A Blue Peter guide to writing like a Lawyer

It takes years of study and practice to write properly florid legal text. While celebrity lawyers like Stanley Fish have taken ill-advisedly to the presses to entreaty us to write all our prose the same way, no-one actually enjoys reading legal text: not even the curmudgeon who has taken such pleasure in writing it. Construing a contract should not be a boldily pleasure but an act of ascetic sufferance the reward for which comes in the hereafter^[1]. Legal counsel does this so the client doesn't have to.

So here is a rare peak inside the fevered mind of a deal lawyer. Take a simple sentence conveying a simple proposition. The less content the better. For example:

Unless we hear from you before the end of the week, we’ll assume you are happy with the termsheet.

Now imagine you are the deal lawyer. Your client asks you to “just have a quick look at this statement to make sure this is ok”. Here is your chance.

The first job is to depersonalise. Law is a formal, not colloquial. It is business. We should not countenance a familiar “we” and “you”: this is a commercial contract not a family reunion, or an outreach centre. Parties should address each other as if they were unacquainted third persons.

Unless the vendor hears from the purchaser before the end of the week, the purchaser will assume the vendor is happy with the termsheet.

But why have easy-to-follow active tenses, when we can depersonalise things further, and elongate with denser constructions? The passive tense is your friend. (If you are a commercial lawyer, you have to take friends wherever you can find them).

Unless the vendor is advised by the purchaser before the end of the week, the vendor will be assumed by the purchaser to be happy with the termsheet.

This all still seems a little loosey goosey. Commercial lawyers have no truck with loose geese. It is time to start layering on detail. This is a painstaking job, and should be done in stages. First, be infinitely clear about the times, dates, deadlines.

Unless the vendor is advised by the purchaser on or before the close of business in London on Friday 22 March 2013, the vendor will be assumed by the purchaser to be happy with the termsheet.

I said infinitely clear. So don’t forget contingencies! What, for example, if 22 March is a public holiday?

Unless the vendor is advised by the purchaser on or before the close of business in London on Friday 22 March 2013 (or, if such date is not a business day in London, the close of business on the immediately following day that is a business day in London), the vendor will be assumed by the purchaser to be happy with the termsheet.

Infinitely clear, I said: We have not yet provided what should happen if the immediately following business day falls in the following calendar month. Perhaps there might be some adverse tax consesquences. You might have to book revenue in a different quarter. Who knows? Better be safe than sorry. After all, as deal counsel you can’t rule out a week and a half of public holidays being spontaneously declared (a Royal Wedding for example), or war suddenly breaking out. And you can be sure, if war should break out between now and the end of the week, the very first thing your client will do is sue your ass for forgetting to think about it. Sure as eggs. So be careful.

Unless the vendor is advised by the purchaser on or before the close of business in London on Friday 22 March 2013 (or, if such date is not a business day in London, the close of business on the immediately following day that is a business day in London, provided that if such immediately following Business Day would not fall in the calendar month of March, such date will be deemed to be the business day in London immediately prior to Friday 22 March), the vendor will be assumed by the purchaser to be happy with the termsheet.

As we inspect the detail, note that some of this original language is a bit sloppy. What is meant by “happy”, exactly? And what if our napkin contradicts the legal contracts we’re going to draw up?

Unless the vendor is advised by the purchaser on or before the close of business in London on Friday 22 March 2013 (or, if such date is not a business day in London, the close of business on the immediately following day that is a business day in London, provided that if such immediately following Business Day would not fall in the calendar month of March, such date will be deemed to be the business day in London immediately prior to Friday 22 March), the vendor will be assumed by the purchaser to have consented to the material economic terms of the transaction, as set out in the term sheet which is attached to this letter as an annex, such consent always to be subject to the legally binding terms of the transaction as shall be agreed between the parties on or before the closing date.

It still isn’t clear who we’re talking about. Just in case anyone is in any doubt, can we say? With infinite certainty?

