The forthright negotiator

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A comment on my post "No understandings not specified here" points us to an article (Jef Feeley and Jason Kelly, "United Rentals Can't Force $4 Billion Cerberus Buyout", Bloomberg, 12/21/2009) about a case where "some of the best lawyers in the world, and the Delaware courts, couldn't work out the meaning of what they had written". A bit of internet search turns up a link to the opinion in that case, in a post by Peter Lattman at the WSJ Law Blog, "Chancellor Chandler Hands Cerberus a Big Win", 12/21/2007, which quote the first two paragraphs of the opinion's opening:

In classical mythology, it took a demigod to subdue Cerberus, the beastly three-headed dog that guarded the gates of the underworld.* In his twelfth and final labor, Heracles** journeyed to Hades to battle, tame, and capture the monstrous creature. In this case, plaintiff United Rentals, Inc. journeyed to Delaware to conquer a more modern obstacle that, rather than guards the gates to the afterlife, stands in the way of the consummation of a merger. Nevertheless, like the three heads of the mythological Cerberus, the private equity firm of the same name presents three substantial challenges to plaintiff’s case: (1) the language of the Merger Agreement, (2) evidence of the negotiations between the parties, and (3) a doctrine of contract interpretation known as the forthright negotiator principle. In this tale the three heads prove too much to overcome.

First, the language of the Merger Agreement presents a direct conflict between two provisions on remedies, rendering the Agreement ambiguous and defeating plaintiff’s motion for summary judgment. Second, the extrinsic evidence of the negotiation process, though ultimately not conclusive, is too muddled to find that plaintiff’s interpretation of the Agreement represents the common understanding of the parties. Third, under the forthright negotiator principle, the subjective understanding of one party to a contract may bind the other party when the other party knows or has reason to know of that understanding. Because the evidence in this case shows that defendants understood this Agreement to preclude the remedy of specific performance and that plaintiff knew or should have known of this understanding, I conclude that plaintiff has failed to meet its burden and find in favor of defendants.

This example suggests that judges write better than lawyers do. Nor is it the only evidence for that conclusion, though I recognize that the plural of anecdote is not data. So it's worth asking, is it true? And if so, is it because of the cultural history of anglo-american legal practice, or because of the selection process for judges, or because of the different situations and goals of the two classes of writers?

As for that "forthright negotiator principle", this is certainly something that normal humans presuppose in their communicative exchanges. It's part of why "theory of mind" reasoning is hard. But I haven't previously gained the impression that forthrightness in contract negotiations is considered an enforceable virtue.


  1. Bob Lieblich said,

    January 13, 2010 @ 8:47 am

    Judges come from the ranks of lawyers (allowing for rare exceptions — for example, nothing in federal law requires that judges in federal courts be lawyers, though all of them are). The process is supposed to elevate the best and brightest, so you'd expect judges to be better writers than run-of-the-mine lawyers. Also, judges generally hire their law clerks from the top ranks of law students, and the clerks frequently write as well as, or even better, than the judges. (I can think of one judge whose writing varied considerably from year to year. We all knew why.) As MYL undoubtedly understands, there is wide variability from judge to judge in the quality of writing. But on average, there's no question that judges do better.

    As for the "forthright negotiator," I've been tilling the contract-law vineyard for upwards of four decades and have no recollection of encountering the label. But the principle is well-established — if one side knows how the other side reads the agreement, and that reading is a reasonable one, it has a duty to clear the air. Failing to do so has just the result it did in the United Rentals case. The rule strikes me as eminently fair — its intent is to prevent ambushes. The problem lies in deciding whom to believe. In United Rentals, the judge obviously believed that one party failed to clarify that which it knew to be unclear, and that party lost. I'd be shocked if, on those findings, the case had come out differently.

  2. Ken Adams said,

    January 13, 2010 @ 10:00 am

    Legal writing comes in many different forms, and perhaps none offers the writer as much latitude as does the judge's opinion. In particular, if you were to compare Chancellor Chandler's opinion to the limited and stylized and, as it happens, particularly clumsy version of legal writing on display in the merger agreement at issue, you'd be comparing apples and oranges.

    As regards the "forthright negotiator" principle, I agree with Bob that it's a fancy moniker for a well-established principle. Before Chancellor Chandler's opinion, only two other Delaware opinions had used the phrase.

    If anyone's interested, the following link takes you to a PDF of my New York Law Journal article on the contract-drafting implications of the dispute between Cerberus and United Rentals:

  3. Peter Taylor said,

    January 13, 2010 @ 10:25 am

    It's generally well-written, but there's a garden path sentence which I'm still not entirely clear about.

    Second, the extrinsic evidence of the negotiation process, though ultimately not conclusive,

    …is strong? …heavily favours X? No,

    is too muddled to find that plaintiff’s interpretation of the Agreement represents the common understanding of the parties.

