Last week I tweeted this image:
In the tweet, I said this:
There’s a disconnect in meaning between the definition (green) and the defined term (red). The way to fix it is by “clarifying the scope” of the definition: adding a phrase-plus-comma at the beginning of the defined-term parenthetical. Any suggestions?
In a reply, I offered this fix, while acknowledging that it would probably be best to start over: (any such signed document, a “Change Order”).
My original tweet prompted this response from @PlaybookLegal (a troll), in this tweet:
This kind of question is so academic…I want to say, this simply does not matter…as lawyers, we should try to avoid spending time on getting 100% perfect linguistical drafting and focus on issues that actually matter. Is this ever going to get litigated? Is there confusion?
In this post, I’ll try to explain myself. Let’s start with what the manuscript of the fifth edition of A Manual of Style for Contract Drafting says about clarifying the scope:
So I’m not suggesting you have to clarify the scope. You do it only if it would make the reader’s life easier. Consider this example:
The defined-term parenthetical (at the end of the sentence) is sufficiently far from the key noun, contractor, that I think the reader would benefit from being reminded how far back up the sentence the definition begins. But clarifying the scope would be more important if the defined term didn’t include the word contractor. Ultimately, it’s a judgment call. I’m inclined to err on the side of clarifying the scope, but at the cost of only a few words in exchange for greater clarity.
Is there confusion? In this case, no. But figuring out how to say in a contract whatever you want to say isn’t just about avoiding fights. It’s also about making it easy for the reader to understand what you’re saying. If you focus only on avoiding confusion, that’s a low bar.
Here’s another example:
I’d be inclined to clarify the scope by adding at the beginning of the Services defined-term parenthetical the services specified in an SoW, plus a comma. That would make it clear that the services aren’t simply services aimed at designed widgets, or whatever. Instead, they’re the services described in a statement of work.
If you don’t clarify the scope in that example, might the parties get into a fight over what Services means? Well, I’ve seen weirder fights.
Random comments:
1/ What happened to Disqus? Must a commenter now sign in anew every time?
2/ I’ve observed a category of what I call ‘back-in’ terms, like ‘error avoidance’ for ‘getting it right the first time’. ‘Confusion avoidance’ seems to be a back-in term for ‘being clear’.
3/ Far from being a low bar, avoiding all confusion means being perfectly clear. Isn’t that the drafter’s Holy Grail?
4/ The answer to the troll is that the same drafting virtues apply to all parts of the contract. The idea that less important aspects of the contract require only suboptimal drafting techniques is, um, debatable.
5/ I don’t like the adjective in ‘Separate Contractor’, because what other kind is there? Perhaps ‘Contractor’ would do.
6/ A quick overall edit of the first example yields this:
The Owner may perform activities related to a Project with the Owner’s own personnel or with one or more Contractors. A ‘Contractor’ is a person the Owner retains directly under contracts with terms, including insurance and waiver of subrogation terms, substantially similar to terms of the Contract Documents relating to arrangements with Subcontractors.
7/ Ditto for the second example:
The Provider shall perform the Services and shall do so in accordance with (a) this agreement and (b) each SoW. The ‘Sevices’ are the services stated in each SoW. An ‘SoW’ is a written statement of work in the form of attachment A that references this agreement and is signed by each party. A term of this agreement will prevail over any inconsistent term in any SoW.
8/ In theory, not defining a term until after its first use may seem perverse, but in practice, creating the itch (‘What does this term mean?’) and immediately scratching it (‘Ah! Here’s the definition!’) is reader-friendly.
Hi. Thank you for this; I’ll take a closer look soon. Regarding Disqus, you now have to pay to avoid crass advertising, and it slows down the site, so I elected to do without.
Ken,
I am a 24-year litigation paralegal with an strong interest in language, usage, punctuation, and grammar.
Before I read your comments after your word “disconnect” in your tweet, I myself deconstructed your example (2 sentences with a 3rd unfinished). My understanding and paraphrasing of Sentence 2 is:
1. Any changes that are accepted will be put in writing and signed off on by the Project Managers.
2. Such accepted changes, made in writing, and signed by the PMs, will be called “Change Orders”.
If my understanding is the same as the drafter’s, it is because I used common sense and gave it a good-faith reading. I do not disagree that the original text is susceptible to confusion or purposeful litigation. I think my own statement #2 above, with the commas, makes the defined term clearer.
The confusion in defined terms may be traced back to writing by attorneys that does not hew to grade-school writing rules. One analog comes to mind: pronouns. As I learned it, a pronoun refers to the immediately preceding noun. Thus, in the tweet example, in order to avoid confusion, the definition of the term “Change Order” must make it clear to which object (noun) the defined term is referring, to wit: the proposed change as now accepted, and now, both, made in writing as well as bearing the respective PM’s signature(s). A non-written document or a document that does not contain the appropriate signature(s) cannot be deemed a Change Order.
I thank you for your posts and wisdom.