LawProse Lesson #226: “including but not limited to”

LawProse Lesson #226: “including but not limited to”

Lawyers often ask why we so commonly see the phrase including but not limited to—or variations such as including without limiting the generality of the foregoing. Doesn’t including itself imply but not limited to? The answer is yes, of course. But legal drafting isn’t served well by implications, as opposed to explicit denotations. It’s always subject to hostile misreadings by opposing parties who will argue that implications aren’t enough. And courts have been known to accept these arguments, as by holding that including can introduce an exhaustive list—a result that no competent drafter could have intended. Then there’s the question of verbosity: five words (including but not limited to) or eight words (including without limiting the generality of the foregoing) in place of a single word: including. Verbosity brings down the dark cloud of obscurity over the legal instrument as a whole. Drafters who use these phrases are typically addicted to other, similar pleonasms. The best simple solution is to define including as meaning “including but not limited to” in every legal instrument in which the word is used—among the housekeeping provisions. Then you rigorously avoid the cumbersome phrasing each time you want to introduce examples. Will judges take such a definition seriously? Generally, yes. I defy anyone to produce a case in which this definition hasn’t worked, so that including defined in this way has nevertheless been held to introduce an exhaustive listing. Of course, if a judge is going to override an interpretive direction so offhandedly, there’s no help for it. Willful, result-oriented judges who don’t take governing texts seriously cannot be reined in with skillful drafting. What I’ve outlined here is only a first step—a rudimentary but helpful protocol. Then there’s the matter of ensuring that the genus term preceding including is the right one; that the examples following including are truly useful to a later interpreter of the instrument; and that the entire provision has been written as precisely and readably as possible. My model provision: “7.5 Definition of ‘including.’ In this contract, including means ‘including but not limited to.’” That’s all you need. Just once. Then search for the word including throughout your long contract to ensure that you’ve met the other standards outlined in the preceding paragraph. Having taught contract-drafting for more than 25 years to lawyers all over the world—including legal departments at more than 100 major corporations—I know that many straightforward protocols can greatly enhance the skill with which documents are prepared. This LawProse Lesson gives but one simple example.   Further reading: Garner’s Dictionary of Legal Usage 437-38 (3d ed. 2011). Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 132-33, 225-33 (2012).

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