PROVIDED, HOWEVER, THERE IS MORE THAN ONE (1) CORRECT WAY TO DRAFT
As the Real Estate group’s own Marty Schwartz has been advocating for 15 years, documents can be drafted in different styles. No particular style will earn you favor with a client or in litigation, but lawyers adopt different styles throughout the course of their careers. Often, through mentors or feedback, and it has been seemingly etched in stone, as Marty describes it, that lawyers must use legalese or be shunned. Without common parlance like repeating numbers not one (1) but two (2) times, or phrases like herein, witnesseth (which Word processor refuses to acknowledge as a word), and all manner of unintelligible phrases, Marty suspects that lawyers feel as though their work would not be recognized or valued as legal writing. It is this fear that gives way to clauses like the one found below, containing a 631-word sentence (not paragraph), that fails to present any meaning.
Through his “Lunch and Language” lessons, Marty has spent the last 15 years trying to combat this form of writing. One key lesson I’ve drawn from these events is that it really is possible, without sacrificing legality or meaning (or lack thereof) to rephrase these huge clauses into simple, English phrases that would make your high school professors proud. There is no real need to have repeated, sophisticated phrasing, or to bold and CAPITALIZE ENTIRE CLAUSES, unless, as Marty says, you want to have people take two aspirin before they read your writing.
One of the trickier parts of undoing this style of writing is how engrained in legal culture it is, becoming almost impossible to break. It is synonymous with being lawyerly, even throughout the Firm, and the type of writing below is perfectly acceptable. Several attorneys I have spoken with have heard the speech before, urging them to write in plain English and leave behind the jargon, but few if any do. While you would certainly not submit the clause below as a writing assignment at any academic level, it is acceptable and even encouraged in the legal community. When you have co-counsel going over 80-page documents to change the number formatting, or sending you back documents changing the style to a more traditional one, it’s a tough sell to explain to a client how that adds anything to their document.
It is astonishing how this has come to be, and how easily it could theoretically be resolved, but the problem seems systemic. We are taught to “think and write like a lawyer” in law school, whatever that means. And as many have noted, these early teachings are perpetuated throughout one’s career: through feedback, common forms used and shared, and general encouragement toward that traditional way of writing. While this “traditional” form of writing will likely remain in vogue for generations to come, I hope that through advocacy and the continued adoption of plain English drafting, we can all read and understand more construction clauses and consumer terms of service, together.
Indemnity. BORROWER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS LENDER (AND FOR PURPOSES OF THIS SECTION 4.30, LENDER SHALL INCLUDE THE INITIAL LENDER, ITS AFFILIATES, SUCCESSORS AND ASSIGNS, AND THEIR RESPECTIVE OFFICERS AND DIRECTORS), EACH LENDER, CASUALTY CONSULTANT, SERVICER, THEIR DIRECT OR INDIRECT CONSTITUENT OWNERS, EACH OF THEIR RESPECTIVE AFFILIATES, AND EACH OF THEIR RESPECTIVE SUCCESSORS, ASSIGNS, EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, SHAREHOLDERS AND MEMBERS (EACH, AN “INDEMNIFIED PARTY” AND TOGETHER, THE “INDEMNIFIED PARTIES”) FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES (BUT EXCLUDING SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES; PROVIDED, HOWEVER, IF AND TO THE EXTENT THAT ANY INDEMNIFIED PARTY SHALL HAVE SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ASSERTED AGAINST IT AND/OR BE REQUIRED TO PAY ANY AMOUNT TO ANY THIRD PARTY ON ACCOUNT OF SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES NOT ARISING BY REASON OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH PARTY, THEN SUCH AMOUNT SHALL BE DEEMED TO CONSTITUTE ACTUAL DAMAGES INCURRED BY SUCH INDEMNIFIED PARTY), PENALTIES, ACTIONS, JUDGMENTS, SUITS, CLAIMS, COSTS, ACTUAL EXPENSES AND DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER (INCLUDING REASONABLE FEES AND DISBURSEMENTS OF OUTSIDE COUNSEL FOR LENDER IN CONNECTION WITH ANY ADMINISTRATIVE OR JUDICIAL PROCEEDING COMMENCED OR THREATENED, WHETHER OR NOT SUCH INDEMNIFIED PARTY SHALL BE DESIGNATED A PARTY THERETO), THAT MAY BE IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST SUCH INDEMNIFIED PARTY IN ANY MANNER TO THE EXTENT RELATING TO OR ARISING OUT OF (I) ANY BREACH BY BORROWER OF ITS OBLIGATIONS UNDER, OR ANY MISREPRESENTATION BY BORROWER CONTAINED IN, THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS; (II) THE USE OR INTENDED USE OF THE PROCEEDS OF THE LOAN; (III) ANY INFORMATION PROVIDED BY OR ON BEHALF OF BORROWER; (IV) OWNERSHIP OF THE MORTGAGE, THE PROPERTY, OR ANY INTEREST IN THE FOREGOING, OR RECEIPT OF ANY NET SALES PROCEEDS, RENTS OR OTHER GROSS REVENUE (INCLUDING DUE TO ANY INCREASED COSTS OR OTHER TAXES); (V) ANY ACCIDENT, INJURY TO OR DEATH OF PERSONS OR LOSS OF OR DAMAGE TO PROPERTY OCCURRING IN, ON OR ABOUT THE PROPERTY OR ON THE ADJOINING SIDEWALKS, CURBS, ADJACENT PROPERTY OR ADJACENT PARKING AREAS, STREETS OR WAYS; (VI) ANY USE, NONUSE OR CONDITION IN, ON OR ABOUT THE PROPERTY OR ON ADJOINING SIDEWALKS, CURBS, ADJACENT PROPERTY OR ADJACENT PARKING AREAS, STREETS OR WAYS; (VII) PERFORMANCE OF ANY LABOR OR SERVICES OR THE FURNISHING OF ANY MATERIALS OR OTHER PROPERTY BY OR ON BEHALF OF ANY BORROWER PARTY IN RESPECT OF THE PROPERTY; (VIII) ANY FAILURE OF THE PROPERTY TO COMPLY WITH ANY LEGAL REQUIREMENT; (IX) ANY CLAIM BY BROKERS, FINDERS OR SIMILAR PERSONS CLAIMING TO BE ENTITLED TO A COMMISSION IN CONNECTION WITH ANY LEASE, SALE OF AN ELEMENT OR OTHER TRANSACTION INVOLVING THE PROPERTY OR ANY PART THEREOF, OR ANY LIABILITY ASSERTED AGAINST LENDER WITH RESPECT THERETO; (X) THE CLAIMS OF ANY LESSEE OF ANY PORTION OF THE PROPERTY OR ANY PERSON ACTING THROUGH OR UNDER ANY LESSEE OR OTHERWISE ARISING UNDER OR AS A CONSEQUENCE OF ANY LEASE; (XI) ANY AND ALL CLAIMS OF ANY RESIDENTIAL UNIT OWNER OR PROPOSED PURCHASER OR LESSEE OF A RESIDENTIAL UNIT OR ANY PERSON ACTING THROUGH OR UNDER ANY SUCH OWNER OR PROPOSED PURCHASER OR LESSEE, AND (XII) AND ANY FAILURE TO PAY ANY PERMIT AND APPLICATION FEES, VIOLATIONS, FINES AND/OR ANY OTHER PENALTY INCURRED IN CONNECTION WITH OWNERSHIP, USE, LEASING AND/OR OPERATION OF THE PROPERTY (COLLECTIVELY, THE “INDEMNIFIED LIABILITIES”), INCLUDING, WITHOUT LIMITATION, ANY AND ALL INDEMNIFIED LIABILITIES ARISING FROM THE NEGLIGENCE OF AN INDEMNIFIED PARTY; PROVIDED, HOWEVER, THAT BORROWER SHALL NOT HAVE ANY OBLIGATION TO AN INDEMNIFIED PARTY HEREUNDER TO THE EXTENT THAT SUCH INDEMNIFIED LIABILITIES ARISE FROM THE GROSS NEGLIGENCE, ILLEGAL ACTS, FRAUD OR WILLFUL MISCONDUCT OF ANY INDEMNIFIED PARTY AS DETERMINED BY A FINAL NON-APPEALABLE JUDGMENT OF A COURT OF COMPETENT JURISDICTION WHICH SHALL ALSO HAVE THE AUTHORITY TO AWARD LEGAL FEES AGAINST THE INDEMNIFIED PARTY. TO THE EXTENT THAT THE UNDERTAKING TO INDEMNIFY, DEFEND AND HOLD HARMLESS SET FORTH IN THE PRECEDING SENTENCE MAY BE UNENFORCEABLE BECAUSE IT VIOLATES ANY LAW OR PUBLIC POLICY, BORROWER SHALL PAY THE MAXIMUM PORTION THAT IT IS PERMITTED TO PAY AND SATISFY UNDER APPLICABLE LEGAL REQUIREMENTS TO THE PAYMENT AND SATISFACTION OF ALL INDEMNIFIED LIABILITIES INCURRED BY EACH INDEMNIFIED PARTY.