In-House Counsel, Litigators

Prolixity And The Conservation Of Ambiguity

Adding words does not always add clarity, as in-house columnist Mark Herrmann explains.

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dartboard pen inside straightI swear the title of this column was the title of a law review article many decades ago.

But Google fails me: I don’t find the title anywhere.

In any event, I don’t think the title is original to me, but I can’t give proper credit to the source.

The concept is this: Adding words does not always add clarity.

Suppose you have quite a long document. You want to eliminate some loophole. You add a sentence to eliminate the loophole.

Now that you’ve added the sentence, someone can rely on the new sentence to find ambiguity in the pre-existing stuff.

A law, or regulation, or contract is not like a grid of a certain size, with every addition of words filling in more of the grid and eliminating uncertainty.

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A law is more like a grid of a flexible size, and every time you add new words you expand the size of the grid, creating more uncertainty.

Think about the Internal Revenue Code.

Smart minds have dedicated generations to trying to make it absolutely precise, eliminating all room to quibble.

How’s that working out for you?

So perhaps more words, as a matter of theory, cannot create clarity.

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But there’s more to it than that: Plaintiffs don’t attack things that are clear. That would be silly; plaintiffs would lose.

A contract always seems poorly drafted when it comes under the litigator’s microscope. This is not necessarily because the contract was poorly drafted, but because no one attacks the clear parts of the contract. Rather, a litigant roots around for the one piece of the contract that’s subject to doubt, and then drives a lawsuit through that piece of the contract.

The same is true of the warning label on a product.

If the label clearly warns about some risk, then the lawsuit doesn’t challenge that; it’s hopeless.

Instead, the lawsuit challenges whatever the label didn’t warn about, or insists that what the label said wasn’t sufficiently precise, or loud, or poetic: There’s a risk that wasn’t disclosed; there’s a risk that was disclosed, but not prominently enough; there’s a risk that was disclosed, but the evidence suggests the frequency of injury was higher than the label suggested; the plaintiff’s precise injury was caused by something slightly different than the disclosed risk; whatever.

(People have hypothesized about legal risk caused by the opposite – over-warning: Your label was so long and warned about so many different risks that it didn’t sufficiently emphasize the one risk that injured me.)

No matter what you say in the label, it will be subject to dispute — not because the label was poorly drafted, but because people pick fights around the edges of documents, no matter how perfect the documents are.

What does that mean for us?

First, don’t be too critical of the draftsmen. The draftsmen can be pretty darn good, and the document can still be uncertain.

Second, courts should understand this. It’s impossible to eliminate all doubt; the law should require only what can be crafted by the mind of man and written in the available language.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now responsible for litigation and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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