Lawyers constantly define terms, often poorly. For detailed guidance on defining effectively, together with lots of before-and-after examples, see pp. 357–79 of Garner’s Coursebook on Drafting and Editing Contracts (2020).
In the short space we have here, we’ll give you seven brief pointers:
- Define primarily to prevent repetitions of cumbersome language. For example, if you define including to mean “including but not limited to,” you’ll never have to use that awkward phraseology again—or any of its ugly variations (for example, including without limiting the generality of the foregoing).
- Use precise definitional terminology: means, includes, and does not include. Avoid shall have the meaning etc.
- If you create a defined term, then use it. (You know how often this rule is broken.)
- Avoid burying substantive rules within definitions. For example, “‘Labor’ means an employer, contractor, or contractor’s assistant, provided that the contractor obtains the appropriate work order before hiring an assistant and completes the work in timely fashion.”
- Avoid tautologous definitions (instead of “‘Rights’ means rights, remedies, powers, and privileges,” write this: “‘Rights’ includes remedies, powers, and privileges”). When you say that rights means rights, you’re begging the question.
- Never change the fundamental denotation of a word by defining it counterintuitively (for example, don’t define dog to include all reptiles).
- Never seek to deceive others with tricky definitions. (You’ve seen this: it’s a horrid practice.)
That’s our definitive word on the subject.