Here’s a paragraph from the manuscript for MSCD2. It’s so fresh that steam is still rising from the words:
An internal cross-reference that consists of only a number gives the reader no indication of what’s addressed in the specified provision. That’s why in some contracts each cross-reference includes the heading of the article or section in question, as in article 12 (Indemnification). (If the cross-reference is to a subsection or enumerated clause, it’s appropriate to use the heading of the section of which it forms a part.) This usage not only gives the reader a better idea of the significance of the cross-reference, it also makes it more likely that an inaccurate cross-reference would be caught. It should perhaps be used more often than it is, particularly in longer contracts and contracts that businesspeople work with routinely.
Reader Mike Wokasch suggested that I write about this; I hadn’t given it much thought previously. What’s your experience with this usage? Can you suggest any way that I might improve this analysis?
Since it likely will require manual updating, as opposed to the automatic cross-reference updating recommended elsewhere in the book, I’m reluctant to use the format.
However, I’ve broken that rule from time to time, usually in contexts where the x-ref might not be quite so obvious from the context (such as a long list of sections that might survive where I’ve been forced to do that (usually against my will…)).
But, usually one can get a sense of where the cross-reference is going to lead from the context it’s in anyway, so I don’t usually think it’s all that helpful to add the heading compared to the costs of maintaining it.
I’m tempted to put this in the same category as redundant numeral/written numbers; e.g., “thirty (30) days” and the like, largely because of how both devices tend to lead to errors as contracts are negotiated in earnest.
I generally agree with Fleming. 1) This substantially increases the risk of errors that can creep into the contract. 2) It adds more words to the document. Eric.
Michael: I’d only add that the additional updating required would presumably be limited, as headings aren’t often tinkered with. Ken
An external law firm that I use has adopted this practice in its contract drafting and I do not find it particularly helpful.
In addition to the reasons suggested by Michael and Eric (with which I agree), I would add two more.
First, where the cross-reference is to a subsection that addresses a specific issue, providing the section heading (which is likely to be general in nature) may not provide the reader with any clarity as to the significance of the cross-reference.
Second, depending on the style used to identify definitions within the body of the text, the section heading reference could be confused with a definition (at least at first glance). This could be addressed by using distinct styles for the two forms of reference but my preferred style for definitions within the body of the text (bold, no italic, no quotation marks) does not easily accommodate this.
While there may be circumstances in which this practice will be helpful, my preference is for its use to be limited to those few circumstances.
I don’t typically use this format because I agree it’s redundant, and it also has the problem of looking a lot like defined terms.
I used it at the behest of the other side for a particularly long contract. I don’t remember there being a significant number of cross-references, so I don’t think that (given its already massive length) that adding the heading made the agreement appreciably longer.
Admittedly, for this contract, using this formal did have several benefits:
1. It added to the readability (particularly in lists of sections) since there were too many sections to keep track of without constantly flipping pages — something that I feel is unlike the “thirty (30) days” usage.
2. It made verifying that the cross-references were correct trivial — I could have my secretary mechanically verify consistency (something you can’t do with just section numbers) before I did my own double-checking, and in this sense it’s prone to fewer errors; not more.
3. Made negotiating the substantive terms easier when exchanging documents — i.e. you don’t have to spend time looking up what Section 232 is/was if the other side inserts or deletes it.
For the purpose of dealing with the contract later, I would imagine that someone picking up the contract for the first time would have a much easier time figuring out what the agreement says, and, if there’s a dispute, what the parties intended.
1. Textual cross-refs can be automatically updated, at least in Word: You can simply insert two cross-ref codes, one that points to the paragraph number, the other that points to the heading text. I’ve done that quite a few times.
2. I like textual cross-refs for litigation support, as insurance for when errors DO occur in numeric cross-refs. It can be awkward to try to argue that the (nonsensical) cross-reference to “Section 5.3” was a typo, and that what was really meant was to refer to “Indemnification.” If you include the parenthetical as Ken describes, you largely defuse the issue.
I’m involved in the drafting process for an aboriginal self-government agreement that is some 150 pages and has been in the works for several years.
We’ve taken great pains to adopt a plain language approach as the readers/users will not be lawyers.
We’ve adopted this practice as one of our fundamental drafting rules. Now I’m using it wherever I can in my own drafting. I think it’s extremely helpful to the reader.
It’s not onerous to maintain as Word allows for automatic updating of the cross-referencing.
I love it when it’s there and when I’m feeling particularly ambitious I do put the names of the sections in. Then reality and deadlines set in and it’s one of the first things to go. I make a concerted effort to use the Word cross-reference feature instead of typing in sections, though. That’s just a recipe for disaster.
Yesterday, I spent a huge chunk of time correcting numerical x-references in an agreement after it came back from the other party. I could tell from the track changes that the administrative middle-person had attempted to roll the numerical x-references to bring them up to date, but (without a contextual understanding of the provisions and without working carefully from a previous version) he/she ended up just guessing. Argh.
I consider twin x-references (numerical and section headings) as “best practice” drafting, but I did not go there in this particular document because of the number of files on my desk and the (resulting) choice to conduct my initial review of the contract from a less-is-sometimes-more stance.
My method is to use Microsoft WORD software to automate three leads for each cross-reference: part, paragraph, or subparagraph number (and I think about whether my client could benefit from a more specific or more general reference); topic heading; and page.
A client is glad that I’ve made its reviews easier. An opposing negotiator sees that we’re negotiating in good faith by not burying or making it difficult to read any moving parts.
One must plan the layout of a document to set the kinds of headings and captions that a cross-reference would point to.
Along with the automating reasons mentioned by others, Microsoft WORD software gives you a warning if a cross-reference points to a heading or caption that later was deleted. After running other quality checks, I simply search for the word “error”.
I have observed from time to time that many of your suggestions can be applied to the related field of drafting legislation.
This is one where it hits home. Statutes frequently cross-reference to other statutes, invariably without any clue to why the cross-reference is there. This idea would help to remedy that problem.
I agree that one can automate the textual cross-references just like the numerical ones by use of a bookmark X-ref — BUT, there’s nothing in that system to prevent the two fields from becoming disconnected, since they don’t actually check with each other to be sure they’re both pointing to the same place. So, if the two fields somehow got separated by accident (such as by sloppily inserting a new x-ref in the middle of a new list of x-refs, which can easily happen when there’s a scribe who doesn’t understand x-refs), the automation of the two disconnected fields can make it even worse than it would have been without the automation. If Word comes up with a way to automate AND ensure that the two fields continue to check with each other and remain coordinated, then I’d be willing to take that path.
Might I also point out that another solution to this is to try to write in a manner that requires as few cross-references as possible! Even with the headings attached they are still jarring, so one should only resort to them when one has to.
Depending on the length of the contract, number of cross-references, length and number of the sections, subsections, etc., I have started referencing internal sections by name only – to avoid confusion if section numbers change but do not get updated automatically or manually. For example, I reference “the section of this Agreement titled Compensation.” This format can get cumbersome depending on the sections, subsections, etc. needing cross-referenced. For example, I recently found myself debating the best way to reference a subsection titled “Products and Services Subject to Compensation” within a section titled “Compensation.” If I abandon this format for one cross-reference in the Agreement though, I will abandon the format for all cross references in the Agreement. Then, I will include at least the subsection title in parentheses behind the section and subsection numbers (e.g., Section 7.a. (Products and Services Subject to Compensation).