Revisiting “Midnight”

Today I saw the following @matt_levine tweet:

The number of retweets confirms that there’s train-wreck fascination in convoluted lawyer prose.

Midnight is the boundary between the last second of one day and the first second of the next day, so every day has a midnight at each end. There’s a loose convention that midnight on April 8, 2015, will occur at the end of that day, but when the deal goes bad and everyone calls their lawyers, you could get a fight over the meaning of midnight. That’s why it’s best to eliminate that ambiguity.

The parenthetical in the language quoted in the tweet does address the ambiguity inherent in the word midnight by making it clear that the midnight in question falls at the beginning of April 8, 2015. But it does so in a way that MSCD 10.23 describes as “overly subtle”—by specifying that the midnight in question occurs “one minute after 11:59 P.M.” Furthermore, because it also refers simply to “midnight,” the quoted language says the same thing twice. That’s never a good idea.

That’s why I would have said simply midnight at the end of April 7, 2015. (Or midnight at the beginning of April 8, 2015, if you prefer.)

As noted by someone who joined the conversation on Twitter, stating midnight using the 24-hour system (0000) would allow you to avoid ambiguity. But because the 24-hour system isn’t generally used in U.S. contracts, I wouldn’t use it in U.S. contracts.

It would be pointless to state the time as 0001, as suggested by others on Twitter—as 0000 isn’t ambiguous, adding the extra minute accomplishes nothing.

You could instead use 12:01 a.m. to mark a beginning point in time and 11:59 p.m. to mark an ending point in time, but lopping off the first or last minute is too clumsy for me. Neverthless, this approach is routinely used in, for example, contests run by National Public Radio.

Equally pointless and perhaps a little delusional is using 12:00:01 or 11:59:59.

Regarding the related delusion that a day begins at 12:01 a.m., or that one has until 5:01 p.m. to meet a 5:00 p.m. deadline, see this post. In that case, the notion is that a period of time begins or ends one minute later than it actually does. By contrast, this post deals in part with the less problematic notion of shifting a point in time from midnight so as to avoid ambiguity.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.