Seminar customers will sometimes ask me, in effect, to focus on the important stuff. I respond that it wouldn’t make sense to have me do that.
Take, for example, my “categories of contract language” analysis. Sure, some of the distinctions are more important than others. A prime example is the distinction between obligations and conditions. But that distinction would be harder to make sense of without the context provided by, for example, discussion of the role of shall.
Furthermore, with other topics the main concern is clarity, but risk can also rear its head. For example, handling defined terms appropriately is mostly a matter of making life easier for the reader and avoiding clutter, but you can also create confusion by, among other things, using includes as the only definitional verb in an autonomous definition or by putting a defined-term parenthetical in the middle of an integrated definition.
Similarly, redundancy is mostly a matter of surplus words, but it can also lead to dispute. Indemnify and hold harmless, anyone?
More generally, unrestrained use of suboptimal usages that aren’t inherently risky can create a fog that allows people to lose sight of the potential for dispute. I suggest that an example of that is the clumsy drafting at the root of the litigation between URI and Cerberus, which I wrote about in this article.
So clarity and risk are so intertwined that it wouldn’t make sense to attempt to address the latter separately from the former.
