Where in a Sentence Should You Place an Exception? (Plus Observations on the Nature of Contract Language)

I noticed an exchange between D.C. Toedt and Bryan Garner. Because it allows me to address a moderately interesting issue, namely where in a sentence you should put an exception, I permit myself to wade in.

The starting point is this article by Garner in the ABA Journal. Here’s the gist of it:

Keep in mind two principles for creating readable prose: (1) A fair percentage of sentences should begin with short contextualizing phrases, often adverbial. (2) A fair percentage should begin with one-syllable transitional words—normally But, Yet, So or even And.

This advice is entirely standard and unobjectionable, but it has no bearing on contracts. Bryan’s audience is lawyers who are “professional rhetoricians.” That doesn’t include contract drafters: contracts aren’t the place for telling stories or persuading.

Nevertheless, in this post on his blog, D.C. uses Bryan’s article to make this point about contract drafting:

In a contract, it’s less important for the writing to pack a punch than it is for each sentence to make its point quick­ly, precisely, and under­stan­d­ably, so as to help speed up legal review and get the contract to signature soon­er. And that will usually call for the kind of boring, just-the-facts-ma’am style — Alice will do X, Bob may do Y — that Garner urges writers to avoid.

But in applying to contract drafting Garner’s points regarding rhetorical style, D.C. is comparing apples and oranges: it makes no sense. But D.C. avoids facing that because he includes no examples.

Bryan responded with this tweet. In addition to pointing out that D.C. had offered no examples, he says this:

The principle of end weight—putting emphatic words at the ends of sentences to avoid syntactic fizzle—applies almost as strongly to contractual drafting as in other expository prose.

So now Bryan too is comparing apples and oranges. This general proposition leaves me flummoxed.

But Bryan’s tweet includes this photo:

Ah, now we’re getting somewhere! The two examples in this photo don’t address some general point of syntax or rhetoric. Instead, they address a narrow issue: where in a sentence you should put an exception!

Where you put exceptions shouldn’t be a function of emphasis. Emphasizing one part of a sentence over another is at odds with the nature of contract language: it’s analogous to software code, so everything matters.

The primary concern should be avoiding confusion. Consider “Ex. 1” in Garner’s photo. Putting the exception at the end arguable creates syntactic ambiguity: one could get into an argument over whether the exception applies to everything that precedes it or applies to just “free from all tenancies.” If you put the exception at the front, you avoid that uncertainty. So that’s what I recommend: if your exception applies to the entirety of the rest of the sentence, putting it at the front should serve to avoid such confusion. (But in some contexts opening modifiers can result in confusion; see MSCD 12.23.)

You might be able to improve on my analysis, but I feel that I’ve at least salvaged something specific from an exchange that was going nowhere.

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