Drafting as Writing

When an Entire Provision Is Redundant

I’m used to thinking of redundancy (actual or potential) as occurring at the level of parts of speech. For example, in doublets or triplets of adjectives (null and void). Or verbs (indemnify and hold harmless). But I’m becoming more attuned to redundancy of entire provisions. (By provision, I mean a complete utterance, whether a sentence or part of a sentence.) … Read More

You Know Ambiguity, Now Meet the Reader Miscue

You all know about ambiguity; I’ve done untold dozens of posts about ambiguity; go here to see a bunch of them. Ambiguity is what gives rise to alternative possible meanings. A reader miscue is different. It’s what happens when the reader starts going down the road to ambiguity, realizes that something is amiss, and backtracks. MSCD contains a few scattered … Read More

Using a Bruce Springsteen Lyric to Explore Buried-Verb Alternatives

As I was driving in my car yesterday, the Bruce Springsteen song “Streets of Philadelphia” came on. The second line of the lyrics caught my attention: “I was unrecognizable to myself.” It wasn’t because of the imagery or anything hifalutin like that. Instead, I noted that use of the adjective unrecognizable was an interesting choice. For most utterances, you could … Read More

Where in a Sentence Should You Place a Conditional Clause? (Plus Observations on the Nature of Contract Language)

[Updated 1 January 2018: Revised to reflect that the photo included in Bryan Garner’s tweet features not exceptions (as I originally stated) but conditional clauses.] I noticed an exchange between D.C. Toedt and Bryan Garner. Because it allows me to address a moderately interesting issue, namely where in a sentence you should put a conditional clause, I permit myself to wade … Read More

“It Is Emphasized That”: More Rhetorical Emphasis for Your Enjoyment

I’m sure you recall this 2016 post, in which I listed words and phrases used to add pointless rhetorical emphasis to a contract. Well here’s another such phrase, and it’s a beaut: it is emphasized that. Ain’t nothin more emphatic that using the word emphasized. Here’s an example: It is emphasized that the designer of the unit is not entitled … Read More

When the End of the Sentence Does Double Duty

The first extract below is from a contract I’m redrafting; the second extract is my version. … that permits the disclosure by Institution to the Sponsor and the Sponsor’s employees, agents, and independent contractors and use by the Sponsor and the Sponsor’s employees, agents, and independent contractors of data collected from the Study subject. … that permits the Institution to disclose to … Read More

Another Lesson in Purging Contracts of Elegant Variation

Here’s something 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, … Read More

A List of Rhetorical-Emphasis Contract Usages. (Can You Add to It?)

A feature of traditional contract drafting is adding to provisions that already express the desired meaning usages that serve only to say, And we really mean it! I refer to that as “rhetorical emphasis.” Recently I came upon such usage, in any way. I decided it was high time that I compile a list; you’ll find it below, with an example accompanying each usage. Can … Read More

Once More, With Feeling: Why I Don’t Use the Phrase “Plain Language”

In an article (here) that otherwise isn’t relevant to this post, I saw the following: Plain language contracts seem appealing but tend to be imprecise and are often used to mask pretty egregious terms. Using folksy words to tell someone you can terminate them at will without remedy and that they have no recourse doesn’t make it any better. I haven’t … Read More

Using “Breach” as a Verb Instead of a Noun

As a credo, you could do worse than “Abstract nouns, bad! Verbs, good!” Using verbs instead of abstract nouns allows you to be more economical, and it ensures that you don’t play that favorite game of drafters, “Hide the Actor.” The word breach can be both a noun and a verb. I’ve improved the following examples by replacing the noun … Read More