What a difference a prefix makes. In the highly publicized divorce case of Frank and Jamie McCourt, owners of the Los Angeles Dodgers, a high-priced attorney has admitted to changing the word “exclusive” to “inclusive” in a post nuptial agreement about the division of the couple’s assets. Did the lawyer really “miswrite”, as he stated in his testimony? Or was something more nefarious at play? I don’t know. That’s for the judge to decide.
A recent article in the Los Angeles Times described the testimony. The article, by staff writer Bill Shaikin, said,
In riveting testimony Tuesday in the Frank and Jamie McCourt divorce trial, her attorney relentlessly attacked the lawyer who changed an agreement to say that Frank McCourt was the sole owner of the Dodgers rather than the couple owning the team jointly.
Jamie McCourt’s attorney, David Boies, displayed alternate drafts of the agreement, some of which described the Dodgers as “exclusive” of Frank’s separate property, not “inclusive.”
Boies asked Silverstein whether the word “exclusive” in those drafts meant the property in question was excluded from Frank’s separate property.
“They certainly could be read that way,” Silverstein said.
“Could they be read any other way, sir?” Boies said.
“It’s hard for me to answer that, because I know what the intent is,” Silverstein said. “I just miswrote it.”
At a reported $1100 per hour, one would have thought he’d be more careful. Some people say that the lawyer is “crazy like a fox” – pretending that all he did was make a dumb error when in fact he acted intentionally. I don’t know. Certainly it seems that someone would prefer to look stupid than to trade in his Brioni suit for a prison jumpsuit.
But let’s give the lawyer the benefit of the doubt and say he just got muddled up in his language. What I’m wondering is whether this mistake could have been made in a document that was written in plain English. Rather than writing that the property was inclusive or exclusive of anything, perhaps it should have followed a piece of advice we offer in our writing trainings: Write with verbs. If the sentence read, “The property includes [the Los Angeles Dodgers]” or “The property excludes…”, even a hyper-smart lawyer like Mr. Silverstein would have had a hard time getting confused. The nicest interpretation one can make is that he tripped over his own legalese.
“Make everything as simple as possible, but no simpler,” wrote Albert Einstein. We agree. Using plenty of straightforward verbs and sentence forms reduces the possibility of stumbling over a piece of convoluted jargon and raises your likelihood of making your real meaning immediately understood. It also reduces your chances of stumbling over your own words. Because no matter how the McCourt case turns out, someone will be paying for the inclusive/exclusive snafu.