    Am I wrong in expecting "NP1, though not AP1, is AP2" to be roughly equivalent to "NP1 is AP2, but not sufficiently to be AP1"?

  4. Jonathan Cohen said,

    January 13, 2010 @ 12:33 pm

    There seems to be a mismatch between the names of Cerberus (Latin name) and Heracles (Greek name). Kerberos and Herakles? Cerberus and Hercules? The judge seems to come down in the middle, splitting the difference.

  5. Neal Goldfarb said,

    January 13, 2010 @ 1:13 pm

    I've read a hell of a lot of writing by judges and lawyers, and I wouldn't feel comfortable making any generalizations about which group, as a whole, writes better. However, let me list two institutional factors that might slant the playing field in the judges' favor.

    First, of course, is the selectivity involved in choosing judges. While I don’t agree with Bob Lieblich that the system is geared toward choosing the best and the brightest—politics in all its many forms plays a big role—I wouldn’t be surprised if it turned out that the pool of realistic candidates for judgeships would contain a higher proportion of good writers than does the overall population of lawyers. This effect would probably be heightened with regard to appellate judgeships; since appeals-court judges spend more of their time producing written opinions than trial-court judges, you would expect that the job would attract candidates who place a higher-than-average value on writing.

    Second, the conditions under which judges write (or at least federal judges) are in some ways more favorable to good writing than those in which lawyers work. Judges have more freedom to write well than lawyers in government or private practice do. Judges are their own bosses, so a judge who want to put a little personality into their writing won’t have to worry about whether someone above them in the office will object. In contrast, conditions in the government and the big firms—especially the fact that more people will have a hand in the written product—probably discourage individuality.

    It would be interesting to get Bryan Garner’s take on this, since he’s probably talked to more judges and lawyers about writing than anyone else has. Hey, Bryan—are you out there?

  6. Andrew (not the same one) said,

    January 13, 2010 @ 1:31 pm

    Jonathan Cohen: Cerberus is a Greek name Latinised according to the usual conventions for such things. So is Heracles; if you wanted to stick closer to the Greek you would write Herakles. Hercules, by contrast, is a Latin name used by Latin writers, though clearly derived from the Greek, bearing the same relation to the Greek as, say, Ulysses does to Odysseus. (Actually, those are the only two examples I can think of, though I'm sure there are others; things like Zeus/Jupiter and Artemis/Diana are clearly a rather different kind of case.)

  7. Coby Lubliner said,

    January 13, 2010 @ 1:50 pm

    @Andrew (not the same one): How about Achilleus/Achilles?

  8. rpsms said,

    January 13, 2010 @ 2:26 pm

    I am not a lawyer, but it is my understanding that at some point near the conclusion of a trial or hearing, both parties in the dispute hand in their version of the judgement (aka briefs), and the judge will often plagerize/summarize sections of these documents which (s)he agrees with.

    In other words: some portions may be the words of the lawyers, and it might be difficult to tease apart the sections in a way that makes it possible to judge the judges' judgements.

  9. Rubrick said,

    January 13, 2010 @ 3:07 pm

    I'll grant that this judge writes better than most lawyers, but this stretch: "…to conquer a more modern obstacle that, rather than guards the gates to the afterlife, stands in the way of the consummation of a merger" struck me as marked. To my ear, "guards" should definitely be "guarding". I would never say "Kenobi, when struck by Vader, rather than dies, vanishes."

    I bother to point this out out of curiosity as to whether the form used is ungrammatical, merely nonstandard, or well-attested but contrary to my own dialect. (Or, perhaps, a mere typo.)

  10. Simon Cauchi said,

    January 13, 2010 @ 3:22 pm

    @Rubrisk: I agree with you that "guards" ought to be "guarding". I put down "guards" to a superstitious fear of offending the principle of parallelism. It's not unusual to find such a finite verb, in parallel with another, where most of us would choose the -ing form. If you want two parallel finite verbs, you'd be better to write something like "a more modern obstacle that does not guard the gates to the afterlife but rather stands etc."

  11. Bill Walderman said,

    January 13, 2010 @ 3:24 pm

    "I haven't previously gained the impression that forthrightness in contract negotiations is considered an enforceable virtue."

    Bob Lieblich explains the "forthright negotiator" principle well. It's not an "enforceable virtue"–it's just a way of resolving an ambiguity in the language of a contract where there's no better way, where the language itself doesn't supply an answer on its face. You can be as devious as you please in negotiations (short of fraud), but if there's evidence that the other side had an understanding you didn't share and you deliberately failed to resolve the ambiguity, it will be resolved against you.

    @Andrew: Pollux/Polydeuces

  12. Anon said,

    January 13, 2010 @ 5:01 pm

    As rpsms and Ken Adams point out, it is not a question of lawyers vs. judges, but of different kinds of legal writing. Contract language looks very different from the language used in legal briefs submitted to the court, which looks very different from the language of judicial opinions. It is to be expected that the judicial opinion, which is not constrained to arguing on one side or the other (like a brief) or to the small and formulaic vocabulary of a legal contract, would be the most intelligible to a lay person and the most pleasant to read, generally speaking.

