by Wilton H. Strickland

Many attorneys are familiar with A Man For All Seasons, the story of Sir Thomas More that began as a play but later was produced as a terrific film starring Paul Scofield. In the story we witness More — once an attorney himself — seek refuge in the law from the designs of King Henry VIII, who demands that his subjects take an oath that violates More’s conscience. More is executed on the basis of perjured testimony, yet throughout his ordeal he never flinches and offers memorable dialogue concerning the rule of law, especially when confronting a young man who thunders that he would destroy every law if necessary to capture the Devil. Responding, More delivers an observation for the ages:

Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down — and you’re just the man to do it — do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

These are high ideals that remind us of the importance of our work as attorneys. At the same time, though, More offers practical advice that can help us in our day-to-day business, specifically with regard to the use of words. When told of the King’s new oath, More asks for its precise wording and hears only criticism that the words don’t matter because the meaning is obvious. More corrects that argument as follows:

It will mean what the words say! An oath is made of words! It may be possible to take it. Or avoid it. Have we a copy of the Bill?

This small bit of dialogue contains worlds of importance for the legal practitioner. On several occasions I have witnessed how the imprecise use of words can cause a great deal of trouble, and I always recommend proofreading work product multiple times to avoid mistakes even if they appear trivial.

For example, years ago I got entangled in a dispute over the geographical scope of a non-compete clause in a contract. Whoever drafted the contract used “square mile radius” as the unit of measure, but a radius is a linear measurement, so the lone additional word “square” unleashed a flurry of arguments over whether the clause was ambiguous or could be enforced.

On another occasion I represented a faucet manufacturer who was suing a former employee for copyright and trademark infringement, and the defendant made a written characterization of one of his faucets as “formally” sharing the name of my client’s model. This seemed like an outright admission of trademark infringement, but at deposition the defendant clarified that he meant the faucet used to have that name but now had a different one. Apparently, it is a common error to confuse “formally” with “formerly.”

More recently in the realm of insurance I have learned that even the faintest ambiguity in a policy can be dispositive because the language is strictly construed against the insurer. This comes up most often with the inconsistent use of words or phrases defined in the policy itself, such as “personal and advertising injury” for commercial general liability coverage — if elsewhere the policy or a subsequent endorsement attempts to exclude coverage for simply an “injury,” such term being undefined, arguments can be made that this is an ambiguity that defeats the exclusion and requires coverage.

So once again I recommend caution out there. Of course, you can always hire me and avoid the headache!