Growing up, I was told that lawyers were smart cookies. After all, getting a law degree isn't an easy task. You first go to college and find a subject that is best suited to how your brain works so that you can maintain a high GPA. In my case, I quickly discovered that I wasn't a good fit for the "hard sciences." So I took a lot of Political Science and English courses, learned how to write fairly well, suffered through the tedious law school aptitude test on October 20, 1973, graduated with a B.A. degree in 1974 and then went on to law school. There, I endured a legal education infused with the Socratic method (here's an example), suffered occasional migraines (because some of my law professors were truly smart but couldn't teach) and graduated with my law degree on Mother's Day, 1977. Passed the Michigan bar exam and by God, became an honest-to-goodness lawyer in November of 1977!
So having gone through undergraduate studies, law school, and the bar exam, lawyers can't stomach the idea that their legal prose is anything less than Hemingwayesque.
Here's the truth: lawyers write contracts most of the time with little attention to what their words actually mean. Their brains are on automatic pilot, using forms written by older lawyers with their brains on automatic pilot. Here are just some of the goofy words that commonly issue from lawyers' keyboards to befuddle their readers (unless the readers are other lawyers with THEIR brains on automatic pilot):
- Herein, wherein, and provided words. These words are vague and often confusing. Consider this sentence, Except as provided herein, Able shall pay Baker $10,000 for his vintage Star Wars toy Death Star. But what does herein refer to? A contrary or conditional statement in the same paragraph, in the next paragraph, in the preceding paragraph, or somewhere else in the contract? Wherein suffers the same fate, and provided is used to express a condition or qualifying statement when a simple but will suffice.
- The following is a common closing sentence to a contract: IN WITNESS WHEREOF, the parties have executed this Agreement on May 15, 2018. There are multiple problems with this sentence. First, the phrase IN WITNESS WHEREOF is archaic, means nothing, and can safely be deleted. Second, the verb execute is misleading. The common meaning of execute is to do or perform something. So can we replace execute with performing as in The parties are performing this agreement on May 15, 2018? No, because the contract signing date usually precedes its performance! So "execute" is a poor verb in this sentence. Finally, there's no reason to capitalize Agreement. The common sense approach is that the signed document is the parties' agreement. So, let this closing statement simply say, The parties are signing this agreement on May 15, 2018.
- Consider lawyers' fixation on such as in these sentences: Able shall pay Baker $10,000 for his vintage Star Wars toy Death Star. Such Death Star is in its original packaging. When used in this example, such is a needless pointing word. Consider deleting such and saying: Able shall pay Baker $10,000 for his vintage Star Wars toy Death Star in its original packaging.
- Using and/or. The use of and/or has created countless ambiguities in legal documents. Consider this sentence: Able shall sell to Baker 25 bushels of the following Michigan-grown produce: apples, peaches, cherries, and/or celery. Is the intent for Able to sell apples, peaches, and cherries or celery to Baker, or must Able sell all of these listed items to Baker as the and word suggests?
- Using shall instead of will to denote a contract party's obligation. Plain-English legal scholars have long argued about what verb is the best, as in Able shall sell widgets to Baker or Able will sell widgets to Baker. I recently wrote a Michigan Bar Journal article that summarizes the arguments on both sides and suggests a common-sense solution.
Carl Sandburg wrote a little poem about lawyers (The Lawyers Know Too Much, 1920) that includes this stanza:
In the heels of the higgling lawyers, Bob,
Too many slippery ifs and buts and howevers,
Too much hereinbefore provided whereas,
Too many doors to go in and out of.
Let me find those dead-end contractual "doors" for you - and see if we can close them!