May 7, 2008 - Phil Hodgen

Lazy lawyers write bad documents: “notwithstanding”

I am working on a trust document at this very moment. It is sufficiently painful that I decided to stop somewhere on page 30-oblivion and blog about it.

Someone else wrote this trust document. It is a template from a gigantic trust company and it is <bad words> horrible. It is horrible because a lazy lawyer wrote it. Someone who didn’t want to take the time to do it right.

The time he/she saved in writing will permanently cause the world to lose 100x that amount of time trying to figure out WTF the document means. And no, I’m not going to fix it for them.

Evil incarnate: “notwithstanding” is an evil word and finding it in a document is the sign of an inferior talent.

Let’s say you want to tell the reader “First you do this, then you do that, and when you’re finished do a third thing.” DON’T then add a provision 12 pages later that says “Notwithstanding anything else you might find in this document, here is something that might overrule everything else I’ve written.”

Interpreted into English, that lawyer has just told you: “This is really, really important, so watch out. I’m not telling you where it might apply, I’m not telling you how it might work. kthxbai!? And good luck.”

Second translation: “This is really important but I’m too lazy or stupid to figure out how to tell you about it, so you figure it all out.” (Insert a lot of swear words from Phil right here).

Now I have to go through the entire document and think to myself, “Hmmm. That thing the <blasphemy> lawyer stuck in the Second Schedule. Does that apply to this clause?? What about this one?? What about this one?” And once I find a potential candidate where that “Notwithstanding” trump card might apply, I have to figure out how it applies. In other words I have to be a mindreader.

In addition to making the reader do the work that the author should have done, there is a deeper problem. Writing a document like this makes for potential ambiguities and conflicts in interpreting the document. On another trust document our office is working on right now, both we and the trustee (Gigantic TrustCo #2) agree that we have no <swearing> clue what a particular provision means. And it is a “make or break” point.

Memo to all personnel: if you’re writing a trust document (or any kind of document), it is the job of the author to understand the situation and tell the reader clearly and simply what’s going on. Readers aren’t supposed to guess.