Yet More on Rhetorical Emphasis

Today I encountered another form of rhetorical emphasis to add to those noted in MSCD 13.37–38 and in my previous post on the subject.

This is from a software license agreement:

Licensor shall NOT indemnify, defend or hold Licensee harmless from and against any loss, cost, damage, liability, or expense (including reasonable legal fees) suffered or incurred by Licensee in connection with any U.S. patent or any copyright or other intellectual property infringement claim by any third party with respect to the Licensed Products.

Note the “not” in all capitals. I use typography to emphasize article headings, section headings, each defined term when it’s first being defined, party names in the introductory clause, and so on, the aim being to make them catch the eye a bit. (See MSCD 12.7–9.) And in limited contexts it’s appropriate to emphasis a sentence or more. (See MSCD 12.10–15.) But emphasizing one or more select words in a provision (with all capitals, italics, underlining, or otherwise) to indicate that you really, really mean it is something else again—it’s a form of rhetorical emphasis.

I’ve previously suggested that although as a general matter you’re best off dispensing with rhetorical emphasis, one or more parties might feel more secure adding rhetorical emphasis to a particularly sensitive provision. But this form of rhetorical emphasis—selective typographic emphasis of words in a provision—I’d steer clear of entirely. It’s too redolent of legal writing that seeks to persuade.

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.