To: Dr. Michael DePalma From: Kelsey Jarzombek
Subject: Investigative Report on Business Contract Law: Writing for the Common Man Date: October 26, 2011
The purpose of this report is to present research findings on the nature and type of writing that occurs in composing legal business contracts.
Introduction and Objectives
This report examines and analyzes research gathered on writing business contracts within the professional legal field. Such contracts are composed by business attorneys and feature a unique rhetorical situation and clearly-defined textual patterns. The aim of my research is to evaluate these aspects of legal contracts and gain a general sense of both the discourse community of business contract writing and the considerations and preparations attorneys must make in drafting them. This report details the kind of work done by legal business professionals on a daily basis and exemplifies significant characteristics of their writing unknown to most outside of the field. My research will prove beneficial to those contemplating law school, specifically those interested in the business facet of legal studies, by furnishing insight about the expected writing process involved. It will shed light on contextual considerations that must be made and highlight the logic behind construction of legal contracts.
Research Methods
A variety of methods were employed to garner information on writing legal business contracts.
To begin, I did secondary research online and found three informative articles pertaining to different aspects of the genre. I undertook such research in order to gain a foundation for
understanding the basics of creating a contract. I sought articles that did a thorough job of clearly articulating the essential steps of writing and signing a contract, as well as clarifying what tasks each party is expected to perform, without inundating the reader with a barrage of overwhelming legal jargon. I also specifically searched for information that focused on ways for the attorney composing the document to intentionally cater it to the rhetorical situation in which it will be used.
After having established fundamental knowledge about legal business contracts, I conducted an interview with James K. Lowry, a corporate business attorney who is a shareholder in Langley &
Banack, a prominent San-Antonio-based law firm. He earned his Juris Doctorate from Columbia University, graduating with honors in 1983. He represents a wide variety of clientele, including
private corporations and public school districts, in his general practice areas of business services, corporate law, mergers and acquisitions, real estate, transactional, and school law.
I talked with Mr. Lowry for two hours by phone, and he gave me a detailed description of each component of the business contracts he constructs. I took notes on his explanation of his everyday duties, legal definitions that must be understood to create a contract, and the general structure of the documents. He also provided me a thorough description of the rhetorical situation for contract law and gave examples of what results could arise if such situation is not properly addressed. Finally, we discussed his experience attending Columbia at length. (See interview guide for further information.)
From Mr. Lowry, I was able to obtain three legal contracts for primary research analysis. The first sample was an employment agreement for a Texas company written by Mr. Lowry. The second sample was a hardware-software purchase agreement between a school district an outside public vendor, also written by Mr. Lowry. Finally, he referred me to a professional legal website to access an example of an international product purchase agreement. I directly analyzed these primary resources to gain an extensive understanding of the way contracts are commonly structured and the writing style that is regularly implemented.
However, there were limitations to my research. Because I have not attended law school, there were some concepts related to composing a business contract that I was unable to thoroughly grasp, such as all types of possible mediation that must be integrated into contracts to forestall litigation. Also, confidentiality concerns prevented me from reproducing these documents and attaching them to my report. The inherent need for privacy in certain agreements between companies aligns with the legal nature of these texts and can be determined through specific context on a situation-by-situation basis.
Discussion of Findings/Results
The most significant insight I gained from my research was an in-depth analysis of the audience and purpose legal business contracts are intended to serve, which in turn affects the attorney’s writing style and composition. Unlike legal appellant briefs, which are written using highly technical jargon intended to be read by a judge or court justices, business contracts are designed to plainly articulate the specificities of what each party is expected to give and receive from the agreement. They are meant to be read and signed by professionals outside of the legal field, thus attorneys must write them as clearly and directly as possible so no ambiguities that could later be disputed are present.
Mr. Lowry explained that he writes contracts in a way so the common man can clearly
understand them. This is not only due to the fact that his primary audience is not composed of legal professionals, but also because of a potential secondary audience; if a dispute between the signing parties does later arise, the drafting attorney would be forced to present and defend his contract before a twelve-person jury in a state court. Thus, writing with clarity and in plain English is critical to ensure understanding so a jury with no legal background can decide an
accurate verdict. A detached style and active verbs should be implemented so that the facts are easy to identify.
For example, there is a section in the employee contract that discusses requirements to receive commission. It states: “No commission shall be earned on any sale unless Employee properly enters the sale into Company’s Keystroke computer system with the correct salesman number.
For this purpose, Employee shall use a user number assigned by Company for each Arts and Craft Customer sale, and Employee shall use a different user number assigned by Company for each Butterfly Customer sale.” While Mr. Lowry could have constructed this process in a wordy manner, he used simple sentence structure, active verbs, and plain word choice to make it readily apparent to anyone reviewing the document what must be done to earn commission.
