Recently I was in a meeting with a group of attorneys reviewing two proposed addenda to a contract. One was very detailed – contained definitions, covered all possible contingencies and outcomes. Its sheer length and complexity made it more difficult to follow. The second was much shorter thus easier to understand and addressed only the most likely complications. A spirited discussion ensued.

Boiled down, at issue was which document better served its purpose, which, in a transactional setting is presumably to accomplish the contractual goals or to provide a smooth exit if achieving the ultimate goal is not possible.Can a well-intentioned effort to provide, to the extent possible, all permutations and contingencies be too much information? Can the sheer volume and density of the detail cloud the very information you seek to provide? I think so and base my conclusion on a conversation I had when I first started practicing law.

As a new lawyer, I wrote a memo that carefully summarized the applicable law and weighed the pros and cons of a client’s proposed course of action. My mistake? I never stopped weighing, never took a position, that is, until the partner ordered me to do so. He was kind, but insistent. “Look, you know the facts and the law better than anybody at this point, and the client wants advice, not a dissertation on possibilities.” (For an interesting post on how law schools fail to prepare students for the role of transactional lawyer see Langdell’s Curse and Transactional Lawyers.)

I think he was right, that an attorney’s job is to make judgments about the probability and seriousness of various risks. In a transactional document, the job extends to then providing for the most serious, likely risks. Sometimes that results in a very detailed complicated document, but sometimes long, complicated documents result from a lawyer’s failure to assess the likeliness of a risk. Rather than making a judgment, the lawyer simply provides for all eventualities.

So what’s the problem with that approach? Well, from my perspective, it’s overkill which results in complexity, often at the cost of reduced comprehensibility and increased expense for the client.

My analysis doesn’t answer which addenda is better, because in this particular instance, the attorneys were drafting a form addenda to be posted on practicelaw. Risks are much harder to evaluate in the abstract, thus their conclusion as to the ideal addenda may well differ from that of the individual practitioner. But still a point worth keeping in mind – bigger isn’t always better. Complexity often reduces comprehensibility thus compromizing the goal of a transactional document.

Given that it is President’s Day, I close with some advice from George Washington. “Let your Discourse with Men of Business be Short and Comprehensive.” Just don’t be too short or too comprehensive!