You Might Want to Make Your Section Headings Non-Random

Thanks to Eric Goldman (@ericgoldman) I learned about a recent opinion out of the U.S. District Court for the Eastern District of Virginia. (PDF copy here.) It relates to a dispute between Corbin Bernsen, actor, and Innovative Legal Marketing. Bernsen acted as spokesperson for an ILM campaign, but it all ended in tears.

What caught Eric’s eye, and mine, was the following provision:

VI. INDEMNIFICATION. Network will name Talent on its general liability insurance policy. Talent agrees to not commit any act or do anything which may tend to bring Talent into public disrepute, contempt, scandal or ridicule or which might tend to reflect unfavorably on the Network, their clients or on the Talent.

Ah, indemnification! So what does it say! Hold on, it doesn’t say anything about … indemnification. Instead, it deals with insurance and contains a “morals clause.”

Based on the random section heading, Bernsen argued that the morals clause was in fact an “unambiguous indemnification provision that applies [only] if a claim is made against ILM based on Bernsen’s conduct.” That obviously stood no chance. But if you decide to use random headings, don’t be surprised if interplay between the heading and what follows results in the section being interpreted in unexpected ways.

While you’re at it, admire the Roman numerals used for the section heading. That’s never a promising sign.

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.