  13. Anon said,

    January 13, 2010 @ 9:14 pm

    Anon at 5.01, as the original Anon that posted the link, I think that it comes down to audience. Lawyers draft for judges, judges opine for the public. Different targets = different writing style. Remember it isn't as though all lawyers write like that all the time, and in day to day writing many (especially at this level) are very clear.

    Incidentally, in Bob's comment, your "run-of-the-mine" phrase is interesting… isn't it "mill"?

  14. Marc said,

    January 13, 2010 @ 9:46 pm

    I agree that "guards" sounds wrong, or at least odd, to me. A hypercorrection to agree with the singular "obstacle?" Or, is this usage more common than I know?

    My instinct was to use the subjunctive "guard" rather than the gerund "guarding." I would have written: "…a more modern obstacle that, rather than guard the gates to the afterlife, stands in the way…"

    "Guarding" sounds fine to me, but does "guard" work too?

  15. Mark P said,

    January 13, 2010 @ 11:26 pm

    Maybe it's long experience. I had a previous life as a reporter. Many of my colleagues left the newspaper business to go to law school. I have no idea how many succeeded, but I heard from one that he was considered remarkable in his class for being able to write reasonably well. One hopes that even those who couldn't write particularly well at the time could learn from experience, and I assume that most judges have practiced law for some time.

  16. Jerry Friedman said,

    January 13, 2010 @ 11:44 pm

    The syntax of "rather than" joining verbs (or predicates? am I allowed to use that word?) is strange. If I may quote myself from LL last August:

    This reminds me of a question I've been wondering about. Here's an example from the CGEL (7.12):

    It contrasts rather than combines with them.

    Perfectly normal, at least in academic or formal writing.

    One might expect

    ?It contrasts with them rather than combines with them.

    There, despite the obvious parallelism, I want to say "combining".

    One might further expect

    *Rather than combines with them, it contrasts with them.

    That's just impossible. We have to say "combining".

    What's going on here?

    The relevant part of Tom Saylor's response was

    I've often puzzled about this myself. I suppose that in "It contrasts rather than combines with them" the "than" has to be a conjunction, as it coordinates two finite verbs. In "*Rather than combines with them, it contrasts with them", there's no finite verb preceding "than", so "than" can't be interpreted as a coordinating conjunction. In that position, "than" has to be interpreted as a preposition, and it's odd to have a finite verb ("combines") rather than a gerund ("combining") as the object of a preposition. A complication here is that we do, I think, say things like

    Rather than repair her old lawn mower, she bought a new one.

    Is it normal to have a bare infinitive ("repair") as the object of a preposition?

    I still find it odd that a phrase changes from preposition to conjunction depending on where it is in the sentence, but Tom's is the best explanation I've seen. And is there any other situation where you can move a phrase from the middle of the sentence to the beginning without changing the meaning, but in doing so you have to change a finite verb to a gerund-participle or a plain form?

  17. Sean said,

    January 14, 2010 @ 1:53 am

    Yes, "rather than guards" could be a typo or careless edit for "rather than guard". If I had been the editor, I would have revised to "instead of guarding".

  18. sid delong said,

    January 14, 2010 @ 1:37 pm

    As a previous post noted, much stylistic difference in legal writing arises from radically different writing situations that lawyers, including judges, find themselves in. WARNING: MIXED METAPHOR ALERT. I tell my contracts class that if a transaction lawyer is considered to be the architect of a deal, her job in drafting a contract is to design and construct a bunker, capable of withstanding assault by "bad faith" readers such as opposing counsel who may seek to distort its intended meaning in future lawsuits. The resulting prose will often be uglier and more over-designed than language designed for peacetime use. Drafting a negotiated deal document is also a competitive exercise in which the ultimate written product will reflect the results of a struggle, a jagged line representing the parties relative bargaining strength. Clarity is usually one of the first victims of this conflict. A deal document is the product of a speech situation that differs entirely from that of a single judge seeking to justify a particular decision he has made.

  19. Jerry Friedman said,

    January 14, 2010 @ 2:18 pm

    @Sean: Not necessarily careless. Wilson Follett recommended "The lecture adds much to the required reading rather than repeats it."

    Modern American Usage: A Guide, p. 159

    It sounds awful to me, but someone might follow that prescription and not believe that moving the rather than phrase changes it grammatically. "Match parts!"

    Other prescriptivists, such as Bryan Garner and Theodore Bernstein, have accepted the non-parallel form with "guards" or "guarding" (though Bernstein called it "idiomatic, though not entirely grammatical"—obviously using a different meaning of grammar from the popular one around here).

    As you point out, "instead of" solves the whole problem.

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