Garner’s Guidelines for Drafting and Editing Contracts

By Bryan A. Garner

West Academic Publishing, 537 pages, 2019

In “A Night at the Opera,” Groucho Marx magnificently lampooned contract language and lawyers with his “party of the first part” sketch.

In his newest (I think) book, Bryan A. Garner discusses somewhat more soberly the origin of that turn of phrase. As Garner tells it, in centuries past, contracts written out in duplicate on one page by scribes would be cut in half. One party to the contract would take the first half―the party of the first part―and taking the second half would be the party of the second part.

Garner describes this term as “a wordy archaism that needlessly persists.” It’s one of many that are excised by this master of clarity and concision.

I hesitate in saying that this is Garner’s newest book because also coming out this year is the eleventh edition of Black’s Law Dictionary. The harmless drudge in me eagerly awaits Garner’s pronouncements on words old and new.

Garner is known for his friendship with the late Justice Antonin Scalia, with whom he co-authored a worthwhile book on “Making Your Case: The Art of Persuading Judges.” And for his coauthored books with others, such as “The Rules of Golf in Plain English,” which this reviewer has never read and has no intention of doing.

Putting it mildly, the man is prolific.

So what’s in this book, on contract-drafting guidelines? A lot. A lot. His main point is not that contract drafting is so specialized; rather, as stated in the introduction, that “the subject matter can be largely expressed in normal idiomatic English.” He returns insistently to this theme throughout the book, which in its first edition is already vying for status as a tome.

Ideas that he has espoused in The Redbook, in The Elements of Legal Style and elsewhere are prominent here: basic stuff like typography.

And punctuation, including recommending the use of a “double-dash construction,” as Garner puts it. Recently I came across this usage in a New York criminal statute:

“If the court finds that such violation materially affected the defendant’s decision, and if the prosecution declines to reinstate the lapsed or withdrawn plea offer, the court―as a presumptive minimum sanction―must preclude the admission at trial of any evidence not disclosed as required under this subdivision.”

This is an approach that Garner would likely recommend for ideas that need emphasis, even in contracts or statutes. He comments that the “bias against dashes is wayward and backward. Used in moderation, em-dashes are an important part of any good writer’s arsenal.”

But note: in this situation you should use an em-dash, not an en-dash or hyphen. Elsewhere in the book, Garner strongly recommends using hyphens in phrasal adjectives (“good-faith attempt”).

Garner practices what he preaches. The wrong and right ways are set out clearly in the book, using “Not This/But This” columns. Examples are myriad.

The book covers avoiding “zombie nouns” (e.g., instead of “make an assignment,” try “assign”) and urges “avoiding romanettes except as a last resort” (i, ii, iii).

Other things to avoid include the “traditional testimonium clause” (“IN WITNESS WHEREOF, the parties have caused….”) Also, no underlining or all-caps. He also urges changing “may not” to “must not” in contracts, noting that “may not is traditionally a way of denying permission…. By contrast, the prohibitory must not is unequivocal.”

On the positive side, he urges using “hanging indents”―what he calls a “rectilinear series of cascading provisions,” such as 1, 1.1, (A), (I), (a), which move stairstep, from left to right on a page.

While this book is about writing contracts, plenty of its advice applies to other types of legal writing.

This is likely not a book to be read from cover to cover but used instead as a reference for when we know there’s got to be a better way to express our clients’ responsibilities and duties.

Gary Muldoon is a partner with Kaman Berlove Marafioti Jacobstein & Goldman in Rochester, N.Y.