteen different ways. It slows down reading and comprehension, and it’s a source of potential confusion and disputes.

Here’s just one example: some of the many different ways to say how a recipient of confidential information should keep that information to themselves:

  • shall keep in confidence all Confidential Information
  • shall treat in confidence all Confidential Information
  • shall treat as confidential all Confidential Information
  • shall regard as confidential all Confidential Information
  • shall preserve in confidence all Confidential Information
  • shall keep in confidence all Confidential Information
  • shall maintain in confidence all Confidential Information
  • shall maintain the confidentiality of all Confidential Information
  • shall maintain the secrecy all Confidential Information
  • shall hold in confidence all Confidential Information
  • shall protect all Confidential Information against disclosure
  • shall safeguard all Confidential Information
  • shall keep secret all Confidential Information
  • shall not disclose Confidential Information
  • shall not make any disclosure of Confidential Information
  • shall not communicate Confidential Information
  • shall not divulge Confidential Information
  • shall not reveal Confidential Information
  • shall not publish Confidential Information
  • shall not transfer Confidential Information
  • shall not permit access to Confidential Information
  • shall not make Confidential Information known to
  • shall not allow Confidential Information to be obtained
  • shall not publish Confidential Information

I say shall not disclose, and that’s it. (Not using confidential information is a different matter.)

It would be futile to expect that exhorting drafters to be uniform in their drafting would have any effect. The only way to make a difference would to establish and maintain a comprehensive library of automated templates and have it be of a quality and convenience, and at a price, that makes it a compelling alternative to copy-and-pasting.

In addition to allowing you to save time and money and reduce the risk of getting into fights, it would make life easier by always saying the same thing the same way.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.