Category Archives: Legal Drafting

Is “herein” ambiguous?

Apparently so. Although the case law is sparse, herein has been construed to mean the individual section in which herein appears but also the entire document in which the section containing herein appears. Context dictates.

  • In a section of the Los Angeles city charter, the word herein referred only to the section in which the word herein appeared and not to the charter as a whole. City of Los Angeles v. Layton, 75 Cal. Rptr. 143, 145 (Ct. App. 1969).
  • In a will, the word herein referred to the whole will and not to the individual section in which the word herein appeared. Taylor v. Albree, 56 N.E.2d 904, 909 (Mass. 1944).
  • The word herein referred only to the statutory section in which it appeared, and not to the entire article in which that section appeared. Sharp v. Tulsa Cty. Election Bd., 890 P.2d 836, 841 (Okla. 1994), as supplemented on reh’g (Jan. 31, 1995).

So be careful, drafters.

If you’re able, maybe change herein to

  • in this section
  • in this agreement
  • in this statute
  • in this will

Even better, but trickier if you’re relying heavily on a form, maybe change herein to

  • in section 4

MS Word can create automatically update-able cross references if you want it to.

Schiess’s biggest pet peeves: legal drafting

Here are my biggest pet peeves in legal drafting—primarily contracts and statutes. I’ve already posted my list for analytical writing here. This isn’t a list of the biggest problems in legal drafting, just the ones that bug me.

Sentence length

  • Sometimes sentences in a contract run to hundreds of words in length. A former student sent me a change-of-control provision that was a single sentence of 379 words.

Witnesseth

  • Huh?

Archaic words that are not terms of art.

  • whereas, herein, said

Shall

  • It’s not just the word you use whenever you feel the sense should be “mandatory.”

Doubling text and numerals

  • This practice has annoyed me for nine (9) years.

Unnecessary or redundant word strings

  • right, title, and interest
  • transfer, convey, and set over

Bad legal writing is everywhere

I hereby authorize the Merchant, or it’s Agent, to initiate a debit entry to the account indicated above at the depository financial institution named above and to debit the same to such account. I acknowledge that the origination of ACH transactions to my account must comply with the provisions of U.S. Law.

Huh?

How can we improve this? I don’t know enough about the substantive law or the reasons for some of the language contained in the original, but here’s a shot:

By clicking “confirm,” you authorize the merchant or its representative to deduct the amount show below from your account at your financial institution–listed above. Your origination of this ACH transaction must comply with U.S. law.