Whereas, I Keep Telling Lawyers to Stop Writing Like This

Teddy Snyder | You’re not writing in the 14th century, so stop trying to sound like a scrivener from 700 years ago.
The post Whereas, I Keep Telling Lawyers to Stop Writing Like This appeared first on Articles, Tips and Tech for Law Firms and Lawyers.

You aren’t writing in the 14th century, so please stop using archaic language in legal documents.

Fishbowl is a social media app where professionals can anonymously share information. The vibe is much more informal than LinkedIn. There are several groups, called bowls, for lawyers. 

A recent Fishbowl post by an associate about drafting corporate resolutions caught my attention:

“I was told to capitalize the first word after each ‘Whereas,’ in the recitals. This feels dumb. I refuse to comply. Is this really a thing?”

Short answer: No. The recital is a sentence in an important document, and we don’t capitalize words in the middle of a sentence unless they are proper nouns, such as names. 

That’s not the end of the story.

What’s The Deal With Recitals?

Recitals are statements at the beginning of a document that explain why the signers are doing this stuff. Recitals are not operative, but they can provide context if there is a dispute later. That’s why you’ll see recitals in releases that say things like, we don’t concede anything, but the parties just want to buy their peace.

What Century Is This?

The post attracted many comments, including several from writers who advised dropping “Whereas” altogether, because it was archaic. The word was first used in the 1300s as a shortcut for “in consideration of the fact that ….” Think of it as a substitute for “because.” 

But you’re not writing in the 14th century — so stop trying to sound like a scrivener from 700 years ago.

Instead of the archaic ‘Whereas,’ use a modern English heading. 

The heading can be Recitals or just Background. You can justify left and underline, center it and use all caps, or make it bold if you like. 

Then, simply write sentences for each item you wish to recite. Label each one with a number or letter, especially if any of the resolutions are longer than one paragraph.  

Similarly, instead of “Now therefore,” create a heading such as Resolutions, Agreement, Terms, or Provisions. Also, ditch “Be it resolved.” Instead of using archaic language in settlement documents and contracts, “The parties agree as follows” works every time.

So the Boss Insists on Archaic Langage — What Difference Does It Make?

One commenter told of a client who, insisting on archaic language, said, “If it’s not illegal, I don’t care.” Another posted, “I remember the time when I removed the commas after every whereas in a stipulation and opposing counsel had a hissy fit.” A general counsel (!) opined, “Redundancy is not your enemy.”

This one encapsulates most of the advice: “You’re right, but if they’re the boss and that’s how they always do it, it’s not worth fighting over. Pick battles that matter.”

While this may be good, short-term career advice, it sets a terrible precedent. Undoubtedly, the person who insisted on this usage learned it eons ago. “That’s the way we’ve always done it,” is a bad justification for any practice in any industry. 

Repercussions from Using Archaic Language in Legal Documents

The refusal to update drafting practices can also make for unhappy employees, a talent retention issue. Understandably, a junior drafter may not want their name to appear as an author of a poorly drafted document. Often, it is the bottom name on a list of authors on a pleading who did the actual work, or at least it appears that way. Yet, that same document could be an embarrassment. It certainly won’t work as a writing sample. Some firms recruit lawyers they come across who have impressed them with their communication skills. Forget that if you’re signing off on Middle English verbiage.

Unfortunately, templates that perpetuate bad writing abound. When lawyers insist on using outdated language and formats for 21st-century documents, they can create interpretation issues. While some clients may be impressed with a lawyer’s fancy vocabulary, more sophisticated clients will prefer plain language.

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