Are you familiar with broken-windows theory? Here’s the gist of it from the 1982 article in The Atlantic that introduced the theory:
Social psychologists and police officers tend to agree that if a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken. This is as true in nice neighborhoods as in rundown ones. Window-breaking does not necessarily occur on a large scale because some areas are inhabited by determined window-breakers whereas others are populated by window-lovers; rather, one unrepaired broken window is a signal that no one cares, and so breaking more windows costs nothing. (It has always been fun.)
I wouldn’t dream of offering any views on the underlying validity of the theory as criminology or how it’s playing out as social policy. Instead, I limit myself to suggesting that it can be applied, by analogy, to contract drafting.
Consider the following instructions, which featured on a list I gave students taking my course at Notre Dame Law School:
- Use automated cross-references for all section cross-references.
- Use a hard space in cross-references, between the word and the enumeration.
- Use a hard space after the enumeration of integrated enumerated clauses.
- Don’t hit Tab to create a first-line indent.
- Don’t hit Enter to add space after a block of text.
- Use one space between sentences, not two.
- Don’t leave extra spaces at the end of a block of text.
- Don’t use first-line indent in unenumerated blocks of text (for example, the introductory clause).
- Make sure your apostrophes and quotation marks are “curly.”
- Don’t bold the quotation marks when you create a defined term.
If my students weren’t aware of it beforehand, this would have given them a clue that Adams is a little … persnickety.
Each item on that list has merit, but whether or not my students comply with these instructions would have no direct bearing on how their assignments are worded. So why be a ball-breaker and hand down these instructions?
Because as a function of human nature, I suspect that if a drafter sweats the small stuff, they’ll be more inclined to look after the big stuff too. All I have to support that is anecdotal evidence of the broken-windows sort, plus what I’ve observed of my own tendencies.
As a corollary of that, I think readers—particularly those on the other side of a deal—might bring more attention to bear in reviewing a draft if they see small details handled sloppily. You can call that blood-in-the-water theory.
[Photo of broken windows courtesy of lifeofpix.com.]
Ken:
Word tips for two of these:
– Search for two spaces (space-space) and replace with one space. Repeat until no more are found.
– When search for a quotation mark and replace with a quotation mark. If you have duly quotation marks on, this will replace all the straight quotation marks that you inherited in the document. Same for apostrophes.
And one more nit pick —
Don’t leave spaces after the end of paragraphs. (Search and replace tip in Word: search for a space, then ^p, and replace with just ^p.)
But the big thing I’d emphasize is learn to use Word styles and never format text other than by way of a Word style.
Chris
Ken, is there a good resource for learning how to do automated cross-references and section cross-references? From googling, I’ve pieced together a *usable* way to do it, but it’s pretty clumsy. Any instructions or advice where to look?
Thanks!
It involves just a few key strokes, so I don’t think I could do better than whatever you find online. Select the “full context” option, so a reference to “3(c)” captures not just the “(c)”.
In the UK, the list would be evidence that Adams is ‘pernickity’.
Two questions:
1/ If the other side gave you its first draft, would you modify it on account of any of those ten typographical rules, or are they all subject to first draft etiquette?
2/ Have you an analogous list of ten substantive rules obedience to which would vastly improve any draft or precedent contract? –Wright
I sweat these things because they make documents easier to read, navigate, and edit. I recently had to make substantial revisions to an agreement that did not bother with any of these except for #8 and #10. Fortunately, it was not very long.
I agree with the principle (sweating the small stuff) but not all of the substance, just as I do (in this area) in relation to MSCD. The key issue for me is consistency. My mental checklist is much longer. Eg don’t have a list of items where each item ends sometimes in a semi-colon, sometimes in a comma or full-stop. Don’t sometimes put “or” after every item, but other times only after the penultimate item. Where deal-specific items have been added to a template list, check that any lead-in wording works with the new items – sometimes the grammar is wrong. Check that the font for the numbers is the same as for the text – easy to get wrong if one is in Arial and the other in Calibri. And many more.
This is partly about demonstrating care and attention to detail, which will reassure any supervisor as well as the other side in negotiations. And the client. Not least the client.
Who said anything about substance? The point of this list is that it deals with ostensibly trivial formatting issues.
I’m sure your checklist is bigger than mine. Beyond the list in this post, which serves a limited purpose for a limited group, I don’t have a checklist.
This is true. In my career as in-house counsel, I never read a contract prepared by the other side that had only a few formatting errors. It was either mostly “clean” or mostly ugly. Banks and credit card companies’ contracts were especially a pain with stupid formatting and legal jargon galore. All of these folks should sign up for your seminar PDQ!