Unless Joe Bloggs (such person, together with its successors and assigns, the “Vendor”, which expression will, unless the context requires otherwise, include reference to such person’s directors and employees (“Personnel”) but will exclude reference to consolidated and non-consolidated affiliates of such person, howsoever described (“Affiliates”)) is advised by John Doe (such person, together with its successors and assigns, the “Purchaser”, which expression will, unless the context requires otherwise, include reference to such person’s Personnel but will exclude reference to such person’s Affiliates) on or before the close of business in London on Friday 22 March 2013 (or, if such date is not a business day in London, the close of business on the immediately following day that is a business day in London, provided that if such immediately following Business Day would not fall in the calendar month of March, such date will be deemed to be the business day in London immediately prior to Friday 22 March), the Vendor will be assumed by the Purchaser to have consented to the material economic terms of the transaction, as set out in the term sheet which is attached to this letter as an annex, such consent always to be subject to the legally binding terms of the final transaction documents as shall be agreed between the parties on or before the closing date.

But hold on: what if my client agrees to change the deal in the mean time? Or events overtake us?

Subject to any subsequent mutually agreed amendment to the terms hereof between the parties, such amendments if made orally to be subsequently confirmed by the parties in writing within a reasonable period of time (provided that any failure to confirm such oral amendment shall not operate to vitiate such amendment) or any other written agreement between the parties, whether or not expressed as an amendment hereto, which is intended to modify the terms of this agreement, unless Joe Bloggs (such person, together with its successors and assigns, the “Vendor”, which expression will, unless the context requires otherwise, include reference to such person’s directors and employees (“Personnel”) but will exclude reference to consolidated and non-consolidated affiliates of such person, howsoever described (“Affiliates”)) is advised by John Doe (such person, together with its successors and assigns, the “Purchaser”, which expression will, unless the context requires otherwise, include reference to such person’s Personnel but will exclude reference to such person’s Affiliates) on or before the close of business in London on Friday 22 March 2013 (or, if such date is not a business day in London, the close of business on the immediately following day that is a business day in London, provided that if such immediately following Business Day would not fall in the calendar month of March, such date will be deemed to be the business day in London immediately prior to Friday 22 March), the Vendor will be assumed by the Purchaser to have consented to the material economic terms of the transaction, as set out in the term sheet which is attached to this letter as an annex, such consent always to be subject to the legally binding terms of the final transaction documents as shall be agreed between the parties on or before the closing date.

The problem is, now, that this is starting to look like a pretty onerous sort of obligation, so we need to be extra careful to protect your client’s interest. How do you know that your won’t be held to a technical provision with malicious intent?

Subject to any subsequent mutually agreed amendment to the terms hereof between the parties, such amendments if made orally to be subsequently confirmed by the parties in writing within a reasonable period of time (the reasonableness of such period as determined by the parties acting in good faith and in a commercially reasonable manner and provided that any reasonable failure to confirm such oral amendment shall not operate to vitiate such amendment) or any other written agreement between the parties, whether or not expressed as an amendment hereto, which is intended to modify the terms of this agreement, unless Joe Bloggs (such person, together with its successors and assigns, the “Vendor”, which expression will, unless the context requires otherwise, include reference to such person’s directors and employees (“Personnel”) but will exclude reference to consolidated and non-consolidated affiliates of such person, howsoever described (“Affiliates”)) is advised by John Doe (such person, together with its successors and assigns, the “Purchaser”, which expression will, unless the context requires otherwise, include reference to such person’s Personnel but will exclude reference to such person’s Affiliates) on or before the close of business in London on Friday 22 March 2013 (or, if such date is not a business day in London, the close of business on the immediately following day that is a business day in London, provided that if such immediately following Business Day would not fall in the calendar month of March, such date will be deemed to be the business day in London immediately prior to Friday 22 March), such Purchaser acting in good faith and in a commercially reasonable manner, the Vendor will be assumed by the Purchaser to have consented to the material economic terms of the transaction, as set out in the term sheet which is attached to this letter as an annex, such consent always to be subject to the legally binding terms of the final transaction documents as shall be agreed between the parties on or before the closing date.

Good faith. I like that. But wait a minute: if in acting in good faith that doesn't mean my client is somehow responsible to to its counterpart as some sort of fiduciary does it? Best be sure by using the great smart bomb in the lawyer’s armoury. For The Avoidance Of Doubt. No five words in the legal lexicon are more apt to create doubt where none before existed.

