Sunday 17 March 2013

A Blue Peter guide to writing like a Lawyer


It takes years of study and practice to write properly florid legal text. While celebrity lawyers like Stanley Fish have taken ill-advisedly to the presses to entreaty us to write all our prose the same way, no-one actually enjoys reading legal text: not even the curmudgeon who has taken such pleasure in writing it. Construing a contract should not be a boldily pleasure but an act of ascetic sufferance the reward for which comes in the hereafter[1]. Legal counsel does this so the client doesn't have to.

So here is a rare peak inside the fevered mind of a deal lawyer. Take a simple sentence conveying a simple proposition. The less content the better. For example:
Unless we hear from you before the end of the week, we’ll assume you are happy with the termsheet.
Now imagine you are the deal lawyer. Your client asks you to “just have a quick look at this statement to make sure this is ok”. Here is your chance.

The first job is to depersonalise. Law is a formal, not colloquial. It is business. We should not countenance a familiar “we” and “you”: this is a commercial contract not a family reunion, or an outreach centre. Parties should address each other as if they were unacquainted third persons.
Unless the vendor hears from the purchaser before the end of the week, the purchaser will assume the vendor is happy with the termsheet.
But why have easy-to-follow active tenses, when we can depersonalise things further, and elongate with denser constructions? The passive tense is your friend. (If you are a commercial lawyer, you have to take friends wherever you can find them).
Unless the vendor is advised by the purchaser before the end of the week, the vendor will be assumed by the purchaser to be happy with the termsheet.
This all still seems a little loosey goosey. Commercial lawyers have no truck with loose geese. It is time to start layering on detail. This is a painstaking job, and should be done in stages. First, be infinitely clear about the times, dates, deadlines.
Unless the vendor is advised by the purchaser on or before the close of business in London on Friday 22 March 2013, the vendor will be assumed by the purchaser to be happy with the termsheet.
I said infinitely clear. So don’t forget contingencies! What, for example, if 22 March is a public holiday?
Unless the vendor is advised by the purchaser on or before the close of business in London on Friday 22 March 2013 (or, if such date is not a business day in London, the close of business on the immediately following day that is a business day in London), the vendor will be assumed by the purchaser to be happy with the termsheet.
Infinitely clear, I said: We have not yet provided what should happen if the immediately following business day falls in the following calendar month. Perhaps there might be some adverse tax consesquences. You might have to book revenue in a different quarter. Who knows? Better be safe than sorry. After all, as deal counsel you can’t rule out a week and a half of public holidays being spontaneously declared (a Royal Wedding for example), or war suddenly breaking out. And you can be sure, if war should break out between now and the end of the week, the very first thing your client will do is sue your ass for forgetting to think about it. Sure as eggs. So be careful.
Unless the vendor is advised by the purchaser on or before the close of business in London on Friday 22 March 2013 (or, if such date is not a business day in London, the close of business on the immediately following day that is a business day in London, provided that if such immediately following Business Day would not fall in the calendar month of March, such date will be deemed to be the business day in London immediately prior to Friday 22 March), the vendor will be assumed by the purchaser to be happy with the termsheet.
As we inspect the detail, note that some of this original language is a bit sloppy. What is meant by “happy”, exactly? And what if our napkin contradicts the legal contracts we’re going to draw up?
Unless the vendor is advised by the purchaser on or before the close of business in London on Friday 22 March 2013 (or, if such date is not a business day in London, the close of business on the immediately following day that is a business day in London, provided that if such immediately following Business Day would not fall in the calendar month of March, such date will be deemed to be the business day in London immediately prior to Friday 22 March), the vendor will be assumed by the purchaser to have consented to the material economic terms of the transaction, as set out in the term sheet which is attached to this letter as an annex, such consent always to be subject to the legally binding terms of the transaction as shall be agreed between the parties on or before the closing date.