Furthermore, the three sample documents were all structured around definitions. The software agreement contract between a public school district and outside vendor begins by presenting a brief background of the two parties and their relationship, and follows with a section of terms that states “each defined term capitalized below has the meaning ascribed to that term in this Section 1 when used throughout this Agreement.” Including this section is uniquely critical to understanding the entire document, as the attorney must ensure readers potentially unfamiliar with certain terms will have a place a reference with which to dismantle any potential confusion.
After the critically important definitions section, contracts are then generally followed by a clear statement of who the parties are and what considerations each is given from the other. A
remedies portion comes next, which describes what remedies the buyer will have if the seller doesn’t perform agreed upon duties, and vice-versa. Indemnification provisions align with the remedies section, and lead into warranties and representation declarations, which detail the time period in which the seller has to respond to a software problem. A termination section states how long the agreement will be legally-binding in court, and contracts conclude with an assertion of which state law will govern and which venue will be used if litigation eventually arises.
There is also a statement of the final basis of bargain. In the software agreement, this section offers a sense of finality in reading: “You acknowledge that we have set our fees and entered into this agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth in this agreement, and that the same form an essential basis of the bargain between the parties.” This section embodies a straightforward way of summarizing the nature and purpose of the document.
Although employment contracts differ slightly in that they contain less sections dealing with dispute resolution and no mention of product agreement, they reflect the same writing style as all contracts in general. Because attorneys want to avoid going to court over what the wording in the contracts mean, detailed attention to grammar is necessary. If complex language is introduced, simple definitions should accompany it. Shorter sentences that allow the reader to continuously confirm thoughts and provisions should be implemented, as should simple word choice.
Furthermore, business contracts are not a type of writing that invites a use of pathos. Appeals to ethos and logos appropriately reflect the purpose of the genre: to construct a logical agreement that fairly satisfies the needs of both parties. It is also imperative that content is restricted to only the necessities of the agreement; any superfluity or personal voice would simply serve to cloud the defined provisions.
During my conversation with Mr. Lowry, and throughout my general research, I learned writing is a huge component of an attorney’s job, regardless of his or her specialization. It is also important to recognize that strict adherence to the rhetorical situation must outweigh both personal preferences in style and tone and the tendency to implement elevated legal language.
The attorney is acting as an unbiased representative and must maintain a professional demeanor throughout the document.
Conclusions
Paradoxically, attorneys must have great legal knowledge to effectively represent their clients in constructing successful contracts, but they must write them in a way so that one with no legal background can adequately grasp the basic terms of agreement. It is also important to dispel the misconception that attorneys spend most of their time arguing in court. In reality, the majority of attorneys (other than criminal attorneys) spend a great deal of their time carefully wording documents for the purpose of avoiding going to court at all. They instead want to construct efficient agreements to satisfy both parties so that no litigation is necessary.
As a result of my professional development research, my intended focus area within the field of legal studies has changed. While I was originally more interested in pursuing constitutional law, I’ve come to realize that business law would be a highly-profitable career better suited to my strengths in writing and ability to reason logically. I plan to study for the LSAT and take practice exams, as well as continue to analyze and research contracts..
Furthermore, having a long conversation with Mr. Lowry helped reassure me that attending law school and working for a respectable firm are not as intimidating as they can sometimes seem. I intend to follow up on my conversation with Mr. Lowry; he will be a knowledgeable resource to answer any legal questions that arise I continue to study business contract law. His
encouragement, coupled with the realization that I could understand the process that goes into writing what I had originally viewed as quite complicated legal contracts, motivated me to more vigorously explore this possible future career path.
References
"Contracts 101: Making a Legally Valid Contract." NOLO Law for All. NOLO, 2011. Web.
29 Sep 2011. <http://www.nolo.com/legal-encyclopedia/contracts-101-make-legally valid-30247.html>.
"Drafting Legal Documents: Principles of Clear Writing." National Archives. The U.S.
National Archives and Records Administration, 2011. Web. 29 Sep 2011. <http:/
www.archives.gov/federal-register/write/legal-docs/clear-writing.html>.
Guilford, Andrew. "Legal writing: A contract between the reader and writer." California Bar Journal. (2010). Web. 29 Sep. 2011. <http://www.calbarjournal.com
November2010/TopHeadlines/TH4.aspx>.
Lowry, James K. Telephone interview by Kelsey Jarzombek. 28 Sep 2011.
Appendix Interview Guide
