Document Creep – Longer, But Not Better?

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Congress ordered that the Declaration of Independence be “fairly engrossed on parchment.” [“Engross” means to “write in a large, clear hand.”] In olden days, lease, notes, mortgages, purchase and sales agreements, and all other documents were also “engrossed,” though unfortunately for researchers, not always in a large, clear hand. Then, copies were made. Where money was short or where the perceived value was absent, those copies were also made by hand. This is a craft no longer in much demand. For more important documents, a printer’s services were used, both for original documents to be executed and for copies of handwritten ones. The reproductions weren’t always faithful to the originals. For example, an early printing of the Declaration of Independence omitted one of the signatories. He was Thomas McKean, and he served as a President of Congress, President of Delaware, Chief Justice of Pennsylvania, and Governor of Pennsylvania. That was no small omission, and to more than just his family.

Our early handwritten legal documents had another thing in common with the Declaration of Independence. They were sparse. There were only 1,458 words in the Declaration, fewer than the average length of Rumination blog postings. [There is a message there, one we’ll ignore.] Here we have a founding document, a revered one (the Declaration, not this blog), yet it is remarkably short. So were leases before typewriters came into everyday use. With their introduction, it became easier to “include and expound.” Combined with the help of carbon paper and onionskin, faithful copies were now economically available. No longer would the copy differ from the original (other than when it came to margin notes and interlineations, a problem sometimes still seen). Along with these advantages, economy, speed, and faithful copies, the documents grew in length. 

Jump to today. With word processing, especially the ability to do “cut and paste” and “global replacements,” lengthy documents are mindlessly possible. The possibility has become a reality. With the growing use of artificial intelligence (AI), the limits are boundless.

Now that it is cost-effective to produce unlimited length documents, it is fair to ask: Are we better off?” Before some readers gather rotten tomatoes for battle, we’ll concede our answer is: “Yes.” But, it isn’t an unmitigated, “Yes.”

When reviewing real estate portfolios that include long-held properties, many of us have reviewed documents of long ago. And when we do so, we are exposed to the contrast between older leases, etc. and the ones created in 2020. In general, to use a euphemism, the older ones are less comprehensive. The insurance provisions are sketchier. So are most, if not all, others. The draftspeople didn’t even seem to know that there is something such as a pandemic.

Yet, for the most part, they worked. Why is that? Admittedly, when we look at an older lease (or other “living” document), we are looking at a subset of that class of documents – the ones that worked. We aren’t looking at deals that fell apart. But there must be more. Indeed, most of the documents were never “tested” by the hypothetical situations we now seek to cover in our agreements. The absence of a damage and destruction provision in a lease is not an issue if there hasn’t been any damage and destruction.

But we think there is another factor. Brevity requires sharper thinking. We need to cover potential situations and their outcomes more comprehensively when word quotas are small. So, in older documents, we see more confidence in the “all, except” model. We define that model by an example:

[Tenant or Landlord, pick one] must maintain, repair, and replace every physical component of the Leased Space regardless of the expectancy, need, reason or cost for such maintenance, repair or replacement, except only that [the other party] must …

Doesn’t that say everything? Yet, we have created an environment where we are afraid to include words like roof, structure, floor, and much more.

Automating tools have made us lazy. We no longer edit our writing to make it clear and concise. Ruminations is a prime example, but Ruminations needs to stay true to its dictionary definition, [That’s our rationalization, one that doesn’t apply to leases and other agreements.] If an agreement has a sentence that could be interpreted (or misinterpreted) in more than one way, instead of rewriting it, we add several “clarifying” sentences. Then, one of those added sentences may need a “little” elaboration, and so on. After a while, we have a lengthy document, not necessarily a better one. Then, we use that document as the basis for the next one, almost always adding to it, not making it more precise or concise.

Though not the originator of the statement or concept, Isaac Newton, in 1675, is reported to have said: “If I have seen further it is by standing on the shoulders of Giants.” That doesn’t mean that Newton saw new things to be added to what had come before. It meant that he was informed by history when he reconceptualized how some aspects of the universe worked. We can emulate Sir Isaac by learning from our existing documents and rewriting them as complete yet clearer and more concise ones. We need to cover the “horses,” but not the “zebras.” We need to offer fewer words whose meaning can be twisted beyond comprehension.

Will our words today change anyone’s drafting approach (or dare say our community’s approach or even ours) by one iota? We are realistic – “No.” Does that mean we can’t be aspirational? Again – “No.” What sayeth thou?

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Comments

  1. Jeremy J Deeken says

    Good drafting requires a certain level of engineering. As someone who dabbled in chemical engineering prior to re-inventing myself as a scribe, I see many similarities between the two pursuits.

    It’s relatively easy to synthesize a byproduct of petroleum, what is harder is to synthesize that same byproduct at minimal cost (and maximum efficiency) and that is where the engineer earns their keep.

    In the legal context, good drafting results in efficient communication, producing a document that is both comprehensive and succinct:

    Say as much as possible in as few words as is possible.

    • Love the engineering comparison Jeremy. I’ve used it many times. Unfortunately, our profession has too many for which efficiency is no concern at all.

  2. Elliot L. Warm,. General Counsel says

    Part of the problem is that we as lawyers are too married to tradition in drafting, sometimes being afraid that to change or remove certain words will give us less than we had before. For example, woe the lawyer who dares to have the other party merely hold harmless without indemnifying. (Yes, I know that one is to keep the other party from liability in the first place, and the other is to reimburse, but would the absence of the indemnification really change a judge’s decision, and does one really need to “save, hold AND keep” harmless the party in question, not to mention “defend?”) Then there are the mortgages that have literally expanded to the extent of triple figures in the number of pages. The mortgagor is not, for example, simply pledging its interest in the applicable real estate but in property that often requires four or five pages of description – the hereditaments, accessions, accretions, etc. I do understand that documents, such as the form of lease that as an in-house counsel I have had a hand in developing for almost 30 years, get longer due to lessons we learn as lawyers when things go wrong and there is not a properly protective or helpful clause, but I have no doubt that I could shorten the lease if I weren’t too lazy (or maybe too old) to make the daunting effort. I think that every writing of any nature can, after an initial draft, be improved by becoming less rather than more. That likely includes this post.

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