It still isn’t clear who we’re talking about. Just in case anyone is in any doubt, can we say? With infinite certainty?
Unless Joe Bloggs (such person, together with its successors and assigns, the “Vendor”, which expression will, unless the context requires otherwise, include reference to such person’s directors and employees (“Personnel”) but will exclude reference to consolidated and non-consolidated affiliates of such person, howsoever described (“Affiliates”)) is advised by John Doe (such person, together with its successors and assigns, the “Purchaser”, which expression will, unless the context requires otherwise, include reference to such person’s Personnel but will exclude reference to such person’s Affiliates) on or before the close of business in London on Friday 22 March 2013 (or, if such date is not a business day in London, the close of business on the immediately following day that is a business day in London, provided that if such immediately following Business Day would not fall in the calendar month of March, such date will be deemed to be the business day in London immediately prior to Friday 22 March), the Vendor will be assumed by the Purchaser to have consented to the material economic terms of the transaction, as set out in the term sheet which is attached to this letter as an annex, such consent always to be subject to the legally binding terms of the final transaction documents as shall be agreed between the parties on or before the closing date.
But hold on: what if my client agrees to change the deal in the mean time? Or events overtake us?
Subject to any subsequent mutually agreed amendment to the terms hereof between the parties, such amendments if made orally to be subsequently confirmed by the parties in writing within a reasonable period of time (provided that any failure to confirm such oral amendment shall not operate to vitiate such amendment) or any other written agreement between the parties, whether or not expressed as an amendment hereto, which is intended to modify the terms of this agreement, unless Joe Bloggs (such person, together with its successors and assigns, the “Vendor”, which expression will, unless the context requires otherwise, include reference to such person’s directors and employees (“Personnel”) but will exclude reference to consolidated and non-consolidated affiliates of such person, howsoever described (“Affiliates”)) is advised by John Doe (such person, together with its successors and assigns, the “Purchaser”, which expression will, unless the context requires otherwise, include reference to such person’s Personnel but will exclude reference to such person’s Affiliates) on or before the close of business in London on Friday 22 March 2013 (or, if such date is not a business day in London, the close of business on the immediately following day that is a business day in London, provided that if such immediately following Business Day would not fall in the calendar month of March, such date will be deemed to be the business day in London immediately prior to Friday 22 March), the Vendor will be assumed by the Purchaser to have consented to the material economic terms of the transaction, as set out in the term sheet which is attached to this letter as an annex, such consent always to be subject to the legally binding terms of the final transaction documents as shall be agreed between the parties on or before the closing date.
The problem is, now, that this is starting to look like a pretty onerous sort of obligation, so we need to be extra careful to protect your client’s interest. How do you know that your won’t be held to a technical provision with malicious intent?
Subject to any subsequent mutually agreed amendment to the terms hereof between the parties, such amendments if made orally to be subsequently confirmed by the parties in writing within a reasonable period of time (the reasonableness of such period as determined by the parties acting in good faith and in a commercially reasonable manner and provided that any reasonable failure to confirm such oral amendment shall not operate to vitiate such amendment) or any other written agreement between the parties, whether or not expressed as an amendment hereto, which is intended to modify the terms of this agreement, unless Joe Bloggs (such person, together with its successors and assigns, the “Vendor”, which expression will, unless the context requires otherwise, include reference to such person’s directors and employees (“Personnel”) but will exclude reference to consolidated and non-consolidated affiliates of such person, howsoever described (“Affiliates”)) is advised by John Doe (such person, together with its successors and assigns, the “Purchaser”, which expression will, unless the context requires otherwise, include reference to such person’s Personnel but will exclude reference to such person’s Affiliates) on or before the close of business in London on Friday 22 March 2013 (or, if such date is not a business day in London, the close of business on the immediately following day that is a business day in London, provided that if such immediately following Business Day would not fall in the calendar month of March, such date will be deemed to be the business day in London immediately prior to Friday 22 March), such Purchaser acting in good faith and in a commercially reasonable manner, the Vendor will be assumed by the Purchaser to have consented to the material economic terms of the transaction, as set out in the term sheet which is attached to this letter as an annex, such consent always to be subject to the legally binding terms of the final transaction documents as shall be agreed between the parties on or before the closing date.
Good faith. I like that. But wait a minute: if in acting in good faith that doesn't mean my client is somehow responsible to to its counterpart as some sort of fiduciary does it? Best be sure by using the great smart bomb in the lawyer’s armoury. For The Avoidance Of Doubt. No five words in the legal lexicon are more apt to create doubt where none before existed.
Subject to any subsequent mutually agreed amendment to the terms hereof between the parties, such amendments if made orally to be subsequently confirmed by the parties in writing within a reasonable period of time (the reasonableness of such period as determined by the parties acting in good faith and in a commercially reasonable manner provided that any reasonable failure to confirm such oral amendment shall not operate to vitiate such amendment) or any other written agreement between the parties, whether or not expressed as an amendment hereto, which is intended to modify the terms of this agreement, Unless Joe Bloggs (such person, together with its successors and assigns, the “Vendor”, which expression will, unless the context requires otherwise, include reference to such person’s directors and employees (“Personnel”) but will exclude reference to consolidated and non-consolidated affiliates of such person, howsoever described (“Affiliates”)) is advised by John Doe (such person, together with its successors and assigns, the “Purchaser”, which expression will, unless the context requires otherwise, include reference to such person’s Personnel but will exclude reference to such person’s Affiliates) on or before the close of business in London on Friday 22 March 2013 (or, if such date is not a business day in London, the close of business on the immediately following day that is a business day in London, provided that if such immediately following Business Day would not fall in the calendar month of March, such date will be deemed to be the business day in London immediately prior to Friday 22 March), such Purchaser acting in good faith and in a commercially reasonable manner, the Vendor will be assumed by the Purchaser to have consented to the material economic terms of the transaction, as set out in the term sheet which is attached to this letter as an annex, such consent always to be subject to the legally binding terms of the final transaction documents as shall be agreed between the parties on or before the closing date. For the avoidance of doubt, the parties enter this Agreement as arms’ length contractual counterparties, at what they consider to be market prices, for valuable consideration and without notice of any interests to the contrary and nothing in this Agreement will constitute or be construed as, or be deemed to constitute or be construed as, a joint venture or partnership between the Vendor and the Purchaser. Neither the Purchaser nor the Vendor shall assume or be deemed to assume any fiduciary responsibilities or other analogous obligations of a trust or agency nature, and each parties hereby acknowledges that it has obtained such legal advice as it as considered necessary or appropriate to assess the suitability and/or appropriateness of entering into this transaction and expressly disclaims any reliance on the other, or any responsibility for advising the other, as to any risks, economic, legal, regulatory, reputational or otherwise, which may arise (whether or not such risks to arise) as a result of the contemplation of the transaction contemplated herein.
And so our 19 word napkin scribble has evolved into a 500 word behemoth. And we haven't yet started inserting indemnities, let alone a governing law clause. It requires no particular acumen, but just sheer bloody mindedness, to carry on, as we lawyers like to say, ad infinitum. Ad nauseam, even.





