Why you should draft contracts with long, run-on paragraphs (a satire)

(Revised 2015-12-22)

A fine example to emulate

Forget all those self-anointed contract drafting gurus who claim that drafters should write short sentences and short paragraphs. You should do instead as the drafters did in the warranty provision reproduced below, which is excerpted from a Collaborative Research and License Agreement between Pfizer and Rigel Pharmaceuticals:

9.2.12 PATENTS AND TRADEMARKS. To the best of its knowledge (but without having conducted any special investigation), Rigel owns or possesses sufficient legal rights to all patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses, information, and proprietary rights and processes (including technology currently licensed from Stanford University) necessary for its business as now conducted and as proposed to be conducted without any conflict with, or infringement of the rights of, others. Rigel currently licenses certain technology from Stanford University (the “Licensed Technology”) on an “as is” basis, with no representation or warranty from Stanford University that such technology does not infringe the proprietary rights of others. To Rigel’s knowledge, Rigel has not, as of the date hereof, received any claims from any third party alleging that the use of the Licensed Technology infringes the proprietary rights of such party. Except for agreements with its own employees or consultants and standard end-user license agreements, there are no outstanding options, licenses, or agreements of any kind relating to the foregoing, nor is Rigel bound by or a party to any options, licenses, or agreements of any kind with respect to the patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses, information, and proprietary rights and processes of any other person or entity, other than the license agreements with Janssen Pharmaceutica N.V., Stanford University, SUNY, and BASF. Rigel has not received any communications alleging that Rigel has violated or, by conducting its business as proposed, would violate any of the patents, trademarks, service marks, trade names, copyrights, trade secrets, or other proprietary rights or processes of any other person or entity. Rigel is not aware that any of its employees is obligated under any contract (including licenses, covenants, or commitments of any nature) or other agreement, or subject to any judgment, decree, or order of any court or administrative agency, that would interfere with the use of such employee’s best efforts to promote the interests of Rigel or that would conflict with Rigel’s business as proposed to be conducted. Neither the execution nor delivery of this Agreement, nor the carrying on of Rigel’s business by the employees of Rigel, nor the conduct of Rigel’s business as proposed, will, to the best of Rigel’s knowledge, conflict with or result in a breach of the terms, conditions, or provisions of, or constitute a default under, any contract, covenant, or instrument under which any of such employees is now obligated. Rigel is not aware of any violation by a third party of any of Rigel’s patents, licenses, trademarks, service marks, tradenames, copyrights, trade secrets or other proprietary rights.

Advantages of long, run-on paragraphs

Think about all the advantages of having such a long provision:

• When your client reads a provision like the one above, she’ll be impressed by your lawyering skills, and happy to be paying your fees to support the creation of a true work of art.

• Your client isn’t that interested in getting the deal to signature quickly, so it won’t bother her that the dense verbiage will take longer for everyone to review, edit, and sign off on.

• The other side’s contract reviewer, lulled by the MEGO effect (“mine eyes glaze over”), might unwittingly skip over the problematic phrase that you (inadvertently?) buried in the middle of the paragraph. Don’t fret — surely your counterpart won’t think you were trying to pull a fast one on him.

• Nor will your counterpart object to spending a lot of time puzzling over long sentences and paragraphs; it means more billable hours for him.

• Your firm’s managing partner will thank you for using such a dense writing style — using less white space in a contract draft means you need less paper and toner to print it out, and those things aren’t free. And “readability” is such a vague, subjective thing; in contrast, the cost savings you achieve by printing fewer pages are easily measured, and will be noticed and rewarded.

• If the signed contract ever has to go to litigation, the judge’s law clerk will be glad to have a fine specimen to study, to help fill those endless idle hours in chambers.

For heaven’s sake, don’t write shorter paragraphs

In short, by no means should you ever consider breaking up a long paragraph like the above into shorter ones, such as the following:

9.2.12 PATENTS AND TRADEMARKS.

(a) To the best of its knowledge (but without having conducted any special investigation), Rigel owns or possesses sufficient legal rights to all patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses, information, and proprietary rights and processes (including technology currently licensed from Stanford University) necessary for its business as now conducted and as proposed to be conducted without any conflict with, or infringement of the rights of, others. [Non-satirical aside: This paragraph could still be broken up even further into two or even three sentences.]

(b) Rigel currently licenses certain technology from Stanford University (the “Licensed Technology”) on an “as is” basis, with no representation or warranty from Stanford University that such technology does not infringe the proprietary rights of others. [Non-satirical aside: I would have added the word “although” just before the phrase “on an ‘as is’ basis”; otherwise Rigel is warranting that it doesn’t have any guarantees from Stanford, which is an odd thing to promise.]

(c) To Rigel’s knowledge, Rigel has not, as of the date hereof, received any claims from any third party alleging that the use of the Licensed Technology infringes the proprietary rights of such party.

[etc., etc.]

And forget adding visual guideposts

For that matter, don’t even consider merely adding subdivision lettering, and perhaps pilcrows a.k.a. paragraph marks (¶), to serve as visual guideposts, like this:

9.2.12 PATENTS AND TRADEMARKS. ¶ (a) To the best of its knowledge (but without having conducted any special investigation), Rigel owns or possesses sufficient legal rights to all patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses, information, and proprietary rights and processes (including technology currently licensed from Stanford University) necessary for its business as now conducted and as proposed to be conducted without any conflict with, or infringement of the rights of, others. ¶ (b) Rigel currently licenses certain technology from Stanford University (the “Licensed Technology”) on an “as is” basis, with no representation or warranty from Stanford University that such technology does not infringe the proprietary rights of others. ¶ (c) To Rigel’s knowledge, Rigel has not, as of the date hereof, received any claims from any third party alleging that the use of the Licensed Technology infringes the proprietary rights of such party. [etc., etc.]

Or the following, with line breaks and bold-faced subdivision lettering but no pilcrows:

9.2.12 PATENTS AND TRADEMARKS.
(a) To the best of its knowledge (but without having conducted any special investigation), Rigel owns or possesses sufficient legal rights to all patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses, information, and proprietary rights and processes (including technology currently licensed from Stanford University) necessary for its business as now conducted and as proposed to be conducted without any conflict with, or infringement of the rights of, others.
(b) Rigel currently licenses certain technology from Stanford University (the “Licensed Technology”) on an “as is” basis, with no representation or warranty from Stanford University that such technology does not infringe the proprietary rights of others.
(c) To Rigel’s knowledge, Rigel has not, as of the date hereof, received any claims from any third party alleging that the use of the Licensed Technology infringes the proprietary rights of such party. [etc., etc.]

Justification

Remember, lawyers have drafted contracts with long, hard-to-read paragraphs since time immemorial. That alone justifies our continuing to do so.

Bonus tip: Responding to nasty, unscrupulous modernizers

Challenges to this or any other established practice can be easily met by closing your eyes, sticking your fingers in your ears, and chanting, “we’ve always done it that way; we’ve always done it that way ….”

Lest there be any doubt, the foregoing is a satire.