We lawyers harbor no illusions about whether persons other than lawyers draft contracts or other documents. We know they do. We also know that not all lawyers have mastered the art of clarity in drafting. So there are many documents in existence—written by lawyers and nonlawyers alike—that may not perfectly convey the intended meaning. Unintended, and sometimes ridiculous, consequences may result. The following is an example.
I have been working with a national nonprofit entity on revising its bylaws. This particular nonprofit is one of more than 100 parent breed clubs affiliated with the American Kennel Club. This is a volunteer effort with input from various members. In revising the bylaws, the club reviewed the bylaws of other parent clubs. One of the committee members is also involved in a second parent breed club and suggested borrowing language from that club’s bylaws, relating to which members of the club may serve on the board and hold office. Sounds simple enough but poor drafting on the part of the other club may cause it, and this club if it were to adopt the language, unintended problems.
The club, like the various other parent breed clubs, has different classes of membership, including individual and household. Individual members have the right to vote and hold office. A household membership consists of two adult members residing in the same household, each having the right to vote and hold office.
Apparently, the second club had an issue with a husband and wife team serving on its board for an extended period of time, allegedly placing a stranglehold on the organization. The second club dealt with the problem by inserting in its bylaws this language: “Only one household member may hold office at a time.” Given the context in which the language was adopted, its meaning seems clear. On reflection, it is not. The board of the club that is revising its bylaws is comprised of seven members, six of whom currently are household members. None of them, however, reside in the same household. If the club were to adopt the quoted language from the second club’s bylaws, all but two of its directors would be required to resign. Why? Six directors are household members and, per the revised bylaws, “only one household member may hold office at a time.” The one individual member and one of the six household members could remain on the board. Although this seems ridiculous, this would be precisely what the bylaws would require.
A little thought could have solved this problem at the drafting stage—thinking about whether the language as drafted could reasonably be construed to mean something else entirely. It would have been just as simple and more effective for this second club to have inserted language to the following effect in its bylaws: “Members in a single household shall not have the right to hold office concurrently with one another.” The perceived problem with the husband and wife team is addressed and no problems with other household members are created.
The key to clear drafting is making sure that your words say what you intend them to say, nothing more and nothing less. A clear drafter should be able to boast the following (to paraphrase Dr. Seuss’s beloved Horton, the elephant who hatched the egg):
I meant what I said and I said what I meant,
I created no ambiguity, not any per cent!
—Melanie S. Tuttle