[1] i.e., when the bill becomes due.

Monday 4 March 2013

Thomas Kuhn, Science and that dreaded word “Culture”


Should we pay more attention to the relativists?

A correspondent on one of my reviews recently remarked, “Oh yes, of course objective reality exists”, in exasperation at my hesitation before that thought. 

Though few trees fall in the internet forest which make less sound than my blog posts, I thought it would be worth expanding on this comment, if just to see if anyone at all was listening.

While Thomas Kuhn, whose book I was reviewing, never said anything quite as incautious as I tend to, the chain of thought that leads there can be traced back Kuhn’s wonderful The Structure of Scientific Revolutions, as short and elegant a book of philosophy as you could hope to read.

It is also is something of a bĂȘte noire amongst a certain group of scientists who regard it as the cause of much modern (or post-modern) mischief.

Kuhn argued that the direction scientific development must be significantly influenced by the environment in which it is produced. For one thing, a scientific discipline of any sophistication will have developed its own institutions, social structure and hierarchy. The social rules surrounding credentialised practice and discourse within the discipline will be quite complex and very formal.

This observation (which ought to be familiar to anyone with any experience of organisational hierarchy) puts certain scientists into quite a flap, especially when the dread word “culture” is used in place of “environment”. That science is objective, and not culturally determined, is something of – well – an article of faith.

But in this context “culture” is simply shorthand for all those necessary conditions for science even to be carried out: the body of established knowledge; the rules of acceptable scientific procedure; the academic institutions and research institutions; the journals and societies; the undergraduate and postgraduate community which trains, credentialises, develops and evaluates developing science and the practical work of scientists in the field: All of those things which distinguish between neurobiology and homoeopathy1.

Thomas Kuhns insight was that this picture of inexorable progress towards an unchanging goal doesn’t seem very well to fit the historical record. 

Nonetheless the proposition that science is coloured by its necessarily human context – is a product of its culture – undermines the supposition, taken as read since the enlightenment, that the journey of science is one of progressive truth-revelation. Science (courtesy of which plants photosynthesise, aeroplanes stay in the sky and planets orbit the sun) surely progresses: inexorably, it zeroes in on transcendental laws of the cosmos: Aristotle had a good old go, Ptolemy got a bit closer, Copernicus and Tycho Brahe really started to get warm, Newton got it largely right and, since Einstein the process has been one of ever more infinitesimal fiddling around the edges.

Thomas Kuhn was a historian, and his insight was to observe that the picture of inexorable progress towards an unchanging goal doesn’t seem very well to fit the historical record. Ptolemy’s geocentric model of the cosmos, which must have seemed eminently satisfactory at one point (for 1,600 years, as a matter of fact), bears almost no relation even to Copernicus’ heliocentric model, let alone to Linde’s Multiverse model, in which bubble universes nucleate in a space-time foam2. In the language of evolution, these succeeding theories are not adaptations of their predecessors, but new organisms wiping the older beasts out. Extinctions. Whatever truth Ptolemy was closing in on, it was not the same one that interested Linde.

This leaves scientists in a cleft stick: either everything which went before and was believed to be science in fact wasn’t (which makes you wonder how they’re so certain this time) or it was, but it was just temporarily barking up the wrong tree (which also makes you wonder how they’re so certain this time) or it was, and they were barking up the right tree, but it’s just not a tree we’re interested in any more. Each of these options as unfortunate implications.

A less complicated reading can be arrived at by reducing science’s ambition from “sole revealer of the sacred truths of the cosmos” (which sounds a little religious, doesn’t it?) to “devising pragmatic models of how the universe appears to work, to help us get along in it”. Under this less ambitious framework, as new information comes to light prevailing models can be adjusted, and where no adjustments can save the day, models can be jettisoned entirely, something only apt to happen when a better model is to hand (a broken model is better than no model at all). Kuhn’s observation was this is how science does seem to operate.

As sensible as it is, it is still Richard Dawkins’ cue to work himself into a righteous frenzy at the thought of Kalahari bushmen examining rabbit entrails. Dawkins’ own impression of the argument goes like this:

“There is no absolute truth. You are committing an act of personal faith when you claim that the scientific method, including mathematics and logic, is the privileged road to truth. Other cultures might believe that truth is to be found in a rabbit’s entrails, or the ravings of a prophet up a pole. what is only your personal faith in science that leads you to favour your brand of truth.” 3

The idea that we may as well consult the entrails of rabbits as Newton’s laws of mechanics when devising flying machines is, of course, absurd. And while it’s obviously a gross distortion of any actual philosophy – Dawkins quotes only his own vivid imagination – this sort of bluster has won more people over than it really ought to have.

Even without guaranteed privilege of science over non-science, good science still has a way of differentiating itself, but the richness and complexity of its account and its predictive power. Flying machines designed by reference to the configuration of rabbit entrails will stay in the sky less often than those designed according to modern aeronautics, and that should carry the day. (If, statistically, it didn’t, there might be something those rabbits know that we didn’t!)

Next time: Defending the indefensible? Relativism proper.

1Homoeopathy has its own culture too, of course.
2I have absolutely no idea what this means. And nor do I want one.
3“What Is True?” collected in A Devils Chaplain, Phoenix, 2003