By David E. Boelzner, Esq.
 
At the inception of a project, before design is begun, it is customary - and arguably advisable - for the design professional to attempt to ascertain what the purpose of the project is, what the owner wants. The ensuing design documents are an attempt to communicate in graphic form what the project is intended to be.
 
Does anyone ask this fundamental question about the contracts that define the legal relations among the project participants? What is their purpose? The answer to the first question in many cases is that surprisingly little effort and attention is given to the potentially crucial task of writing up the contracts, and what effort is devoted to the task usually skips past the central and basic question: what is the purpose of this contract?

If any of my readers silently responded to the second question, they undoubtedly thought, "Well, of course, the purpose is to define the duties and responsibilities among the parties." Most lawyers would agree with that description, but unless the question is really explicitly asked, the purpose can get lost or be forgotten in the details of drafting.

There are actually occasions when the purpose of a writing is not to make duties and responsibilities clear. The classic example of this is compromise legislation, where competing political interests are able to meet on most fronts but cannot reach precise agreement on everything. In such cases, the statute or regulation is apt to be drafted with deliberate ambiguity, leaving it to the courts to complete the necessary balancing. This is unquestionably unfair to judges; some of them engage in the "construction" - interesting word! - of these laws eagerly, others kicking and screaming. But the situation is common.

The same conflict of interests can occur on a construction project and can be just as difficult to resolve. Construction contracts frequently reflect this failure to close the conceptual gap, but usually not through deliberate finesse but rather as a result of not-so-benign neglect. A square form contract is forced onto a round transaction, or an issue arising in discussions is tabled as too difficult to resolve at present and then never comes up again. The contract will contain a gap, and if the issue next presents itself in litigation - and as an issue that initially perplexed the parties, there is every likelihood it will - then a court will strike the balance as it sees fit after the parties expend a great deal of money and effort.

Sometimes conflicting interests in a project simply cannot be resolved and, because the parties do not wish to jeopardize the project or their participation by standing firm, a decision is made to overlook the issue and hope it doesn't present a problem. But the key thing is to make sure any ambiguity included in an agreement is intentional, the result of a calculated risk undertaken in exchange for a reasonable benefit. All other relations should be as definitely described as possible. Remember: apart from the occasional breach by a party who simply fails to perform, most disputes arise when one party's expectations are disappointed, often because the mutual expectations were not fully explored and understood at the beginning.

Not only in official legal contracts do accuracy and completeness matter. Unless your purpose is to mislead, make sure everything you write expresses what you mean to say and aims squarely at the result you hope to obtain. Although I admit that standard business and professional writing casts doubt on the notion, language really can be a precision tool if used correctly. Neither a lot of fancy words nor stiff formality is required to be clear. Indeed, much of the ambiguity I see results from people trying to be fancier than they need to be. Many rules and tips could be offered if space permitted, but here is a simple methodology: think of what message you want to convey; phrase it as you would verbally to a friend or spouse; write it down that way; edit out only the contractions and slang; send it.

Compare these two sentences: (a) To facilitate project scheduling, it has been determined that structural initialization will overlap remaining concrete activity where feasible. (b) So the steel contractor can keep up with material deliveries, the prime contractor is directing him to start work in area [X] while concrete pours are completed in areas [Y] and [Z]. Sentence (b) not only makes it clear that the steel sub will not interfere with the concrete sub, much to their mutual relief, but it is candid about the reason for the decision and who is responsible for it. Objections, if any, can be directed at the proper party and issue; doubt is removed. And there is nothing second-class about sentence (b) just because it forsakes high-falutin' gobbledygook like facilitate, initialization, and feasible, not to mention the accountability-evading passive voice.

If honesty and clarity are not always the best policy - response to certain marital inquiries comes to mind - they are almost always best in the interaction among parties to a contract that can end up in court. Make everything you write, especially contracts, say exactly what you intend.

About the author: David E. Boelzner, Esq., is a Director of CSRF, an attorney, and a member of Wright, Robinson, Osthimer & Tatum, Attorneys with offices in major US cities. Mr. Boelzner can be reached at dboelzner@wrightrobinson.com.

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