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Keep Your Eye on the Ball! (A Legal-Writing Exercise) -
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Keep Your Eye on the Ball! (A Legal-Writing Exercise)

foul-ballsIt’s been a long, cold winter here in Minnesota. But signs of spring are everywhere. One of my favorites is baseball’s return. This got me thinking about some rather awful legal writing I came across last summer while taking in a Twins game. It occurred to me that I might use it as a real-life example of how to fix bad writing, instead of just ranting about bad writing. Please comment below on whether (and why) I struck out, or at least put the ball in play. (I don’t hit too many home runs.)

If you look at the back of a ticket to a baseball game, you’ll usually find a waiver. It purports to advise you that by deciding to come to the game, you agree to waive your right to sue the league, team, or league employees if you get hurt at the game from a typical baseball event—e.g., a foul ball or a bat flying from a batter’s hands.

But here’s the problem: case law involving waivers tells us that it’s important that a waiver be clear in describing just what rights a person is giving up—one must make an informed choice to waive one’s rights. If the waiver isn’t understandable to a layperson, some courts have held that the rights are not in fact waived. Unlike a lot of legalese, this stuff matters.

Here’s one part of the waiver on the back of my Twins ticket:

User [the ticket holder] assumes, for him/herself as well as each minor in the charge of such User (“Minors”), all risk and danger incidental to the game of baseball, whether occurring prior to, during, or subsequent to the playing of the game, including but not limited to the risk of injury by thrown or broken bats or fragments thereof, thrown or batted balls, or items thrown or injuries otherwise caused by other spectators, and other hazardous or potentially harmful activities incident to a sports event. User further agrees, for him/herself and Minors, that [list of all legal entities and their agents, etc., that one might sue] are not liable for injuries or loss of/damage to property resulting from such causes.

Okay, time to swing away.

“User” is hardly the best noun one could choose to describe the ticket holder. The first time I heard “User” was in middle school. It was a broad pejorative for someone whose romantic intentions were, um, opaque. Whenever I see it now, I’m momentarily cast back into middle-school drama. Even without that connotation, “User” still comes up short. What is the fan at the game using, exactly? Is there a better alternative to “User”? Let’s see . . . oh, yes: “You.”

“For him/herself” is pretty brutal too. And it’s not even needed if we replace “User” with “You.” Sometimes when you fix one legal-writing problem, another one magically disappears.

“Each minor in the charge of such User.” I’m fond of the antiquated phrase “in the charge of.” But shouldn’t our pursuit of clarity lead us to a simpler verb? That would allow the active voice, and get rid of that awful “such” at the same time. As many others have pointed out, “such,” as a pointing word, could easily be replaced with “the”.

Next, we are confronted with a long, flabby passage that, in classic form, tries to ensure that it doesn’t exclude anything important by trying to list every possibility. Besides making your writing nearly unreadable, I’ve always thought that lists that try to cover everything by their nature wind up leaving something out.

First, “risk” is a recognized legal term, but is “danger”? Not so much. Does including “danger” help at all? I think not.

“Incidental to the game of baseball” is classic legalese, and most folks won’t understand what that means. When’s the last time you heard someone say that phrase, “incidental to”? Have you seen it in the paper lately? Me neither.

Instead of the awful “prior to, during, subsequent to,” why not just simply describe the period of time when the waiver is effective?

I’ve always disliked “including but not limited to,” partly because when I see it I know a list is coming, but also because it’s clunky and confusing to a layperson. Why not just use “for example” or “e.g.”, neither of which suggest that what follows is an exclusive list.

Let’s also get rid of “fragments thereof.” One should jump at any chance to eliminate “here-and-there” words (“herein, thereafter,” etc.) that add nothing but confusion. “Broken bats” makes sense to a layperson—“fragments thereof” doesn’t.

Finally, assumption of risk and agreeing that the other party is not liable for the risk are not exactly the same, but they lead to the same legal status for the person at the game. Does it make sense to list both? Why not choose the one that a layperson is most likely to understand?

So, here’s my revised version:

While you are at the ballpark, you, (an adult ticket holder) and any children you bring to the game, agree to give up the right to sue MLB, the Twins, and their employees (“us”) for any loss or injuries that you or the children might suffer that relate directly to baseball, for example, flying balls, broken or thrown bats, or players entering the seating area during play. You also give up your right to sue us for the actions of other fans.

This revised version is not only easier to read, it’s much easier to write. Ticket holders who read it would understand what it means—including what legal rights they are giving up by attending the game. If you’re MLB or the Twins, isn’t that what you were trying to accomplish with the waiver in the first place?

Andy Mergendahl is a privacy officer at a large commercial bank. He’s also been a contracts negotiator, a solo practitioner, and a judicial law clerk. You can read more of his posts on legal-writing and other topics at lawyerist.com/author/andymergendahl

(Photo by Dara Gocheski / CC BY 4.0)

  • James April 9, 2014, 6:30 am

    Amusing read, thanks. A question – are ticket contracts like these legal in the US? After all the user has received the conditions after they have bought the ticket and the contract has been formed. Is this not arguably antecedent conditions that are not enforceable, especially when they relate to a total release of rights?

    Also, what if the kids meet you at the game, on which case you did not bring them and the undertaking would not apply?
    The joys of drafting but in good drafting there is a reason for certain language whether everyone at the ballpark understands it or not….

    Kind regards, James

    Reply
    • Andy Mergendahl April 9, 2014, 8:08 am

      James,
      Thanks for your comment; I’m happy to have amused you.
      Your first question relating to the legal efficacy of ballpark ticket waivers raises an interesting question, but not one my post attempted to answer. This is a legal writing blog, not a contracts law blog. But I’m sure you can research the answer yourself.
      Your second question amused me, so thanks for that. While a lawyer might try the argument you describe, I seriously doubt it would gain any traction. I clerked for a lot of judges, and not one would have greeted that argument with anything but disdain. That kind of hair-splitting just doesn’t work, in my experience.
      Your final comment exemplifies a perspective that is at the heart of our problem: the law is too complex, too nuanced, and too elite for the ordinary person to understand, so trying to write for the ordinary person makes no sense. I disagree with that perspective, because I think it creates big problems for lawyers and clients. For example, if you look into the case law, I think you’ll find that waivers that are incomprehensible to the person waiving his rights are flawed, sometimes fatally.

      Reply

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