September, 2014
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The Fine Print: Musings of

an Information Technology Lawyer




  Chadwick C. Busk
Chad's Background: 
 For 34 years, as in-house counsel, I handled the legal aspects of all IT deals for a major West Michigan retailer.

I write contracts in Plain English, i.e., with no legal jargon.
I'm a 1974 Hope College graduate (magna cum laude) and a 1977 graduate of Notre Dame Law School.
I retired from my in-house position in June, 2014, to focus on advising/documenting IT deals.
I also have expertise advising/documenting other commercial deals.  

Why Do Lawyers Use "Shall" to Denote a Mandatory Contractual Obligation?
  • They use "shall" in everyday conversation, e.g., "I shall watch football this Saturday."
  • "Shall" is a term of art and has special legal significance.
  • A possible substitute - "will" - is ambiguous. 
  • Another possible substitute - "must" is ambiguous. 
  • "Shall" is in the Bible, so the word must be endorsed by God. 
  • None of the above. 
None of the above.......................................!

There is no valid reason to use "shall" instead of "will" or "must."  According to Bryan Garner, the Editor of Black's Law Dictionary since 1994, "shall" is a "hopeless ambiguity...misused by lawyers." 

“The difference between the right word and the almost right word is the difference between lightning and a lightning bug.”

― Mark TwainThe Wit and Wisdom of Mark Twain

Why Plain English? (Or: "Don't You Want to Sound Like a Lawyer?")
Short Answer: Legal jargon - especially in contracts - is confusing, antiquated, and ambiguous.
  • Clients (who pay their lawyers to draft contracts) don't understand it.
  • Judges (who must interpret legal jargon) hate it.
  • Other lawyers (who negotiate contracts written in legal jargon) have to charge their clients hefty fees to wade through it. 

How I Saw the Light:
Professor Joseph Kimble of Cooley Law School in his book, Writing for Dollars, Writing to Please – The Case for Plain Language in Business, Government, and Law (Carolina Academic Press, 2012) at page 17, states that guidelines for writing in plain language aren't offered for some rarefied aesthetic purpose. They are ways to reach the ultimate goal of clarity – of readers’ being able to find, understand, and use. 
For a good part of my career as in-house counsel, I wasn't bothered by legal jargon. But I started reading Professor Kimble's Plain English columns in the Michigan Bar Journal. Then, I picked up Ken Adams' book, A Manual of Style for Contract Drafting. The frosting on the cake was when Professor Kimble spoke to our legal department about the virtues of Plain English. So, now I'm a Plain English convert and advocate! 

But how is Plain English different from traditional legal jargon? Here are a few examples from a pretend contract for the sale of a Mini-Cooper automobile. Abel is the seller; Baker is the buyer. 

1. Legal Jargon:
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and pursuant to the mutual covenants contained herein, Abel shall sell his 2013 Mini-Cooper to Baker for $30,000 on the date set forth in Exhibit A attached hereto and incorporated by reference herein.

In Plain English:
Abel will sell his 2013 Mini-Cooper to Baker for $30,000 on the date stated in Exhibit A.

2.  Legal Jargon:
In the event of any liquid precipitation on the payment due date, with respect to said purchase of Abel’s 2013 Mini-Cooper by Baker for $30,000, the payment shall be deferred until the first day thereafter when there is no such liquid precipitation; provided, however, Abel may waive this prohibition upon notice to Baker, in which event the payment shall be made as aforesaid.

In Plain English:
If it is raining on the payment due date, the payment will be delayed until the first day when it is not raining. But Abel may waive this prohibition by notifying Baker. Then the payment will be made on the specified payment due date, despite the rain.

So Why Do Lawyers Persist in Writing Contracts in Legal Jargon?
Lawyers tend to use the same contractual forms over and over without bothering to read each word and consider whether it is appropriate for the 21st century. Some of these forms go back a long time, and if they were good enough for the senior partner, then they are good enough for the young lawyer who wants to become the senior partner. But this doesn't justify hanging on to legal jargon that is ambiguous, tedious, and incomprehensible.  

Note: I wanted to kick things off with why I use Plain English in drafting contracts. The October issue of this newsletter will address the importance of having a well-written Statement of Work to supplement an information technology agreement. 

Please visit my website for more articles and more about my areas of expertise. 

Let me know if there are any legal topics related to commercial or IT contracts that you would like me to discuss in future newsletters. 


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Copyright © 2014 BUSKLAW PLC. All rights reserved.

Nothing in this newsletter can be construed to be legal advice or create an attorney-client relationship with the reader. If you would like to find out more about me or my services, please email me or call me at 616-951-3947. 

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