I am a huge fan of Ken Adams‘ blog, Adams Drafting. His post, The Perils of Definedtermitis, wonderfully illustrates both clear writing and the cost to clients when lawyers write like, well, lawyers. Here’s the setup:
I was reviewing a clause in a software sale agreement with a major third-party distributor. I got to the assignment clause, and it was very peculiar:
“Assignment. Either Party shall neither assign any right or interest … nor delegate any obligations …”
I revised the clause:
“Assignment. Neither party can assign any right or interest … or delegate any obligations ….”
All’s well, right? Not so fast:
I get the following comment back:
“‘Either Party’ is a defined term, see first paragraph of cover page.”
It was, I remembered reading it, but I struck it because it read:
“‘Either Party’ means either Licensee or Company.”
In any case, sticking the definition of “Either Party” into the clause doesn’t help the clause, it only makes it worse:
“Assignment. Either Licensee or Company shall neither assign any right or interest … nor delegate any obligations.”
The other lawyer didn’t take to kindly to my mental exercise especially when I said I could make heads or tails of how it ought to apply. “It’s the assignment clause, for Pete’s sake. We’ve already wasted too much money thinking about it!”
How much did poor writing cost the drafter’s client? If her or she did this to the assignment clause, imagine how the rest of the contract must have been drafted.
Good, clear, simple writing is good client service.