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And I Bet You’ve Never Read It

Disclaimer-300x225How many e-mails do you get per day? 25? 50? Over 100? Now, how many of them have that long paragraph at the end after the signature? The one that says something along the lines of:

“This e-mail is intended solely for the recipient.  If you receive this e-mail in error…”

I bet the only people who have ever read the entire paragraph have done so ironically — shaking their heads while reviewing this extra, finely-typed language, wondering “who in the world actually thinks this means anything?” I’ve been in practice for 26 years and I’ve never seen any situation in which that language has ever come close to being called into play.

“See, Judge?  We had that disclaimer there, so the e-mail can’t be used. Gee, that disclaimer at the end of every single one of our e-mails really saved our bacon!”

There’s a lot of language like that out there. Yesterday, I was reviewing a contract that included among its terms that all payments must be made in U.S. dollars. Mind you, this was not an international firm or a contract between foreign nationals. It was your standard, Baltimore metropolitan area project contract. Was that a necessary term? Was the firm presenting the contract genuinely afraid, perhaps from prior experience, that they were going to be paid in Lira, but for this provision?

Almost every time I am asked to review and rewrite a company’s standard contracts I find two things about their existing version:

  1. It protects them from things that would never happen in real life; and
  2. It fails to protect them from very real issues of recent experience.

The same findings are true even when I’m just a customer asked to review and sign a vendor’s proposal.  My landscaper had a whole paragraph discussing what happens when I remove a tree he’s planted and put it somewhere else. (Spoiler alert: He’s not responsible.) Contract or no contract, in what universe would a person claim (or a judge find) that he was?

The fact is that language and communication are not the same thing. Language is like shots fired, but communication is what actually hits the target. What’s more you’ve got a very short window within to take your shots because the average reader’s attention span is shrinking almost daily. Your best case scenario is that the ill-advised facets of your communication will be shrugged at and forgiven. Not much of a best-case, if you ask me.

The truth is that whether your forms protect you from risks truly remote in real life or seek to compel action no one would ever read, let alone take, you’re wasting ammunition and you’re wasting time.