Pet Peeves About Deal Documents – And, An Invitation To Record Your Own

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With a short week ahead, and a fair number of readers on vacation, we thought Ruminations should go light, both in length and in gravitas. So, today, we’ll going to list a number of pet peeves about document styles. Readers are invited to add their own or argue with us. All you need to do is pop your comments into the box at the very bottom of this week’s full posting.

These are not in any particular order and none are enough to ruin anyone’s day. What follows is a list of what we think are distractions of a minor nature. Minor, that is, unless it’s a bad hair day. No, not Weird Al’s ninth studio album.

Legal size paper – Why? So that you have to load this obsolete stuff in your printer. Yes, we have fancy, multiple paper tray printers. But, there is so little demand for this stuff that we don’t want to waste a tray for it.

Overly “styled” Word documents – Styles are great, but when they are so “whiz bang neat,” you can be sure that someone along the way will break away from the rules and then you’ll never get it fixed. What you get in the end (after you’ve fixed the document, either by bypassing the problems or by using brute force) is a prize from Will Shortz.

Fifteen ($15.00) Dollars – It’s not that this will be misunderstood, but it’s wrong. When you overlook this, your client or boss thinks you failed English 101. There’s a lot of stuff like this. Also, on this side of the Atlantic, we put those periods and commas inside the quotation marks.

“Attached hereto” and similar distractions – In almost every case, attached to what (?), if not the document itself? Yes, sometimes the reference could be ambiguous, but not all that often. And, when it is, have a ball.

“Defined below” – That’s not very helpful. If you feel compelled to do that, then point us to where to find the definition. On the other hand, if it is a defined term and not defined right then and there, then we all know it is defined elsewhere (or should have been). Telling us “above” or “below” is less than marginally helpful, especially when you only tell us that when the term first appears. As to telling us the the term is defined in Section such and such, the practice seems to be that this is done only the first time the term is used in the document, and then only if the defined term has not yet been defined. That’s still not very helpful. Save the effort and use your time to make sure there really is a definition somewhere to be found. Better yet, how about putting all of the defined terms in one place, in a section at the beginning of the document?

Underlined or bolded definitions or exhibit references – What are we talking about? Try these examples: “EXHIBIT A” or “Loan Documents.” This is just an invitation for a later contributor to the document to break with the style. In today’s world, we can use the search feature to find definitions. On balance, the most this style does is to invite inconsistency and make more work for keyboarders.

Exhibit “A” – Why not just Exhibit A?

Microsoft Track Changes – Yes, it has its fans. We’re thinking mostly because it is built into Word and doesn’t cost anything extra. On the other hand, email scrubbers do a nice job at pulling all of that stuff out. And, if you don’t pull that stuff out, “thanks for the metadata; we appreciate seeing the deal you didn’t make with the prior people.” We’ve worked with track-changed documents and with “real” (automatically) redlined documents. We think there is no comparison that favors Microsoft’s feature.

pdf draft documents – Wow, here’s a way to return to the good old typewriter days. [For those who have never seen a typewriter, do a web search.] There is no more fun than interlineating comments and changes to what resembles a piece of paper. In actuality, if anyone just plain won’t give us a document that can be edited, we convert the pdf to one. That might introduce some typos and the like, but our time also is valuable. We’ve blogged about this before.

Attached graphic exhibits – For sure, it is convenient to attach graphic exhibits to agreement drafts as they pass back and forth, but really unnecessary. Counterbalancing the convenience is the awkwardness of handling large files and the time it takes for some to load and what they can sometimes do to review and comparison software. It also slows down later editing because of the time the graphic exhibits take to reload as the pagination changes. Further, while our email server knows no file size limits, there are still a lot of email recipients out there with file size restrictions. What do we suggest? We think the graphic exhibit should be shared back and forth as separate attachments, as a single file or a “set,” depending on the file size. Why is this any better? For one, they don’t change as often as does the related document’s text. And, when they do change, it is often not in conjunction with any change to the text of the related document.

Your favorite type font – Certain type fonts are designed for readability. Times Roman is one of them. That’s why almost all modern documents are done in Times Roman (or Times New Roman). There are other easily readable fonts, but sans serif fonts, such as Arial, are not among them. And, while we’re carping about the miniscule things, 12 point type is nicer than 11 point or 10 point or 9 point type.

Unnumbered pages – Add your own thoughts. You can guess what we think.

Initialing every page – We’re sure someone, somewhere and at sometime, wished that every page was initialed, but so few documents require initials on every page, we legitimately wonder why the others do. Has anyone done a benefit/burden analysis?

Add your own pet peeve – We’re not talking about the substantive provisions of purchase and sale agreements, loan documents, leases or other agreements. We’re talking about “stuff” that gets in the way of getting documents turned around quickly. We’re talking about “stuff” that is a waste of good time and talent. Stuff that adds nothing or extremely little to a document, other than the time it takes to plow through it. Here’s what you do: At the very bottom of this page is a box labeled, “Speak Your Mind.” Do just that.

To all celebrating or observing a holiday this week, happy holiday.

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Comments

  1. “Premises is” – besides sounding funky, it’s just wrong. And while I’m at it, the failure to use “its” with words such as “company”, “board”, etc. (“The company agreed to sell their land.”) And now that I’m rolling, does Track Changes really need to insist that we drop the use of “which” in favor of “that”? It is a distinction which I don’t appreciate!

