It all comes down to words
While certain people in high places view a deal as an art, I view it as a puzzle.
It’s a puzzle with many pieces of varying colors and complexity, depending on the issue at hand and the parties involved. But primarily, it’s a puzzle of words. After all, it’s the contract that seals the deal and signifies a new venture, a shared beginning. And a contract is only a document containing lots of words that have to be put together in just the right way in order to do the job correctly.
It’s the lawyer’s job to make sure the language captures the intent and purpose of what’s agreed to between the parties. Otherwise the outcome won’t be what the client needs or wants. Yes, they’re just words, but they are very important words in the lives of the people who ultimately sign that contract, for they have to live with the consequences.
Actually, I view the entire deal-making process as a series of word puzzles, with the definitive contract being the culmination.
Along the way, there’s the non-disclosure agreement that allows the parties to share and protect their confidential information (check out John Love’s post about guarding confidential information here). The letter of intent follows. This acts as a sort of road map for the deal, defining objectives, players, and scope. Due diligence is a very important step to make sure everything is in order, which is prompted by specifically worded requests and results in pages of pages of reports cataloging myriad details and notations. Then, there’s the definitive contract to tie everything together. For a lawyer, completing it is similar to a puzzler’s joy in acing The New York Times Sunday crossword puzzle.
So when you view these documents as puzzles, you begin to observe patterns of word choices and uses by the various lawyers involved. I’ve often thought, what does a lawyer’s chosen contract language say about her or him? I’ve determined four broad linguistic categories:
Traditionalist – Characterized by the use of legalese and words not found in daily conversation. Whereas the party of the first part utilizes unnecessarily confusing language hereunto the party of the second part….
Story weaver – This type is dominated by litigators who are accustomed to telling a story in a courtroom and often repeat key themes and details in their contracts.
Big picture thinker – Lawyers working for large multinational companies and the law firms that serve them often revert to this style, taking a panoramic view of the situation and using language to mitigate as much risk as possible.
Straight talker – This is the straightforward approach, defined by its plain, understandable language and honest and forthright intentions. The objective of this approach is to accurately characterize the deal and protect against realistic risks. (We at Wright Connatser gravitate to this style.)
My own fascination with words escalated while I was an undergraduate working for a small law firm. I spent a lot of time in the car delivering documents. While I was driving, I’d listen to “A Way with Words” on the radio.
What it taught me is that words are foundational to better understanding among people. And that’s because the right word matters. Whether it’s a tweet, talk with a loved one, or a contract with legal consequences, the right word for the right situation gives us all a better shot at being understood and understanding others.
(Patrick Tickner can be contacted at email@example.com.)