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evolting Pedants

Never A Pedantic – A Reply To Revolting Pedants by @LegalBizzle

June 9, 2011

Reading Legal Bizzle’s very interesting article Revolting pedants made me  uncomfortable as he concluded:  “And I’m happy to say it loud: I’m a pedant, and I’m proud”.

Much as I want to agree with Legal Bizzle, I can’t do so given my strong dislike for pedantry. The word has connotations of officious types who are sticklers for rules and stand by formality when all reason points to more pragmatic solutions. To me pedantry means pettiness and trivia – arguing over unimportant minutiae. Which lawyer would be proud to be associated with such negative connotations?

Certainly a good lawyer needs attention to detail but so do many other professionals. In most areas of life the small stuff, the minute details can and do matter enormously.

So I turned to the dictionary for a definition of pedantry. According to the Chambers English dictionary, to be a pedant is to “attach too much importance to merely formal matters in scholarship”.  However, none of the examples Legal Bizzle gave in his blog fit this category. Far from being formal matters, the clauses he mentioned involved serious commercial consequences. So, I don’t think Legal Bizzle is a pedant, though it mystifies me why he should want to be one.

Being ‘commercial’ is a desirable attribute in a lawyer. I would argue it involves knowing when NOT to be a pedant. So I can’t agree that a good lawyer is a pedant. Far from it.

To pay attention to detail, does not a pedant make. Pedantry is to lose sight of the importance of a point of detail. This can happen when a lawyer doesn’t really understand why a precedent is worded in the way it is, and feels safer therefore in defending it against amendment. But the more experienced a lawyer is, the less likely they are to let imprecision slip through in a clause having serious implications, and will understand when a point is trivial and can be conceded during negotiations.

For example, with “best endeavours” it will depend on what the other party is to achieve, as to whether it is worth arguing whether the contract should impose an obligation on them to use their ‘best’ endeavours or whether ‘reasonable’ endeavours would be adequate.

Any lawyer may start off by trying to get the best deal for their client, and so would propose ‘best’ rather than ‘reasonable’ as a starting point. But whether it’s then worth arguing the toss is another matter. As long as the client appreciates that ‘best’ requires more effort than ‘reasonable’, it’s up to the client to decide what’s worth insisting on with the other side. To argue the point simply because you know that ‘best’ is better than ‘reasonable’ when the client doesn’t think it’s important would indeed be unnecessary pedantry – unless you are doing so on purpose as part of an overall negotiation tactic, to have concessions to trade later.

Legal Bizzle then gives the following clauses as an example of how difference of wording matters:

The supplier shall not in any event be liable for any indirect, special or consequential loss, howsoever arising (including but not limited to loss of anticipated profits)

The supplier shall not in any event be liable for any loss of anticipated profits or for any indirect, special or consequential loss, howsoever arising

Whether to exclude liability ONLY for anticipated profits or for all indirect losses, of which anticipated profits is one small example is clearly not just a formal stickler type of objection. Most clients would understand that if they are not insured for certain liabilities their business would suffer, and will not regard discussions over such clauses as pedantic. It’s the very essence of what they use lawyers for – to look after their interests.

However, often contracts include many quite tedious procedural details which don’t really need to be in the agreement at all. For example, for many SME web development projects the standard web development precedents are overkill in my view. They run to 15 pages, and among other things, spell out in excruciating detail how acceptance testing should be carried out and notifications of errors sent, and how these will be remedied/retested etc. Whole pages of standard web development contracts can be cut out and a much briefer document created that just focuses on important risks and essential commercial issues. Most clients prefer briefer contracts, although longer contracts have their place – usually in larger projects.

Perhaps if as a profession us lawyers could see the wood from the trees more, and focused on creating shorter, clearer precedents that addressed the real risks of transactions, clients would better understand how we add value. But as long as we continue to have epic contracts that seek to address every single risk, regardless of the amounts at stake, or the commercial realities, we are at risk of seeming to be pedants arguing over unimportant trivia.

For me good lawyering is about being commercial and business like first and foremost. Pedantry has no place.

It is harder for in house lawyers as they may not be able to simply advise their client and ask them to indicate how to  proceed. Say the issue is, for example, whether to insist on ‘best’ rather than ‘reasonable’ in house lawyers themselves will have to weigh whether it’s worth insisting on this during negotiations as their client is the company, and a company has many stakeholders whose interests need to be borne in mind.

When the immediate  ‘instructing client’ is the sales staff who may regard the lawyer as an obstacle to a signed deal it can be extremely challenging. The sales staff are likely to be cavalier about contract wording, so the lawyer will be operating in difficult conditions. Maybe Legal Bizzle has to be proud to be a ‘pedant’ because it can feel like pedantry operating in such a scenario.