My Rant on “By Way of Example”, a Legal Drafting Pet Peeve
Jay Parkhill August 9th, 2007
Someone pointed me to this interesting column on the inner thought process of developers- the tension between building an application to fail fast or fail slowly. Here’s an analogue from the legal world.
One type of language I have seen a bunch of that drives me crazy is “by way of example”. Sometimes certain ideas are hard to capture precisely and people fall back on “by way of example” to help add clarity, such as “by way of example, during a leap year Februay 29 will not be considered in accounting for . . .”I don’t like this. My goal in drafting any document is to capture the meaning simply and clearly. That’s not to say I succeed all the time and occasionally ideas are so complex that a good example can paint the picture that replaces 1,000 words. It’s a tool to use sparingly, though- not a shortcut or a substitute for clear drafting. If I find myself reaching for the “example” too often, I must not be putting enough effort into capturing the ideas properly.
Leaving out the example with inexact language may be like failing quickly- though the consequences may be litigation rather than restarting the program. Undesirable either way. Adding the example may let the agreement fail slowly- getting the language right and using examples sparingly where really necessary let the agreement be flexible enough to accommodate changes in user circumstances.