I got caught.
In a column last week, I criticized a brief for using the alphabetical short form “EUSLA” to signify “end user software license agreement.” Depending on the circumstances, I suggested, one might shorten the name of that contract to “agreement,” “license agreement,” or “software license agreement,” but “EUSLA” just doesn’t work — it’s meaningless alphabet soup that doesn’t help the reader of a brief.
As I said, I got caught: The lawyer who had drafted the brief read my column, cleverly figured out who I was criticizing, and called to take issue with me. (Serves me right for using real-world examples in this forum, I suppose.)
“You’re wrong, Mark,” my outside counsel said. “We called that contract an ‘EUSLA’ in all of the depositions in the case. When we quoted deposition transcripts in the summary judgment brief, those quotations called the contract an ‘EUSLA.’ We would have confused things if we called the contract an ‘EUSLA’ in the deposition excerpts and a ‘software license agreement’ in the rest of the brief. ‘EUSLA’ was the right choice.”
This conversation illustrates, first, why you shouldn’t quarrel with me while I have this nifty megaphone at Above the Law and you’ve got bupkis; I can’t possibly lose. And the conversation illustrates, second, the meaning of “digging yourself into an even deeper hole.” “EUSLA” is the wrong short-form in a brief, and your earlier mistakes don’t justify your later one . . .
Perhaps you did use the phrase “EUSLA” in depositions to refer to the license agreement. Why would you possibly have done that?
As a general matter, everything we do in litigation is aimed at one goal: victory. If we’re taking depositions, then we’re heading toward one of two finish lines: summary judgment or trial (or, of course, settlement, but you’ll do better in settlement if you’ve positioned things for victory).
If you have the endgame in sight, why would you possibly call your license agreement an “EUSLA” during a deposition? You don’t want to use that short-form in the summary judgment papers, because the short-form is unintelligible alphabet soup. And you surely don’t want to use the short-form “EUSLA” at trial; that would be even worse.
Good lawyers understand that jurors are not like you and me; they have not spent three years in law school learning fancy words. Save your elevated diction and highfalutin vocabulary for social situations; at trial, you’d better sound like a common man. At trial, you had better not be asking a witness whether “by execution of the contract, the agreement was thereby consummated.” At trial, the question is whether “when you signed that paper, it was a done deal.”
If you agree with this (and I’m right, so you should), then we really can’t call the software license agreement an “EUSLA” when we’re standing before a jury. That would make us sound like over-educated jerks. At trial, we’ll have to call the software license agreement something that sounds more sensible — perhaps, say, a “software license agreement.”
My outside lawyer is implicitly correct that it might be confusing to ask a witness at trial about a “software license agreement” and then impeach the witness with deposition testimony that talked about an “EUSLA.” But the solution to that problem is not to complicate things at trial; the solution is to simplify things at deposition. The correct short-form for a document throughout the life of a case is the short-form that you ultimately want to use at trial: here, that’s “software license agreement.”
Use the phrase “software license agreement” at deposition (because you have your eye on the prize — victory at summary judgment or trial). Use that short-form in your summary judgment papers (because “software license agreement” is so much more helpful to a reader than “EUSLA”). And use that short-form at trial (so jurors don’t spit in your eye).
Don’t screw things up at the outset by calling the “software license agreement” an “EUSLA” during depositions, and then tell me that your early error must infect everything else in the life of the case. When I edit your summary judgment brief and you try to justify using an unpersuasive short-form because you’ve made an earlier mistake at deposition, you’ve simply dug yourself into a deeper hole.
And, whatever you do, don’t quarrel with me when I control this keyboard and you don’t. That’s just not a fair fight.
Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law (affiliate link) and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide. You can reach him by email at [email protected].