Karin Ciano, The Daily Record Newswire
It’s dark. Tree shadows play on the walls as a lawyer, returning late to the office to pick up a brief, feels for the light switch. She hears a sound, whirls around, sees the brief on her desk, grabs it, and the camera closes in on the first page just below the caption:
Plaintiff, Umbrella Corporation (“Umbrella” or “Umbrella Corp.” or “Plaintiff” or “Movant”) hereby requests and moves the Court to grant Plaintiff’s Motion for Summary Judgment in favor of Umbrella Corp. and against Defendant Weyland-Yutani Corporation (“Weyland-Yutani” or “Weyland-Yutani Corp.” or “Defendant” or “Non-Movant”) for the following six hundred sixty six (666) reasons as set forth herein.
Aaaahhhh!!! Cue the strings as she races off down the hall, papers flying.
Yes, that’s a terrifying opening, and 30 more pages of the same are not for the faint of heart. But courage, dear reader: let’s wrestle that hideous sentence onto a laboratory table and give it a good look. Yes, yes — just as I suspected. This sentence reflects a disturbing trend in legal writing … an absence of thought, of feeling … as if something has sucked the life out of it and left behind writing that looks like … like …
Like a contract. Notice how the hallmarks of creeping contract-itis have transformed this once-living brief. We have the defined terms (four names for each party), the Full Titles of Pleadings, the repetition, the legalese (“herein”) and of course, the serial enumeration.
What (other than a brief and a contract crawling into the genetic recombinator from the movie “The Fly”) could have caused this horrible mutation?
My theory: timid compromise. More specifically, the writer’s mistaken belief that a brief can be made clearer by sprinkling in a few tricks from contract drafting. We legal writers share a common language (English) and goal (clarity, I hope), but at the risk of scaring you all, I will suggest the same rules do not always apply to every document. What serves clarity in one context may undermine it in another.
Brief writers are like the people in a roadside diner giving you directions to the nearest service station on the back of a napkin. “Straight on into town and turn where you see everyone else turning. Watch out for the slippery slope!” Clarity equals short, vivid, and memorable — an ephemeral message for one decision maker to understand after one front-to-back reading. The goal of clarity is to differentiate your argument from a pile of similar arguments, to be remembered, and to bring the decision into sharp focus.
Compared to this, contract drafters are monks illuminating a manuscript. They must fit words precisely into a reticulated web of definitions and references. A contract is a monument for the ages, to be navigated and interpreted by readers friendly and hostile; it may become the kernel of future deals between the parties, or even a template for unrelated deals. It does not persuade, it commands. Here, the goal of clarity is served by hierarchy, consistency, repetition and precision — words must mean exactly the same thing to all readers for all time.
Mistakes also matter differently in contracts and briefs. A misplaced comma in a brief is annoying; in a contract it can be catastrophic. Briefs can rely on ordinary rules of grammar and usage, while contracts, to acknowledge the limits of drafting, demand canons of construction that defy those rules (singular includes plural, “and” means “or,” masculine equals feminine, black is white, night is day. OK, I made up those last two).
There are, to be sure, things we can agree on. The rules of grammar apply equally to persuasive writing and contract drafting. Words that serve no purpose should be omitted. Shorter is generally better. But when we step into the land of judgment calls, contract drafters will prefer more words, repetition, and defined terms, while brief writers will prefer fewer words, elegant variation, and context. Everyone agrees good writing and clear headings help the reader navigate, but brief writers focus on how a paragraph sounds in the ear (using roadmaps and transition sentences), while contract drafters address how it looks on the page (using white space and strict numerical hierarchy).
So instead of trying to pretend briefs can be improved by adding contract-style bells and whistles (“ABC” or “ABC Corp”), why don’t we just get comfortable with the idea that contracts and briefs serve different purposes, and speak different legal idioms?
Linguistics has an expression for this; it’s called code-switching. Rather than blend two languages or idioms, a fluent speaker can switch from one to another depending on her audience. Most of us do this already in switching between formal and informal speech, or writing and speaking; think about the difference between “Thank you Your Honor” and “Holler at ya later.”
When you’re writing a contract, by all means use defined terms, titles and proper names; better ungainly than unclear. But when you’re writing a brief, which is supposed to be a focused, persuasive, and memorable document, trust the reader to grasp the basics from context:
Plaintiff Umbrella Corporation is entitled to summary judgment against Defendant Weyland-Yutani Corporation for the reasons set forth below.
Seriously, try it. And every time you refer to a party that’s already been introduced, just use their designation or name — no parentheses, no quotation marks, nothing. (The exception, of course, is if you have parties with similar names, in which case the reader will actually need the parenthetical explanations.)
Lest it seem I’m being unfairly critical of contract drafters, I’ll show my appreciation for their skill by closing with the only thing more terrifying than a brief with contract-it is — its opposite:
After months of negotiation today we agreed that I’ll sell my business to you. I’ve told you the business is in good shape. You’ll look over my records and verify this by the first of June. If everything meets with your approval, you’ll pay me $1 million at closing.
NOOOOOOOOOOOOOOOO!!! Be afraid… be very afraid.
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Karin Ciano is owner of Karin Ciano Law PLLC and director of Twin Cities Custom Counsel PLLC. Contact her at karincianolaw.com.
