I’d made many new professional friends through A Manual of Style for Contract Drafting, but never new family members. So recently I was delighted to receive an email from a reader who announced that not only did he “hugely appreciate” the book, he was also related to me—he was my second cousin once removed. More specifically, my reader’s great-grandfather was Samuel Gordon, brother to my mother’s mother, Mary Schneider, née Gordon.
This came as news to me. Why did it take so long for us to figure out the connection? Probably because my parents moved overseas shortly after the Second World War and returned only for occasional visits.
My new relative is none other than Joshua Stein, a lawyer who’s a notable figure in the world of commercial real estate. After twenty years as a partner at Latham & Watkins, in 2010 he formed his own firm, which he keeps lean and nimble. Go here for his firm’s website; go here for an article about Joshua.
What makes this connection particularly fun is that Joshua has written extensively about real estate, including contracts. So it would seem that the Gordon family genetic makeup contained a gene for particularly pointy-headed scholarship! (But as regards my own efforts, I wouldn’t want to underestimate the contribution from the Adams side of the family. After all, while dean of the School of Oriental Studies of the American University in Cairo, my father’s father wrote Islam and Modernism in Egypt, a forbidding tome that still features in bibliographies on the subject.)
One of Joshua’s books is A Practical Guide to Real Estate Practice (2001). It contains plenty of stuff of interest, but I noted in particular the chapter on defined terms. In it, Joshua makes some general points that apply to using defined terms in any kind of business contract. Since it’s useful to see different takes on an issue, I’ve copied below some extracts.
When you write a legal document, it must do many things, all at once. First and above all, your document needs to communicate intentions and meanings accurately and effectively through words. At the same time, though, your document should not be too much longer or more complex than necessary.
It should be internally consistent. When the same concept arises more than once, you should say it in the same way every time. Otherwise, someone will argue that a variation in words implies some variation in meaning. …
Any legal document must speak unambiguously, both today and five years from now, to the attorney, opposing counsel, both attorneys’ clients, whoever might later acquire either client’s position, some other future reader of the document, and a judge who might need to interpret the document when the parties are no longer friends.
If you want to prepare documents that achieve these and other important goals, [you] will find yourself at least halfway there if you consistently use one simple tool: define terms.
In theory, if you were to set up the right defined terms, your document could consist of 75 pages of definitions, followed by one operative paragraph (and some signature blocks) ….
You shouldn’t really do this—it is a parody!—but it gives you an idea of how far you could take the use of defined terms.
Later, when you revise the document, and find that you need to make one particular change in eight places (a “conforming change”), you will usually save time, both immediately and in the long run, if you establish just the right defined term—once—and then use it repeatedly.
[T]he drafter of a legal document needs to make sure that as he or she develops and modifies a defined term, that term continues to mean what everyone will intuitively expect it to mean.
For example it is dangerous to define the “Loan Documents” to mean all the loan documents except the unsecured loan documents such as guaranties.
Defined terms also allow you to avoid perpetrating internal section cross-references within a document. By using defined terms, you can refer to concepts by name rather than by section number. If you define the “Normal Cash Flow Waterfall” and the “Post-Default Cash Flow Waterfall,” a reader is much more likely to remember what you are talking about than if you refer repeatedly to section 8.12 or section 8.13 of your document.
If multiple defined terms refer to related concepts, the defined terms should interact in a way that tracks the interactions of the underlying concepts. For example, if a transaction involves two promissory notes, you invite confusion if you call one “the Note” and the other “Note B” or the “Supplementary Note.” …
The drafter can, instead, prevent confusion by setting up parallel definitions of “Note A” and “Note B” (or the “First Priority Note” and the “Second Priority Note”), and a defined term—”the Notes”—to refer to both of them.
2 thoughts on “Joshua Stein on Defined Terms”
Thanks for another great post.
On the topic of definitions, I’d be interested in your thoughts on the order in which defined terms should appear in a (relatively short) contract.
The standard way is to list them in alphabetical order. However, when drafting, I often find that it makes the use of definitions more intuitive if they are listed in the order they are used. That’s certainly the way I draft them. Accordingly, for example: to define the ‘Drawer’ as ‘the top drawer of the Table’ makes no sense if you don’t know what the Table means and have to turn (perhaps) to the next page to find out. In contrast, if Table had been defined first, the definition of the Drawer would have made immediate sense.
I suppose in many ways it depends whether you begin reading the document with the definitions, or start at the first substantive term and then just refer back to the definitions as and when required. My brain doesn’t work in the latter way!
Personally, I tend to mix and match approaches depending upon the nature of the arrangement, the complexity of the document – and hence the number of definitions – and the reader. I find that only lawyers tend to be phased by the non-alphabetical approach.
Margaret: I’m afraid that this is too involved a topic to address in a comment to a blog post. An good part of a chapter in MSCD is devoted to how to create defined terms.
But I will note that I recommend listing in alphabetical order the definitions in a definition section. And I think that it’s a bad idea to read a contract by starting with the definition section.
There’s also the issue of whether to define a given term in the definition section or “on site” and, if you define it on site, whether to use an integrated definition or an autonomous definition.