  2. Long sentences without end; any sentence longer than 3 lines should use bullet points;
    Use bulleted (or numbered/lettered) items rather than running on and on in the paragraph.
    Long paragraphs that cover multiple subjects. Break them into shorter and more readable lengths.

    • Jim Henegan says:

      I worked on a Taubman REA that had a 165 line sentence. It took several drafts, but I eventually got them to split it up into multiple sentences.

      I agree with Margaret, it helps a lot to have definitions, section references and exhibits bolded.

      I don’t like calling “Sections” “Paragraphs”. Paragraphs grammatical, not necessarily numbered.

      I usually use 11 point Times New Roman. 12 point is easier to read, but 11 point makes the document shorter.

      Using “Premises” instead of “Demised Premises” can shorten most lease forms by 2 pages.

      Many lawyers put punctuation inside the quoted of defined terms – “Landlord;” I know the general rule is that punctuation goes inside a quotation mark, but I don’t think that should apply when you are defining a term.

  3. Margaret Petersen says:

    “In the event that [blah blah blah]…” There are two words to use here: “If…, then…” It’s called a conditional phrase, and for Pete’s sake, use it. Two words for four or more. Also, “[XX entity / person] shall…” How highfalutin’ – just say “will”.

    That said, I prefer references to Sections, Articles, and defined terms to be bolded or underlined so that at a glance – not a “Find” function – you can see what is being referred to AND can find the freaking definitions just by skimming visually for something in bold or underlined or both. Using the “Find” function requires multiple clicks and that = waste of time.

    Agreed on all else. And one can say “as defined below” or whatever, but say “as defined below in this Section [xx]” or wherever. Don’t make someone look for it.

  4. Traci Riccitello says:

    Sloppy inconsistencies (using bullet points in one paragraph and numbered points in the next, not capitalizing defined terms, using different terms to refer to the same thing, etc.). Using Lessor and Lessee instead of Landlord and Tenant.

    I agree with Margaret, though, that underlined or bolded defined terms and exhibit or section references are helpful. But it must be done consistently, which takes careful review and editing. That’s (part of) our job.

    Great list!

  5. Steve Weinstein says:

    Lawyers who refuse to use “intentionally omitted” when deleting a entire section or article. Thus forcing you to scan the document to correct all article or section references.

  6. It is appalling to me to see the sloppy sentence structure, sloppy punctuation, and sloppy grammar that shows up in documents. I think that’s where many of the one-sentence paragraphs come from – folks don’t know where to punctuate or how, so they just ramble on and on, throw in some “notwithstanding the foregoing” phrases and hope for the best. I am a real fan of “plain speak” drafting. Say what you mean in plain English, so that the folks who are going to be administering these documents for 20 years clearly understand what they’re supposed to do. On a happier note, I love our new lease form that has all the definitions up front, alphabetically. Very cool!!

    • Elliot Warm says:

      While it’s nice to have all definitions in one place, I lean toward having the “words of art” set forth in bold or otherwise highlighted where the words initially appear in the document. I find that in the course of negotiation there occurs the need for added, or possibly omitted, definitions, and it is cumbersome to make changes to the “definitions” section of the lease as well as changes to the substantive provisions. This is especially so if I’m doing my own document preparation.

  7. Barry Bell says:

    I forgot one – not really a peeve, but a grammatical conundrum – Is it the greater (sooner, later, lesser, etc.) of A or B, or is it A and B (e.g., rent increase is the greater of CPI and 3%? CPI or 3%? I believe it to be the conjunctive, but I skipped out on English 1 in college!

    • Barry, I looked this one up recently. According to the grammar website I found, the correct word is “or” – as in the greater of A or B.

      • Christine – I checked with several grammar websites (by the way, who died and made them the emperor?), and it seems that the grammarians like “and”, while the mathematicians argue for “or”. Given a choice between the grammarians and the mathematicians ( the grammarians or the mathematicians?), I’m going with the grammarians. Mathematicians still think “irregardless” is a word.

  8. Apropos of page numbers, one of my peeves is the lawyer who is preparing four or five related documents for the same transaction, all in the same house style of font and spacing, who puts only page numbers in the footers, leaving out the name of the document. It is always those transactions on which the stack of papers, as yet unstapled, is knocked to the floor, jumbling the papers into a mess that can be sorted only by people young enough to still be able to read the six-point document numbers at the bottom.

  9. Moshe Friedman says:

    My two biggest document pet peeves are (1) lawyers that redline a document against an existing redline of the document, so that I can’t tell what the new changes are and (2) lawyers that use modern word processing software to make a document look like a printed form of lease such that I cannot comment on the document by editing the word processing file; rather any changes to the document must be made by means of text inserts on the bottom of the page or on a seperate page.

  10. Elliot Warm says:

    My own pet peeve – excessive use of the “notwithstanding anything to the contrary” kind of provision, particularly in a rider to a document. Why should someone later review the document in question, read the entirety of a particular section thereof, and then firsty determine that the entire section previously read has been deleted or changed drastically? I do plead guilty myself to sometimes using a rider, rather than making changes to the main body of a document, for convenience (or, more likely, due to laziness).

  11. Form lease from the last deal (obviously unread closely by either the last tenant it was used for or its broker) with many artifacts of previous deals that turn out to be redundant or contradictory. Expensive for my client to pay for an attorney to clean it up. Luckily, s/he has me for a broker — when I was a paralegal, I did first pass reviews of leases and contracts on both sides of deals. Still do so for my clients and work closely with their attorneys on documents from then until documents are executed

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