Subject to any subsequent mutually agreed amendment to the terms hereof between the parties, such amendments if made orally to be subsequently confirmed by the parties in writing within a reasonable period of time (the reasonableness of such period as determined by the parties acting in good faith and in a commercially reasonable manner provided that any reasonable failure to confirm such oral amendment shall not operate to vitiate such amendment) or any other written agreement between the parties, whether or not expressed as an amendment hereto, which is intended to modify the terms of this agreement, Unless Joe Bloggs (such person, together with its successors and assigns, the “Vendor”, which expression will, unless the context requires otherwise, include reference to such person’s directors and employees (“Personnel”) but will exclude reference to consolidated and non-consolidated affiliates of such person, howsoever described (“Affiliates”)) is advised by John Doe (such person, together with its successors and assigns, the “Purchaser”, which expression will, unless the context requires otherwise, include reference to such person’s Personnel but will exclude reference to such person’s Affiliates) on or before the close of business in London on Friday 22 March 2013 (or, if such date is not a business day in London, the close of business on the immediately following day that is a business day in London, provided that if such immediately following Business Day would not fall in the calendar month of March, such date will be deemed to be the business day in London immediately prior to Friday 22 March), such Purchaser acting in good faith and in a commercially reasonable manner, the Vendor will be assumed by the Purchaser to have consented to the material economic terms of the transaction, as set out in the term sheet which is attached to this letter as an annex, such consent always to be subject to the legally binding terms of the final transaction documents as shall be agreed between the parties on or before the closing date. For the avoidance of doubt, the parties enter this Agreement as arms’ length contractual counterparties, at what they consider to be market prices, for valuable consideration and without notice of any interests to the contrary and nothing in this Agreement will constitute or be construed as, or be deemed to constitute or be construed as, a joint venture or partnership between the Vendor and the Purchaser. Neither the Purchaser nor the Vendor shall assume or be deemed to assume any fiduciary responsibilities or other analogous obligations of a trust or agency nature, and each parties hereby acknowledges that it has obtained such legal advice as it as considered necessary or appropriate to assess the suitability and/or appropriateness of entering into this transaction and expressly disclaims any reliance on the other, or any responsibility for advising the other, as to any risks, economic, legal, regulatory, reputational or otherwise, which may arise (whether or not such risks to arise) as a result of the contemplation of the transaction contemplated herein.

And so our 19 word napkin scribble has evolved into a 500 word behemoth. And we haven't yet started inserting indemnities, let alone a governing law clause. It requires no particular acumen, but just sheer bloody mindedness, to carry on, as we lawyers like to say, ad infinitum. Ad nauseam, even.

---

[1] i.e., when the bill becomes due.

Vanquishing magic by sleight of hand

Douglas Hofstadter’s essay on the incompleteness of “loopy” logical systems starts out brightly, but makes a disappointing and strangely unimaginative resort to reductionism in the end. Pity.

Philosophy, to those who are disdainful of it, is a sucker for a priori sleights of hand: purely logical arguments which do not rely for grip on empirical reality, but purport to explain it all the same: chestnuts like “cogito ergo sum”, from which Descartes concluded a necessary distinction between a non-material soul and the rest of the world.

Douglas Hofstadter is not a philosopher (though he’s friends with one), and in I am a Strange Loop he is mightily disdainful of the discipline and its weakness for cute logical constructions. All of metaphysics is so much bunk, says Hofstadter, and he sets out to demonstrate this using the power of mathematics and in particular the fashionable power of Gödel’s incompleteness theory.

Observers may pause and reflect on an irony at once: Hofstadter’s method - derived a priori from the pure logical structure of mathematics - looks suspiciously like those tricksy metaphysical musings on which he heaps derision. As his book proceeds this irony only sharpens.

But I’m getting ahead of myself, for I started out enjoying this book immensely. Until about halfway I thought I’d award it five stars - but then found it increasingly unconvincing and glib, notably at the point where Hofstadter leaves his (absolutely fascinating) mathematical theorising behind and begins applying it. He believes that from purely logical contortion one may derive a coherent account of consciousness (a purely physical phenomenon) robust enough to bat away any philosophical objections, dualist or otherwise.

