Have You Heard the One About . . .
. . . about the Mere Mortal and the High-Priced Attorney?
The Mere Mortal hires the High-Priced Attorney to draft a contract. While reviewing the contract, She (the Mere Mortal) sees that He (the High-Priced Attorney) has split a whole bunch of clauses with commas. Without the commas, the clauses are fine; with the commas, the clauses don’t make sense.
She asks Him about the commas, and He talks about provisos and how commas are supposed to appear between provided and that. That’s what He was taught to do, and whoever taught Him that knows far better about such things than some Mere Mortal.
Just imagine paying some High-Priced Attorney $400/hr to draft a contract and then later learning that much of it is simply unenforceable because of bad punctuation!
____________
It happens. Attorneys write something, and no one reviews it. They make mistakes, which go unchallenged.
A good way to avoid the serious damage that errors in punctuation and grammar can do to a firm’s reputation is to have attorneys peer review each others’ work.
Better it is (for all involved) to catch mistakes before they go out the door.
17 August 2007 at 8:29
Mister,
You skewer lawyers for poor writing. Why do you do it? I don’t know, but I sheepishly admit I like it. You go.
Anyway, what an atrocious and embarrassing profession we lawyers have created. We think we are smart; we think we are excellent writers. But we don’t even consult the sources that professional writers ought to consult.
In other words, if this lawyer had consulted any current book on legal drafting, he would see that they ALL say provisos are bad.
Oh well.
17 August 2007 at 9:40
Don’t get me wrong. I don’t think lawyers are poor writers, but some of them certainly are.
Whether very good or not so good, lawyers — like all other writers — need editors. In professional publishing, the very best writers demand the very best editors. Why should law firm publishing not follow suit?
Of course, one argument is that legal writing is so technical that an Englician just can’t touch it. Well . . . consider something far more technical than legal writing — mathematics. Professional publishers of mathematics employ mathematics editors. So . . . that one argument doesn’t hold much water.
If an accomplished lawyer can screw up a contract (in royal fashion) by misplacing commas or using which in place of that, then why not have an editor review that contract?
An ounce of prevention — quite literally — can be worth millions.
17 August 2007 at 15:20
I agree. How?
Yea, nobody takes well to criticism of their writing…
Traditional legal punctuation is nutty…
Now, let’s talk: I was once hired by a law firm to redraft one proviso which had been agreed to but which they were concerned might be binding.
First, they wanted me to confirm their researched conclusion the proviso would not be binding, then they wanted the proviso in such plain language that no one could be confused by it. Transparency?
They wanted it to say, in effect: All parties have accepted (one underlying principle) for the sake of this agreement, but Party A does not admit to the legal existence of (the one underlying principle).
I can’t give you the wording I produced for them, but it cost them $1500.
18 August 2007 at 7:14
Cheryl:
RE: Yea, nobody takes well to criticism of their writing…
A constant theme of this blog is that attorneys are authors and law firms are publishers. Professional publishers rely on editors. The editors aren’t paid to criticize anyone’s work, but to polish it: to make the writers look good.
18 August 2007 at 13:34
Be comforted that Harvard Law School, as far as I know, does not actually teach students how to draft contracts, nor how to file documents with a court, nor anything else practical.
20 August 2007 at 11:33
Simplicity in contract drafting should be a mandatory 1L requirement, even for litigators (who have to draft settlement agreements). Included in the curriculum should be, “The joys and benefits of turning your back on clauses from your firm’s decades-old form file.”
Speaking of comma laden clauses, an unrelated question: where do you stand on commas after the last item in a list but before “and”? (this, this, this, and that — or this, this, this and that). I switched to including a comma before “and” largely because Howard Bashman does it, and I like Howard and imagine he probably put some thought into the choice. But it was not the preferred method among my colleagues.
20 August 2007 at 12:02
The serial comma? It’s essential. Its omission is one of the most common errors made by attorneys (another being the use of which in place of that to introduce a restrictive clause — an error that can entirely change the meaning of a sentence.)
A somewhat controversial book on punctuation makes light of the misuse of commas in its title: Eats, Shoots & Leaves.
Its origin is in this comical story on bad punctuation:
21 August 2007 at 9:01
Byran Garner says that using “provided” is a “sure sign that the drafting is going badly.”