Point: WITNESSETH Our Profession Modernizing Our Drafting Practices
Why Lawyers Need to Stop Writing Like Eighteenth Century Barristers
It’s 2014. You’re in your high-rise office on the twentieth floor with an abundance of modern conveniences at your fingertips. Your iPhone keeps your calendar, accesses your email, offers texting and telephone conversation with virtually anyone in the world, and otherwise performs half the job of a legal secretary fifty years ago. No typewriters or quills are used in this office. So why do attorneys insist on drafting documents like we are in character for a Charles Dickens yarn?
Tradition has its place. We should absolutely respect tradition as a foundation on which we have built our profession, but “tradition is a guide, and not a jailer(2).” Doing something without an articulable reason is unfortunately a notion that tends to haunt the legal profession with particular frequency.
Many of us in drafting a complaint will employ the placeholder paragraph between each stating:
“Plaintiff hereby restates and incorporates paragraphs 1-12 of the Complaint as if fully restated herein.”
Do we really believe that leaving out this nonsensical paragraph will render our pleading insufficient? See, e.g. C.R.C.P. 8(e)(1) (“each averment of a pleading shall be simple, concise, and direct” and “no technical forms of pleading or motions are required”).
Likewise, we often needlessly expand drafting projects by inserting meaningless provisions into agreements, such as:
“Counterparts. This Agreement may be executed simultaneously in any number of counterparts. Each counterpart shall be deemed to be an original and all such counterparts shall constitute one and the same instrument.”
Are we truly worried about litigation involving non-simultaneous acknowledgment of a contract, or are we instead blindly following tradition without thoughtful reasoning? I think it is often the latter, and it would drastically improve our professional image if we adapt to modern business and modern life. These two examples are merely a sampling of the several antiquated drafting practices used by lawyers. If we can root out wasteful and meaningless practices such as these, our profession would regain a deserved recognition of value from the business community and would improve our efficiency at work.
A major complaint that other professionals have about lawyers is that we cannot help but turn a simple transaction into a fourteen-page contract with difficult-to-understand provisions, which can often threaten the deal. It’s typically overkill. While our mission is to zealously advocate for the interests of our clients, it is often contrary to our clients’ interests to insist on needless boilerplate without articulating a legitimate risk that our verbosity purports to tame.
Maybe there are situations where one really needs a provision that the contract can be executed in counterparts, but a lawyer’s preference should be exclusion of boilerplate unless there is a good reason to include it. Often, our view tends to be the opposite. We delete boilerplate only for good cause, while inclusion is our default position. Certainly, detractors from this philosophy will note that lawyers are trained to protect legal interests and that lengthy contracts with potentially overblown boilerplate should be our goal because the litigation issues are never apparent at the drafting phase. However, we are not robots. We have a duty to our clients to use some professional discretion. We must use our extensive training and discretion to tailor each matter to our clients’ needs. If we are just throwing fifteen pages of boilerplate into a contract or pleading, our clients are no better off than if they simply copied a form from the Internet. Our discretion and specific analysis is where our value lies.
May I suggest that the next time you are drafting a pleading or a transactional document you consider whether your document comports with the modern business environment or whether it needlessly compounds the paperwork without good reason.
By Keith Lewis, a Colorado and Georgia licensed attorney with a 100% trial and appellate litigation practice located in Denver.
1 Nolo’s Plain-English Law Dictionary defines witnesseth as “Legal jargon for ‘to take notice of,’ used in phrases such as ‘On this day I do hereby witnesseth the signing of this document.’”
2 W. Somerset Maugham.
Counterpoint: The Importance of Being Prolix
“Prolix” is an adjective defined as:
Using or containing too many words; tediously lengthy, long-winded, verbose, wordy, pleonastic, discursive, rambling, long-drawn-out, overlong, protracted, interminable.
I agree with my Docket colleague Keith Lewis when he rails against lawyerly “verbosity” (although I am definitely going to work “pleonastic” into some conversation, somewhere), but I must take issue with his premise that an attorney’s default position should be to eschew boilerplate language “unless there is a good reason to include it.”
Keith implores us to “stop writing like eighteenth century barristers.” However, I believe strongly in customer service, and I think many of our clients expect and want their attorneys to hold forth in incomprehensible Norman English and ancient Latin. Admit it, who doesn’t thrill to the “Oyez, Oyez, Oyez!” which opens a session of the United States Supreme Court, or the vision of a chief justice’s purple chevrons upon a robe of black satin. I submit that the majesty of the law is not just for those lawyers on the Supreme Court; it is also for those lawyers on Court Place, who toil amidst the earthy fumes of the mall bus wafting through the air intakes.
Keith includes as a footnote within his article’s title (a contrivance, I must point out, never before seen in a Docket headline) the definition of that good old standby, “witnesseth.” It turns out it simply means “observe” or “witness.” But those three extra letters add, to my ear, a certain poetry. A poetry worth maintaining, and certainly worth billing for.
Archaic language is not only poetic, it commands authority. Compare, for example, “thou shalt not steal” to “don’t steal.” Along these lines, it is worth noting that the King James Bible is, after 400 years, still among the most popular versions of the Bible in the U. S., coming in second in sales, despite competition from those drafted in what Keith might call a “modern business environment.” Not apples to apples? The Bible contains hundreds of laws, and many covenants (contracts) between the common people and one pretty important party of the second part.
Perhaps just as crucial, boilerplate language, which has been used for decades or centuries, is tried and true, and has been interpreted by courts until we know exactly what it means. Thus, its use should arguably be the first, not the last, choice of lawyers. By unfortunate example, although we have, over the last hundred years, been the beneficiary of many Colorado appellate decisions which have defined the word “shall” as it appears in statutes, our legislature has recently decided to replace that word with the more folksy “must.” So, we can look forward to another century of litigation mincing the various shades of “must.” Perhaps this “must” is sour grapes, since I am particularly satisfied with the existing meanings of “shall.” This is because our courts have determined that when a statute provides that a citizen “shall” do something, it is mandatory.
However, when describing the duties of a public servant such as myself, “shall” means something like “maybe do it when you get around to it—no pressure.”
I dug around for a definition of “boilerplate,” and although I am not stooping to put it in a footnote, I offer it here from West’s Encyclopedia of American Law:
A description of uniform language used normally in legal documents that has a definite, unvarying meaning in the same context that denotes that the words have not been individually fashioned to address the legal issue presented.
See? What we are going for in legal drafting is “definite, unvarying meaning.” While Keith dismisses boilerplate and declares that “We must use our extensive training and discretion to tailor each matter to our client’s needs,” I argue that doing so will only get us in trouble. Leave discretion to the judges, who cannot be sued for malpractice.
Further affiant sayeth naught.
By Craig Eley, an administrative law judge who enjoys a prolix brief as much as the next jurist. They can be forwarded to email@example.com.