Note, with another irony, his industry here: to express the physical parameters of a material thing - a brain - in terms of purely non-material apparatus (a conceptual language). In the early stages, Professor Hofstadter brushes aside reductionist objections to his scheme which is, by definition, an emergent property of, and therefore unobservable in, the interactions of specific nerves and neurons. Yet late in his book he is at great pains to say that that same material thing cannot, by dint of the laws of physics, be pushed around by a non material thing (being a soul), and that configurations of electrons correspond directly to particular conscious states in what seems a rigorously deterministic way (Hofstadter brusquely dismisses conjectures that your red might not be the same as mine). Without warning, in his closing pages, Hofstadter seems to declare himself a behaviourist. Given the excellent and enlightening work of his early chapters, this comes as a surprise and a disappointment to say the least.

Hofstadter’s exposition of Gödel’s theory is excellent and its application in the idea of the “Strange Loop” is fascinating. He spends much of the opening chapters grounding this odd notion, which he says is the key to understanding consciousness as a non-mystical, non-dualistic, scientifically respectable and physically explicable phenomenon. His insight is to root consciousness not in the physical manifestation of the brain, but in the patterns and symbols represented within it. This, I think, is all he needs to establish to win his primary argument, namely that Artificial Intelligence is a valid proposition. But he is obliged to go on because, like Darwin’s Dangerous Idea, the Strange Loop threatens to operate like a universal acid and cut through many cherished and well-established ideas. Alas, some of these ideas seem to be ones Douglas Hofstadter is not quite ready to let go. Scientific realism, for example.

The implication of the Strange Loop, which I don’t think Hofstadter denies, is that a string of symbols, provided it is sufficiently complex (and “loopy”) can be a substrate for a consciousness. That is a Neat Idea (though I’m not persuaded it’s correct: Hofstadter’s support for it is only conceptual, and involves little more than hand-waving and appeals to open-mindedness.

“Perhaps, rather than slamming the door on mysticism, Hofstadter has unwittingly blown it wide open. After all, why stop at human consciousness as a complex system?” 

But all the same, some strange loops began to occur to me here. Perhaps rather than slamming the door on mysticism, Douglas Hofstadter has unwittingly blown it wide open. After all, why stop at human consciousness as a complex system? Conceptually, perhaps, one might be able to construct a string of symbols representing God. Would it even need a substrate? Might the fact that it is conceptually possible mean that God therefore exists?

I am being mendacious, I confess. But herein lie the dangers (or irritations) of tricksy a priori contortions. However, Professor Hofstadter shouldn’t complain: he started it.

Less provocatively, perhaps a community of interacting individuals, like a city - after all, a more complex system than a single one, QED - might also be conscious. Perhaps there are all sorts of consciousnesses which we can’t see precisely because they emerge at a more abstract level than the one we occupy.

This might seem far-fetched, but the leap of faith it requires isn’t materially bigger than the one Hofstadter explicitly requires us to make. He sees the power of Gödel’s insight being that symbolic systems of sufficient complexity (“languages” to you and me) can operate on multiple levels, and if they can be made to reference themselves, the scope for endless fractalising feedback loops is infinite. The same door that opens the way to consciousness seems to let all sorts of less appealing apparitions into the room: God, higher levels of consciousness and sentient pieces of paper bootstrap themselves into existence also.

This seems to be a Strange Loop Too Far, and as a result we find Hofstadter ultimately embracing the reductionism of which he was initially so dismissive, veering violently towards determinism and concluding with a behavioural flourish that there is no consciousness, no free will, and no alternative way of experiencing red. Ultimately he asserts a binary option: unacceptable dualism with all the fairies, spirits, spooks and logical lacunae it implies, or a pretty brutal form of determinist materialism.

There’s yet another irony in all this, for he has repeatedly scorned Bertrand Russell’s failure to see the implications of his own formal language, while apparently making a comparable failure to understand the implications of his own model. Strange Loops allow - guarantee, in fact - multiple meanings via analogy and metaphors, and provide no means of adjudicating between them. They vitiate the idea of transcendental truth which Hofstadter seems suddenly so keen on. The option isn’t binary at all: rather, it’s a silly question.

