Notes from the Desk of Cynthia Lifson: Crafting Language



As I write this paragraph, I am taking a break from drafting amendments to a bill that has been introduced in the Maryland General Assembly on behalf of one of my legislative clients.  The drafting is tricky because the amendments are responding to new information gleaned through my interactions with legislators followed by additional communications with my client.  The goal of this exercise is to push the law forward so that the problem presented by the original bill introduced in the General Assembly is sufficiently addressed and at the same time to handle the objections articulated by opponents of the bill adequately so that the bill can pass the General Assembly.

Crafting legal language is tedious work and requires adherence to specific stylistic conventions.  Translating thoughts into language that will be interpreted by our courts and that will ultimately affect the lives of our citizens can be difficult.  This effort is one of the most important tasks performed by attorneys and it applies not only to legislative advocacy, but to nearly all of the work that we do with respect to resolving disputes and creating documents that reflect such resolutions.

As demonstrated in the Baker case discussed in the above article, courts scrutinize language contained in a contracts carefully.   To avoid ambiguity in a contract, the provisions of a contract must be expressed clearly.  A written agreement is not ambiguous merely because two parties in litigation offer different interpretations of its language, but will be found to be ambiguous if, when read by a reasonably prudent person, it is susceptible to more than one meaning.

To avoid difficulties in the interpretation of a contract, it is good practice to spell out the meaning of each element in the contract.  For example in a divorce negotiation, if a marital settlement requires the parties to pay for “minor” repairs of a marital home before it is placed on the market for sale, it is prudent to define the meaning of “minor.”  We can easily see that one person’s view of a minor repairs may differ from another person’s view.  Better to spell it out; it is worth the time and effort to craft legal language that is clear and expresses the mutual intent of the parties.