The Notion of “Tested” Contract Language
LinkedIn is the place where dead ideas go to be endlessly reborn from their ashes, like a phoenix. One such idea is the notion that it’s risky to abandon the legalese featured in contracts, because courts have told us what those words and phrases mean.
My first blog post about this notion of “tested” language was this 2006 blog post. Since then I’ve revisited the subject in this 2013 post, this 2016 post, this 2017 post, and this 2023 post. Now I’m at it again, because of this LinkedIn post by the estimable Krysta Johnson.
In her post, Krysta says, facetiously, “Admit it – All legal professionals that work with contracts have their favorite legalese.” In a comment, someone says this:
This drive for plain English ignores the hundreds of years of litigation settling what exactly certain wording actually means.
Yes, it’s context driven, but some of the “plain English” drive creates more ambiguity and uncertainty than some of these old fashioned terms that are understood and clear.
In a reply to that comment, I asked the commenter, “Are you willing to propose examples of ‘tested’ legalese that’s legit?” They pointed me to Mark Anderson and Victor Woroner’s book Drafting and Negotating Commercial Contracts, on the grounds that “Mark Anderson sets out a good number of terms and the litigation surrounding them.”
That’s bewildering, as it suggests that litigation over the meaning of a word or phrase is by itself enough to make that word or phase “tested,” regardless of the nature of the ligitation. I have a different take. Here’s what my 2006 post says:
If contract language came to be tested, it’s because it failed to clearly state the intent of the parties. Why rely on language that resulted in litigation? Instead, express any given concept clearly, so you don’t have to gamble on case law breathing into it the desired meaning.
An Example: Including But Not Limited To
When it comes to contract language, dealing in generalities isn’t helpful. Let’s consider an example of ostensibly “tested” contract language discussed in the comments of Krysta’s post, namely the phase including but not limited to. The commenter I quote above notes in another comment that including but not limited to is “Essential to avoid the Expressio unius est exclusio alterius rule.”
Eight and a half pages of A Manual of Style for Contract Drafting are devoted to including. Of those pages, six are devoted to discussion of using including to introduce an illustrative list. Here are some snippets:
In interpreting contracts and statutes, courts have routinely held that including or includes introduces an illustrative list. …
But a drafter might ill-advisedly use including or includes to introduce what could only be an exhaustive list, or might use an overbroad noun before includes or including, so the list that follows better expresses the intent of the parties.
That’s presumably why many courts have accepted that including and includes can also introduce an exhaustive list, or a list that limits the scope of the preceding general noun or noun phrase—in other words, that they can express a restrictive meaning. …
Due to this uncertainty regarding the meaning of including and includes, regrettably it’s now standard practice for drafters to use the phrases including without limitation and including but not limited to (and their equivalents using includes) with the aim of making it clear that the unrestricted meaning applies.
…
But there are two problems with using this approach to make it clear that the unrestricted meaning applies. First, given that the illustrative meaning of including and includes is the primary meaning, usually the extra verbiage would be redundant.
…
And second, courts are willing to hold that including or includes is restrictive even when so modified, so you can’t assume that the extra verbiage would ensure that a court attributes an illustrative meaning to including or includes.
That’s why MSCD says that including but not limited to and its variants “are more more trouble than they’re worth, and they can’t be counted on to accomplish the intended purpose. What’s required is a more nuanced approach to using including and includes.” MSCD goes on to recommend how to avoid uncertainty.
Commoditized Contract Language, Please
The above example illustrates perfectly how discussion of “tested” contract language plays out. MSCD considers a bunch of legalese and demonstrates, in detail, why I find those words and phrases wanting, and it recommends what to use instead. Meanwhile, traditionalists invoke the notion of “tested” contract language in defense of legalese generally or in defense of a given word or phrase.
But traditionalists who so invoke “tested” language don’t begin to grapple with nuances. I’m not surprised. Consider what rigorous study of legalese requires: Scholarship. Semantic acuity. Lots of time. And a willingness to rock the boat. That’s why most of us parrot the conventional wisdom.
So what should you do? Let’s start with what you shouldn’t do—your own research. Even if you set aside that the whole notion of doing your own research is now associated with online ranting, it’s simply not a realistic proposition.
In fact, for most of us, even the notion of relying on MSCD isn’t realistic—I suspect that only a small fraction of those currently making decisions regarding contract language have the time, inclination, or capacity to digest what MSCD has to say on something like the implications of including, even if they were aware that MSCD exists.
That’s why it would be best to turn contract language into a commodity, instead of endlessly reinventing a dysfunctional wheel. That would require a comprehensive set of guidelines for clear and concise contract language, otherwise known as MSCD. And it would require a library of highly customizable templates. So far, only Adams Contracts is slowly building such a library.
Once you have access to commoditized contract language, the only question is whether you’re willing to make the leap of faith that’s required to rely on someone else’s contract language. If you have qualms about that, I suggest you get real. When you copy-and-paste, you have only the flimsiest idea whose work you’re relying on, and so you have no basis for relying on it, other than expediency. By contrast, if you rely on Adams Contracts, you can find out what you’re getting.
Say Something Once, Why Say It Again?
So this is my sixth blog post on the notion of “tested” language. I might revisit a topic repeatedly to build on my understanding, but that’s not the case here—I say pretty much the same thing every time.
Why bother? Because if you’re in the business of trying to change how people write, you have to be willing to repeat yourself. Six times over 19 years doesn’t seem excessive, as each new post probably attracts new readers. If after reading this post a handful of readers think, “Hmm, this ‘tested’ contract language stuff sounds like bullshit,” it will have been worthwhile. 🙂
