If you are like most of my colleagues, the title of this piece had you grinding your teeth. In the hopes that you might consider me a credible source and continue reading, allow me to state that I know the term "irregardless" is generally considered incorrect, convention saying that the correct term, "regardless," sufficiently conveys the same meaning. I recently shocked CEO, Mike Graham, by telling him that irregardless is now acceptable. Well, admittedly, I did not actually say that it is acceptable, but that I had been reading a book, Words on the Move, in which the author, John McWhorter, makes the case (and I am paraphrasing) that the English language is constantly changing, and words like irregardless may eventually make their way into the realm of acceptable speech, even in formal settings. His point (again, in my words) is that the function of language is to communicate, and the words we use should be judged on their ability to serve that function; if they enable us to understand each other clearly, then we have no other reason to judge any particular word as "good," "bad," "right," or "wrong." (For a much more in-depth and intelligent discussion of Words on the Move, please see this New York Times review by another writer whose work I greatly appreciate, Lynne Truss).
I find McWhorter's arguments intriguing and compelling as they relate to language in general. However, a couple of recent cases have served as a reminder that, as lawyers, we must be careful in using language and grammar in our documents - to an extent far beyond every day speech and writing. The first case that drew my attention was O'Connor v. Oakhurst Dairy, No. 16-1901 (1st Cir. 2017), in which an "Oxford comma" (sometimes called the "serial comma") or the lack thereof, was a deciding factor in a decision potentially resulting in millions of dollars in damages. Although the O'Connor case is not directly related to estate planning (rather, it was a case regarding overtime pay for dairy delivery workers), it is a lesson in the pitfalls of ambiguity when it comes to legal interpretation.
The second case of note involves an issue at the heart of estate planning. In Archer v. Moody, No. 14-15-00945-CV, 2017 Tex. App. (Tex. App., 14th Dist., December 14, 2017), the court analyzed a trust instrument that disposed of the remainder of the trust estate to the grantor's grandchildren, and the surviving issue of the grantor's deceased grandchildren, "in equal shares per stirpes." In the interest of brevity, I will not go into detail regarding the two possible interpretations of that phrase. Suffice it to say that one interpretation would have resulted in unequal shares passing to the grandchildren, whereas the other would have divided the trust property equally among them. The court ultimately found in favor of the unequal distribution, basing its interpretation on precedent, legal treatises, and the other dispositive provisions of the trust instrument. Based on the facts, as presented in the decision, that interpretation seems correct to me. However, others may disagree. Moreover, that may not have been the grantor's intent when he created the trust. The point is that we cannot know, with certainty, because the phrase, "in equal shares per stirpes," is inherently ambiguous, in that a disposition to a class of beneficiaries, per stirpes, may not be equal, depending on the structure of the family tree.
Both cases illustrate the need for precise language in drafting legal documents. Of course, this leads to two reasonable questions: First, if we accept the premise that language shifts, so terms like irregardless, which were once unheard of, are acceptable as long as we all understand each other, then why is such formality and precision required in legal drafting? Second, it is more and more common for clients to push for documents written in "plain language" that the clients can understand, so what is the lawyer to do?
To answer the first question, we can look to the Archer decision, in which the court relied upon the legal doctrine of interpreting a document by "its four corners," rather than looking to external sources for evidence of the settlor's intent. This doctrine distinguishes legal drafting from other forms of expression. The reason we allow change in our conversational language – even in formal contexts – is that we are able to use context to interpret the language of our conversational partner, so that we understand each other, even when a shift in language starts to creep in. As lawyers, we do not have that luxury. We only have the four corners of the document in which to accurately describe and effectuate the client's intent. If that intent is not clearly set forth in the document, we cannot rely on external sources for context, to interpret any ambiguities. Additionally, unlike other forms of writing or speech, which tend to be expressive, legal writing is performative, in that the language itself effectuates a result – meaning we need to be sure that result is the one intended!
That leads us to the second question: How to draft careful and precise legal documents that are "client-friendly." Nearly every estate planning attorney has had clients who, rightly, believe they should be able to understand the documents they are signing, and push back against the use of "legalese." However, that legalese is, in some instances, exactly the kind of precise language required in order to avoid ambiguity. This certainly creates a conundrum, but there are some techniques that a conscientious attorney may employ to draft documents that are precise, yet comprehensible to clients.
One way to address these seemingly conflicting concerns is through the use of definitions. Of course, this is not a new concept; nearly every legal document includes a set of defined terms referenced throughout the document. In general, these are a utilitarian short-cut – intended to avoid repetition, but not necessarily intended to make the document clearer. With a bit of creative drafting, defined terms can provide a way of using every-day language throughout a Will or trust, while allowing for precision through a carefully-drafted definition falling near the end of the document.
For example, the Contemporary Will included in the InterActive Legal (ILS) Wealth Transfer Planning program disposes of "Personal Effects," rather than "Tangible Personal Property." Most clients are more likely to understand and easily identify their Personal Effects, whereas the term Tangible Personal Property may prove confusing. Another example, from the ILS documents, is the use of the term "Estate Tax Exemption" in a formula gift to a credit shelter trust. Undoubtedly, estate tax concepts are complex, and require a bit of explanation. However, most clients concerned about estate tax are generally familiar with the concept of the estate tax exemption, and the use of that defined term makes the document easier to navigate. In each of these examples, clients will find a relatively familiar term in the dispositive provisions of their documents. Yet, those terms are carefully defined in a later section of the document, using more formal legal terms, so that there is no question as to intended meaning.
One other technique for generating documents that are precise, yet client-friendly, is careful placement of the provisions that are most important to the client. For example, in the ILS Contemporary Will, provisions naming Executors and Trustees are placed at the front of the document, so that the client does not have to thumb through all of the necessary (but, if we are honest, boring) boilerplate provisions to find that important information. In all ILS Wills and trusts, the dispositive provisions fall near the beginning of the document, for this same reason.
Unlike common contemporary speech and writing, which allows some fluidity, legal drafting is, by necessity, somewhat rigid. This poses a challenge for attorneys, who must find a balance between careful drafting and producing documents that are clear, concise, and comprehensible (notice the Oxford comma). This challenge may be met with a bit of creative drafting. Perhaps the techniques described above are, to an extent, the lawyer's way of changing with the times, when it comes to legal language.
Meet Vanessa L. Kanaga, J.D.
Director of Content Development, InterActive Legal
Vanessa joined InterActive Legal in April 2013 and serves as Director of Content Development. Ms. Kanaga received her J.D. from Cornell Law School, Magna Cum Laude, in 2006, and a B.A. in Philosophy from Wichita State University, with a minor in Music, in 2003. During law school, Vanessa was an Editor for the Cornell International Law Journal, and a Teaching Assistant for Terrorism and the Law. She also served as a Legal Intern in the City Attorney's Office in Ithaca, New York during the Summer of 2004. In 2011, Vanessa received an Advanced Professional Certificate from New York University School of Law.