[EDITED] In a scene from the classic movie Cool Hand Luke, Paul Newman takes the pot in a poker game after the last other player drops out. Bystander George Kennedy reaches in and turns over Newman’s cards to reveal … nothing. Kennedy mocks the other player, saying “he beat you with nothin’!” Newman smiles and says, “Yeah, well, sometimes nothin’ can be a real cool hand.”
Contract professionals might riff off of that line: Sometimes boring can be real cool. Many such folks would disagree with legal-writing expert Bryan Garner when he asserts categorically (in a fine article) that the end of a sentence is supposedly its most important part because the end of the sentence packs the most punch. See Bryan A. Garner, How to start a sentence: Consider all your alternatives, and sprinkle in some conjunctions, too (ABAJournal.com).
In a contract, it’s less important for the writing to pack a punch than it is for each sentence to make its point quickly, precisely, and understandably, so as to help speed up legal review and get the contract to signature sooner. And that will usually call for the kind of boring, just-the-facts-ma’am style — Alice will do X, Bob may do Y — that Garner urges writers to avoid. [EDIT: See the end of this post for a Twitter discussion between Garner and me.]
Now to be sure, someone drafting a legal brief wants the brief to catch and hold the judge’s attention. And in that setting, Garner is certainly right when he says that it can be boring for the writer to just keep chugging along with plain old subject-verb-object sentences:
As professional rhetoricians, readers of this column should know what the most important part of a sentence is: the end. Many writers mistakenly think it’s the beginning: They begin a disproportionate number of sentences with the grammatical subject, and they rarely depart from the subject-verb-object pattern.
Boring legal writers create paragraphs of sentence after sentence beginning with a client’s or litigant’s name; interesting writers, by contrast, spice their prose with syntactic variety.
… A sentence might begin with an adverbial of time: “Last April, John died.” Or maybe it would include an adverbial of place: “While visiting Columbus last week, John died.”
Notice how the poignancy is lost if we were to write: “John died last April” or “John died while visiting Columbus last week.”
(Emphasis and extra paragraphing added).
But drafting a contract is not quite the same as drafting a brief for litigation, nor is reading a contract the same as reading a legal brief. When a contract reviewer looks at a draft agreement, she knows that her client generally has just two questions:
- Can I safely sign this now?
- (If the answer is no:) How quickly can you make it signable?
Many contract reviewers would say that they can better answer these client questions when the contract uses simple, even boring, language, with short paragraphs and sentences. (And when you draft a contract, the client generally wants to pay only for “good enough” language that can be signed quickly, not for elegant literary prose.)
As always, writers must keep in mind who their readers are and what those readers will be trying to accomplish. When trying to get a workable contract to signature sooner, “bor-ing!” will normally be the way to go.
EDIT: Garner tweeted that “The principle of end weight—putting emphatic words at the ends of sentences to avoid syntactic fizzle—applies almost as strongly to contractual drafting as in other expository prose. @DCToedt, you give no contrary examples.” He attached a photo of “Not this” and “But this” examples:
I tweeted in response: “In each of your examples, your typical overworked contract reviewer is reading as rapidly as possible and so (I claim) would prefer your ‘Not this’ example because it gets to the point immediately.” Followed by: “As the military briefing acronym goes: BLUF – Bottom Line Up Front.”