I love words.

I absolutely love to find where and when the writer’s economic use of words becomes both effective and impactful [as just one such example, one of the first associate justices of the United States Supreme Court, Justice Joseph Story (1811 – 1845), wrote this: “In the law, the power of clear statement is everything”].

I love how words such as “binary” or “concurrent” or “paradox” or “compel” or “expressly” or “constellation” or “default position” or “pertinent” or “nuanced” – along with many, many other such words – just sound so right to me, and fit so seamlessly into sentences and paragraphs and documents and agreements.  I love to have read a great book and find some turn of a phrase from the author – perhaps even a single sentence – which became memorable to me.  And (maybe much to your chagrin) I also love footnotes…I love the way a footnote can be effectively used to explain a point, but not to “get in the way” of the writer’s intent in making that particular point.

I love the constant struggle (and for family law attorneys it most definitely is a struggle) – that quest – to translate a negotiation or a discussion or “spoken-out-loud” streams of thought into a clarity of words, phrases, and paragraphs so that, no matter the reader, everyone immediately knows not only the intent of the use of those words, but also the precise point being made by them.

Last year an excellent and skilled young attorney asked that I review a final marital settlement agreement which some years earlier had been approved by the family court judge and entered of record (note here: the “requesting attorney” was not the one who had drafted this settlement agreement); and I was struck by this provision which had become court-approved so as to govern the parties’ conduct under the court’s contempt powers:

“Children’s Extracurricular Expenses:  The parties acknowledge that the children have historically been involved in various sports and other extracurricular activities, lessons, church activities, and overnight summer camps, and that they wish to have the children continue with such activities.  The parties shall pay the expenses related to all agreed upon extracurricular activities, sports, lessons, and camps, as follows: 90% Husband and 10% Wife.”

At the time I had reviewed this agreement the parties’ children had aged three years; their “historical” interests and extracurricular activities had dramatically changed (and become dramatically more expensive).

And so to the above point, here would be my questions for your consideration: (1) did you find the words and the wording of this provision to be precise enough for every reader to have not only accurately identified and defined all of those various activities “historically” involved in by these children at the time of the execution of the parties’ marital settlement agreement, but also any future such activities in which these children may become engaged (and what about the current cost for all of these “activities”)? (2) Did you see any “red flags” or “future potential minefields” with the words and the wording of this provision? (3) Did you find every word within this provision to be completely unambiguous? (4) As an attorney, would you have found that the broad, generalization of the language afforded (more)(less) legal protection for your client? (5) Did you find that any of these specific provisions might constitute the basis for a “contempt of court action-in waiting” in the event these parents had ANY disagreements relating to their children’s participation in any specific activity or event and/or that parent’s payment for the cost of that activity or event?

Lindsay v. Lindsay, 328 S.C. 329, 340, 491 S.E.2d 583, 589 (Ct. App. 1997) – along with a constellation of subsequent appellate court opinions – stated in part: “(T)he [family] court must enforce an unambiguous contract according to its terms regardless of its wisdom or folly, apparent unreasonableness, or the parties’ failure to guard their rights carefully.”

Read and re-read (and re-read again) these words: “folly” … “failure to guard their rights carefully”. 

Also, in the very recent South Carolina Court of Appeals published opinion in May v. May, S.C.Ct.App. Opinion No. 5667, filed July 24, 2019, the COA held the following:

“South Carolina case law is replete with cases finding a party’s failure to read a contract does not vitiate the contract of that party’s obligations under it. (Case citations omitted.) (‘One who is capable of reading and understanding but fails to read a contract before signing is bound by the terms thereof.’) (‘One who signs a written instrument has the duty to exercise reasonable care to protect himself.’) … .”

To that above point – and aside from the (obvious) obligation/requirement of your client to have read and understood the “written instrument” prior to signing it – what professional responsibilities would you, the drafting family law attorney, have or bear to your client in insuring the precision of the words, terms, provisions, and conditions you included within that agreement/contract/written instrument?

I find it paradoxical that, when I first began my journey into the practice of law many years ago, one of my first drafted agreements used phrases such as “the party of the first part offers to pay the party of the second part good and valuable consideration representing a fraction known to both parties of the total cost of their agreed-upon fair market value of the real property involved in this transaction” … and in 2019 attorneys will now communicate with one another using text messaging which will almost exclude vowels altogether (e.g., “RU N2 R OFFR?).  And, although candidly it was a real grind in my trying to draft such an archaic marital settlement agreement, in the modern-day practice of family law you should never allow yourself to use any form of “legal shorthand” where the lives, both present and future, and the financial fortunes of a client and the client’s family are at risk in the words that you, the family law attorney, craft.

And so to my young family law colleagues, let me stop here and offer this unsolicited advice to you: when you are crafting written agreements for those clients who have paid you perhaps a great deal of their hard-earned money to protect their futures, take your time in your quest for precision in the words that you produce.  Take your time.

Take your time to fall in love with the “precision of the words” that you use.