In essence, all interpretations are metaphorical; even the “literal” ones. Neuroscience, with all its gluons, neurons and so on, is just one more metaphor which we might use to understand an aspect of our world. It will tell us much about the brain, but very little about consciousness, seeing as the two operate on quite different levels of abstraction.

To the extent, therefore, that Douglas Hofstadter concludes that the self is that is an illusion his is a wholly useless conclusion. As he acknowledges, “we” are doomed to “see” the world in terms of “selves”; an a priori sleight-of-hand, no matter how cleverly constructed, which tells us that we’re wrong about that (and that we’re not actually here at all!) does us no good at all. Neurons, gluons and strange loops have their place - in many places this is a fascinating book, after all - but they won’t give us any purchase on this debate.

Foghorns, mist and grammar

But if each of us can see only our own segment of blackly shining asphalt, how can we extrapolate that to a common picture of the world to share with our fellow travellers? We need signposts, foghorns, landmarks, lighthouses – a map, in short – by which we can navigate the terrain.

Some like Steven Pinker see evidence for a lingua franca: a common grammar shared by all human languages which is pre-wired by evolution into the cognitive faculties all human beings. On this view language – and therefore the particular rendition of the universe it affords – is as much a product of our biology as our arms or eyes, and through the office of this grammar there is a universal means of perceiving the world. In other words, after all, there is a single common map by which we do orient ourselves and avoid colliding with each other, and by reference to which all uncertainties and misunderstandings can be resolved.

It is courtesy of just this innate universal grammar that we can “shape events in each other’s brains with exquisite precision”.

As we pass the 200^th anniversary of Charles Darwin’s birth, one might remark in the margin at the huge variety of social, political and philosophical literature which claims Darwin’s intellectual antecedence. Some might see this as evidence of the rude health in which Darwin’s Dangerous Idea finds itself a couple of centuries on – universal acid indeed, as Daniel Dennett termed it. Others might wonder whether such universal acidity is symptomatic of weakness in Darwin’s programme: a theory which can be all things to all people ends up being nothing to anyone; there’s a point where flexibility needed for multiple applications tips into ambiguity and incoherence.

For me, Pinker’s account or universal grammar, Darwin-certified or not, leaves something out. Even if it were sufficiently, exquisitely, precise as to permit only a single literal interpretation for a given statement (as far as I can tell, it isn’t), there would still be an infinite universe of possible figurative interpretations of the same statement, and grammar – the rules for constructing meanings from words – cannot help us with our vocabulary. When Lou Reed tells us, at the end of his exquisitely miserable single Perfect Day, “You’re going to reap just what you sow”, grammar is no help in determining whether or not he was talking about gardening, and whether it really was a “perfect day”, or perhaps there was just a little bit of irony interlaced. 

But – and here’s the thing – the ambiguity conferred by the possibility of metaphor is not an obstacle only for our poets and novelists. Exactly the same ambiguity, the susceptibility to figurative meaning, infests every statement, however strictly empirical or even mathematical. Indeed, that was the very problem with Bertrand Russell’s Principia Mathematica, so deftly exposed by Goedel. This is significant, because it suggests there is no difference between literature and science might not be as ontological as scientists tend to suppose.

So how are we meant to identify each time, from the infinite set of possible meanings, the right one? Like any natural language, English is no more and no less than a formal logical system, like Mathematics. In these technologically revolutionary times we are confronted, as never before, by the fact that English is a numeric system: Every character can in theory be and, for the purpose of electronic processing of data, is assigned its own digit – the ASCII code. A computer can only understand text by reducing it to numbers.

And in the same way that a mathematical system is, English is (non-viciously) circular (you can only validly define an English expression in terms of other English expressions: evidence: the Shorter Oxford Dictionary, a document which defines and explains the set of “every word in the English language” wholly in terms of words taken from that very same set).

Ultimately, the meanings we hang on the intricate latticework of words we create each day comes from beyond the formal set of symbols which comprise the English language. “Meaning in the world” when we apply our own respective vocabularies to the formal symbols in the language. Notwithstanding the Shorter Oxford Dictionary, the set of formal symbols in practical use in any single person’s language will almost certainly be unique, and the precise meanings which that person assigns to that set of symbols, being completely functional on that person’s individual life history, definitely will be.