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With all due respect? the Exclusion zone

Every Issue

Cite as: (2007) 81(7) LIJ, p. 98

One of the more pointless tasks often assigned to young solicitors is the drafting of exclusion clauses, based on the laughably optimistic assumption that young solicitors are capable of any of the things they have listed on their resumes.

It might seem that it would be unwise to trust a young solicitor with such a seemingly important task, but in reality it hardly matters who writes an exclusion clause, or what goes into one, because no one ever reads them.

Let’s face it, people do not read the small print on anything, which is in part why many of us have jobs. If people actually read the part of the instruction booklet (or in the case of male people, any part of the instructions at all) that warns you that you should never, under any circumstances, stick a fork into the back of the TV to improve the reception, most of the personal injuries lawyers on the planet would be of no use at all.

The point is, no one bothers with that stuff. If I took a survey of all the solicitors in the country – most of whom constantly warn clients not to sign anything without reading the fine print – and asked how many of them have read their entire mortgage agreement, I bet almost all of them would say they have.

They’d be lying, of course. We don’t even read the mortgages we write, so why would we bother with the ones someone else got paid to draft?

There is a good reason why no one reads exclusion clauses, of course – they don’t matter.

No matter how stupidly people behave, and no matter how specific your exclusion clause is, it won’t work.

If an intellectually unremarkable individual manages to come up with a unique way to hurt themselves and there is a deep-pocketed corporation with a connection to the plaintiff (and by that, I mean that the plaintiff has a vague recollection of hearing about the corporation from a guy at the pub, if he has purchased a product of theirs) any judge worth his or her salt will be able to find a chain of causation.

None of the above, of course, will be of use to young solicitors, because even if people don’t read them and judges ignore them, these clauses still have to be written.

So how do we write such clauses? I’m glad I asked, because I wrote many such clauses during my stint in local government, none of which – I am proud to say – have ever been able to be deciphered.

This is in fact the key to writing good exclusion clauses; if no one knows what you meant, it is very hard to apportion liability. We experienced lawyers refer to this technique by the Latin term “gibberish”.

Now, to avoid confusion, we are talking a much higher level of gibberish than you produced for your assignments in law school.

You need something that will turn people to stone if they look at it without squinting, something that scientists will in future years warn children not to look at lest they go blind.

It is always a tip to go with a foreign language, preferably one that has been dead for a few thousand years, like elvish (although be careful with that – there are some geeks out there who have bothered to learn elvish from Tolkien’s books).

In conclusion, let me finish by saying: the preceding column contains jokes (warning: jokes may not appear funny to all readers; neither the LIJ nor the author makes any guarantee, nor gives any undertaking, that the column or any part thereof will be funny, useful, spelled correctly or otherwise valuable in any way) and should not be taken internally or at all seriously, and any reliance placed thereon by any party living or dead is at their own risk because they should know better and it serves them right, so there.

The LIJ accepts no responsibility for any loss damage injury or death caused by reading this column or warning, including but not limited to turning to stone. SHANE BUDDEN is a legal officer with the Queensland Building Services Authority. This column first appeared in the Queensland journal Proctor.

Miss Demeanour’s guide to life, love, law – and disorder

Dear Miss Demeanour

The curtain has fallen on the financial year ... note the theatrical flourish to euphemise what was a shocker of a month. Though being a second-year solicitor, I’m still quietly chuffed each time I need a frozen meal or a cabcharge: the firm really does appreciate me.

I dealt with the stress responsibly. I spent. I shopped at boutiques I thought only senior associates or HR managers could afford. I took my girlfriend to a restaurant where prices equalled my charge-out rate. I single-handedly greased the wheels of commerce and, being a true blue Aussie, I did it all on plastic.

And, as surely as I vow never again to let alcohol pass my lips after the firm mid-year bash, the credit card bill has arrived. Help!

Regards, Financially Embarrassed

Dear Financially Embarrassed

You have a worrying focus on material things. You need to jump off the rollercoaster of work/spend/work and seek balance in work, home and health. Admittedly, perhaps now is not really the time to be peddling such feel-good mumbo jumbo. Won’t help stave off the creditors now, will it?

Fret not, it’s July! Time for a pay rise and, hopefully, a bonus. Remember: most lawyers drop out not too long post-admission to find themselves through merchant banking. You’re in demand so make the most of it. Stride into your review and sell yourself. I’ve heard some resort to exaggeration or even lying through their teeth. I, ahem, wouldn’t know.

Your remuneration cup should runneth over, keeping you from the brink of insolvency.


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