Stop Your Heretoing and Herebying

We are being bludgeoned by unnecessary contract words.

Law students get out of law school and become lawyers and think they have to write lawyerly. And by “lawyerly” I mean “ridiculously.”

Lawyers — and non-lawyers who copy and paste stupid things lawyers write — have wasted untold man hours during which people could have been doing real work but instead having been reading contractual provisions like this:

Contractor shall comply with all laws and regulations applicable to the services hereunder, including but not limited [long list of various and probably unrelated statutes, regulations, laws related to child labor, and maybe even some treaties with foreign nations].

Just why? Of course the parties have to comply with laws. The whole sentence is unnecessary, but then the drafter has to throw in that hereunder to poke a stick at us. Even the word “all” is a redundancy. There is no difference between “comply with laws” and “comply with all laws.” Some drafters even go for “any and all,” which is apparently some new level of seriousness.

Contracts should be written so that they can be read with understanding. Nothing more and nothing less.

Litigators will sometimes get scolded by a fed-up judge for wordiness in brief writing and motion practice. Judge Robert Kressel of the U.S. Bankruptcy Court for the District of Minnesota issued “order preparation guidelines” for attorneys who prepare proposed orders for his consideration. One of the guidelines is “eliminate superfluous words.” He offers this example:

Compare the meaning of “Now, therefore, it may be and is hereby ordered that:” with “It is ordered:”

The two phrases have the same meaning. Only one of them is uttered by humans.

There may be no more common advice in writing for judges than to be clear and concise. Say what you mean and say it in as few words as possible. The advice has to be repeated so often because it is so commonly ignored. But at least there is the restraint of the fear of judicial admonishment.

There is no such restraint in the world of commercial contract drafting. One side drafts a poorly worded (and styled) agreement. The other side has to spend its effort negotiating the substance, so there’s no time to quibble over style. However, the style gets in the way of the substance. The reviewer has to read fifty words when ten would have conveyed the intent.

I was really presented a contract once with this opening:

“The parties hereto hereby acknowledge that, pursuant to their mutual intention, understanding and agreement, the Services include, without limitation, the operations and activities meeting the special and distinct needs of Shipper in the conduct of its business which are described in Appendix C attached hereto and hereby made a part hereof.”

The very next sentence also started with “the parties hereto hereby.”

What is all this heretoing and herebying? Was there some confusion about who the parties were or what they were doing? Why do they even have to say that they are acknowledging anything? Isn’t the fact that they are signing a contract an acknowledgment that they agree to its terms? If the services are to include certain things and there’s no stated limitation, why do we have to write “without limitation?”

For the love of all that is good in the world, this needs to stop. Forthwith.

Jason Steffens is currently in-house contracts counsel for a large trucking company, spending his days reading contracts with too many words in them.