Sometimes, something just jumps out from the background at you. Like a guy in an “Ellen” audience, even if there’s nothing technically wrong with it, some stuff just feels anomalous–out of place–and it causes your subconscious to wake up and say, “Huh? What is that doing there?”
Which I guess is how I came to notice the sentence at the bottom of this post. Despite its relatively vanilla meaning, the sentence, from a Delaware corporation’s Amended and Revised Certificate of Incorporation, somehow managed to swell to include 10 commas, 23 references to existing defined terms, three newly defined terms, and a corpulent 274 words.
People…is this really necessary?
Now, I recognize that the language comprising a best practices charter document has built up by accretion over the years. And I get that our profession’s reverence for precedent means that at bonus time your firm’s compensation committee won’t be parceling out Distributable Net Income based on terseness in drafting (“Bravo, Smathers…wonderful show of concision this year. Keep slashing away at the thicket of multi-level qualifiers; you’ll make partner in no time!!!”). Still though, the twin goals of drafting should be:
1. To cover content thoroughly and unambiguously, and
2. To ensure that you have covered that content in an efficient enough manner so that your intended readers can readily comprehend it in a consistent way and can then conform their actions accordingly.
The 274-word sentence might technically satisfy criterium #1, but it’s a total architectural fail on #2. At some point, as qualifiying subordinate clause piles onto qualifying subordinate clause, this swaying Jenga-tower constructions comes crashing down on its readers. If you ask your clients what they think when you draft 274-word sentences, I’d bet a surprising number of them would accuse you of being needlessly (and perhaps, intentionally) arcane.
Here’s what it’s like…Remember the first wine-tasting in the movie “Sideways,” where Paul Giamatti’s cranky connossieur character described one offering as tasting like strawberries but also having “just like the faintest soupçon of like asparagus and just a flutter of a…like a,…a…a nutty Edam cheese?” Put aside for a moment how unappealing this combination of tastes might actually be (“Seriously? Strawberries, asparagus, and nutty, waxed Dutch cheese? Together? In a drink? Yummers. I’ll take two cases!”). Here’s the lesson to take from this scene: sometimes experts, in trying to express their expertise with exacting specificity, totally foresake comprehensibility and accessibility. Your clients do not want to read 274-word sentences any more than they want to drink wine that taste like it has asparagus and cheese in it. Lawyers, like Giamatti’s connossieur, can get a little word-drunk on their own capacity for complexity.[My almost-totally facetious solution? Let lawyers bill by the sentence. Let them charge more if they can split their thoughts into smaller and more digestible pieces. In no time you’ll have a generation of AmLaw Hemingways dropping their lean, hard prose into charter and transaction documents everywhere. ]
Here it is:
“In the event of a Deemed Liquidation Event referred to in Subsection 2.3.1(a)(ii) or 2.3.1(b), if the Corporation does not effect a dissolution of the Corporation under the General Corporation Law within 90 days after such Deemed Liquidation Event, then (i) the Corporation shall send a written notice (the “Redemption Notice”) to each holder of Preferred Stock no later than the 90th day after the Deemed Liquidation Event advising such holders of their right (and the requirements to be met to secure such right) pursuant to the terms of the following clause (ii) to require the redemption of such shares of Preferred Stock, and (iii) if the holders of at least a majority of the then outstanding shares of Preferred Stock so request in a written instrument delivered to the Corporation not later than 120 days after such Deemed Liquidation Event, the Corporation shall use the consideration received by the Corporation for such Deemed Liquidation Event (net of any retained liabilities associated with the assets sold or technology licensed, as determined in good faith by the Board of Directors of the Corporation), together with any other assets of the Corporation available for distribution to its stockholders (the “Available Proceeds”), to the extent legally available therefor, on the 150th day after such Deemed Liquidation Event (the “Redemption Date”), to redeem all outstanding shares of Series B Preferred Stock at a price per share equal to the Series B Liquidation Amount, of Series A Preferred Stock at a price per share equal to the Series A Liquidation Amount and of Series A-1 Preferred Stock at a price per share equal to the Series A-1 Liquidation Amount.”