While poking through the wreckage of Bryan Garner’s new book on contract drafting (see my review here), I found only one idea worth considering further, namely his recommendation regarding use of the section mark (§). Here’s what he says:
We’re after efficient communication and error prevention. Thirty-three percent is slower, more cumbersome, and more prone to error than 33%. And § 6.4(a) is quicker and more reliable than subdivision (a) of section 6.4.
Although some argue that “§” is alien to the general public and therefore confusing, the general public is likewise probably unfamiliar with the pilcrow—the backward P with two downstrokes to mark a paragraph: ¶. Even so, people generally have no difficulty with the pilcrow and focus instead on the number that follows it. They see that they’re reading something with numbered paragraphs—a different kind of writing from what they’re accustomed to.
The same goes for the “§.” It’s one character, not four (sec.) or seven (section). The cumulative benefit in streamlining is tremendous—and readers no longer have to focus on a full two words, “section 474,” when the attention should be on a single unit: § 474.
Further, it takes only a few seconds to become accustomed to this abbreviated form. It doesn’t tax readers unduly. In fact, it does the opposite: it spares them the trouble of reading empty words.
Using the section mark instead of section is an idea worth considering. After all, contracts routinely use the percent sign, so why not use the section mark?
But I’m not inclined to make this switch. For one thing, I think Garner overstates the extent to which it would benefit readers.
But my main reservation is that use of the section mark in the main text isn’t standard. For example, The Chicago Manual of Style refers to use of the section mark only in the context of notes. And for what it’s worth, the Bluebook rule 6.2(c) says “spell out the words ‘section’ and ‘paragraph’ in the text (whether main text or footnote text) of law review pieces and other documents, except when referring to a provision in the U.S. Code (see rule 12.10) or a federal regulation (see rule 14.2).”
Would people become accustomed to using the section mark in contracts? Some of them, sure. But if you’re in the business of selling change, you have to pick your battles. I wouldn’t put promoting use of the section mark anywhere near the top of my effecting-change wish list.
Our fleeting sense of niftyness should not impose cryptic symbols, in addition to Latin, Law French, abbreviations, and Blue Book citation, on readers. The profession exists for the laity. We’re heading in the wrong direction here.
Even among lawyers: Why? Nearly everyone can read and type the word “section”. I can type “§” from muscle memory on Mac, Windows, Linux, and iOS. But I’m a freak. Other people can’t do that, because there’s no button for “§”.
Why erect yet another speed bump on the road to legal writing? Because it feels cool. I remember learning how to write “§” by hand as two “S” characters in law school. “Now,” I thought, “I am learning real lawyer stuff!” Such is 1L.
As for efficiency, we have never paid less for written characters. Yes, many courts still print reams a day. But I read we have Supreme Court justices working off of tablets. Big Law clients balk at printing charges. We all have screens now. That’s what’s here, and only more of it is coming.
I fear the cumulative benefit here is to lawyers who like to tell other lawyers how to write. We tax lay readers too much already. If we’re worried about wasting time on empty words, “section” is a whipping boy, not the problem.
Preach, brother!
First, I would never write “subdivision (a) of section 6.4” – I would write “Section 6.4(a)”.
Second, as Kyle points out, there’s no key on my keyboard for the section symbol. Maybe there’s a shortcut, but I really have no inclination to research it. In Word, I would have to go to Insert, then Advanced Symbol, and then look for the section symbol, click on it, then hit the insert button. It takes me 2 seconds to type out the word, and everyone knows exactly what it means.
Although Kyle Mitchell’s proclamation made me want to cheer, and although I use ‘section’ and not ‘§’ in my contracts (I use ‘§’ in court filings), I am tempted to slip in a definition (‘The symbol ‘§’ means ‘section’ and ‘§§’ means ‘sections’) at first use in a contract and then use the symbol throughout for sheer concision.
(The argument that written characters have never been cheaper proves too much, killing the case for concision generally.)
But in the end, I realize that the contract doesn’t use the ‘§’ symbol or the word ‘section’ at the start of each section (as statutes often do), so we’re talking about self-references (‘this section 2’) or cross-references (‘penalties under section 2 of this agreement’), and using the symbol for only those occurrences would be odd. Not flamingly legalistic, just odd.
The massage this subject is getting makes me wonder whether a definition or interpretive rule might plug a hole: ‘In this agreement, the enumerated parts and subparts are referred to as “sections”‘.
That needs work, I guess, because it fails to take into account articles and enumerated lists. But it points up that contracts usually assume that the reader will know what a ‘section’ is and will not wonder about clauses and paragraphs and subsections.
Maybe on the principles in Kyle’s manifesto, drafters should give readers one skosh more guidance and say what a ‘section’ is.