My challenge for you this month is to rescue a perishing art: plain, purposeful, and pragmatic drafting, starting with avoiding the word “but.”
Legal drafting is the ultimate test in verbal dexterity. It is to budding lawyers what chalk carving is to dentistry candidates. Next time you’re opening wide, ask yourself how much you would value a dentist who is clumsy with a pick. Then ask yourself, should you even be a lawyer if you cannot draft?
So here starts the lesson.
Sit down to draft a contract, factum, or cease-and-desist letter. Don’t use the word “but” and try even harder to avoid “however” and “unless.” You’ll find the overall quality of your legal work improving. Start by avoiding the word “but.” Its overuse lies at the heart of a more pervasive ailment, legal exceptionalism. Jeff Ansell, the communications expert, hates the word. Here are his thoughts on it from When the Headline is You: An Insider’s Guide to Handling the Media:
“Consider a statement like, ‘Our government supports initiatives to house the homeless, but. . . .’ Can anything positive follow up a setup like that? It’s similar to a husband telling his wife, ‘I love your hair, but. . .’”
The word “but,” let’s face it, is the lawyer’s most serious addiction. To mask our dependence, we also use “however,” “unless,” “albeit,” and a host of erudite but-workarounds. It is hard to avoid, because the word embodies the way we think.
Lawyers and judges draw boundaries. Boundaries described by excluding, not by cataloguing what is inside. Contracts confer rights and duties, but notably they take them away. Tort law provides compensation to victims of wrongs, but not if to do so is contrary to public policy (“opening the floodgates”; what an image!). In criminal law, you can have your habeus corpus, but the public sees a dangerous person sprung free on a “technicality.” We love to say what is on our mind, but our job often requires us to hide it.
Legal exceptionalism is what ails us
Exceptionalism involves negativity because the loss of goodwill is associated with unfairness. A tax code with loopholes is verbose and frustrating. Compare tax to the lottery, another form of wealth-pooling for the public coffers. A fixed payment per play can win the jackpot. (No need to define the rest as non-winners.)
One reason why we as a profession have drifted into habitual exceptionalism is that it is easier to describe something in generalities, and then carve out exceptions. Describing legal phenomena by what they are not, rather than what they are, is frequently a cop out. Wordsmithing the stand-alone clause that defines what you want to describe is the tough job the public expects us to perform.
Contracts, legal opinions, statutes, and judgments can be working documents and the foundations of relationships and entire societies. This pragmatism applies equally to a supply agreement between two businesses and to a trade deal between the United States and Europe. Court submissions and judgments can let the common law speak and provide guidance. Right now, they often create unpredictable categories of special circumstances.
Start at the top: read how judges write
Concepts that rely on qualifiers and sub-clauses for definition are weaker and more prone to ambiguity. I often find myself plastering on the provisos and caveats to avoid ambiguity, unwittingly multiplying possible meanings. One of the impediments to clearer, more pragmatic law is that exceptionalism abounds in the writings of our top judges. They are our role models.
Take, for example, the most elusive of English common law concepts, the principle of causation in tort law. Chief Justice Beverley McLachlin stated in 2007’s Resurfice Corp. v. Hanke:
“Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful to catalogue the various debates. It suffices at this juncture to simply assert the general principles that emerge from the cases.”
She then let the opportunity to clarify the causation principle slip away by refusing to let go of the wording:
“[T]he basic test for determining causation remains the ‘but for’ test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that ‘but for’ the negligent act or omission of each defendant, the injury would not have occurred.”
The law (even tort law) exists to be understood both by the 0.2 per cent of Canadians who are lawyers and the 99.8 per cent who are not. The courts have skirted around the “but for” test for causation in tort (and certain contractual and statutory cases) for decades now, never realizing that “but” and “for” form an unlikely and unstable combination of an exceptionalist conjunction and a purposive particle, neither of which imparts a causal meaning.
Literally, the words form a hypothesis of the misfeasance being absent. Where the cause is a non-feasance, it gets even harder to visualize the double negative of the absent omission.
The classic application of the phrase, when expressing identification with the plight of an accident victim, “There but for the grace of God go I,” works because the benevolent causal force is as amorphous and exceptional as it gets. You can’t use the same logic by saying, “There but for Dr. X.’s delayed diagnosis go I,” because the phrase does not positively address the way in which the negligence led to the harm. (The phrase also fails to justify the identification between the victim and ‘I.’)
A practical approach need not be less technical or less thoughtful. The law framed in the process of cause-and-effect is more satisfactory because it tackles head on what the parties are disputing: whether one thing led to the other.
Last year, the chief justice had yet another opportunity to replace the “but for” expression with words that better describe how the wrongful act or omission led to the plaintiff’s damages. (We understand causation need not require scientific precision. Does that preclude our learning a thing or two from scientists about expressing cause-and-effect in more real-world terms?) In Clements v. Clements, she reiterated:
“Inherent in the phrase ‘but for’ is the requirement that the defendant’s negligence was necessary to bring about the injury ? in other words that the injury would not have occurred without the defendant’s negligence.”
If the purpose of the causation element in tort law is to help the court decide whether one thing led to another, why not say so? Even the principle of inevitable accident (the tail wagging the ‘but for’ dog) is accommodated by such an approach. If you are a tort lawyer and can see how the wording is the reason we have trouble understanding legal causation, pluck up the courage to say so the next time you’re visiting the “Big House.”
You walk among us
Curbing reliance on exceptionalist expressions will, in time, change the law for the better, both in your practice and in the profession. Working this way will require intellectual rigour and leadership in law of a kind we have not seen since this time last century. I bet at least one of you is up to the task.
It seems improbable that our American colleagues will ever again see the likes of the trio of great legal pragmatists, Oliver Wendell Holmes, Jr., Benjamin Cardozo, and Learned Hand. Canadians are fortunate. We are still waiting for our first one. It could be you. Someone out there within earshot of my voice is the brilliant, transformational lawyer who will change forever the way we practise law in Canada, and restore our law to a land of rules instead of a sea of exceptions. And construct a paragraph without the word “but!”