In contracts and other types of legal drafting, a “topic sentence” for a paragraph is typically a general proposition (stating a duty or a right) that is elaborated with various specifications and exceptions over the next several sentences.
As in all writing, contractual paragraphs should be cohesive. Yet because we generally inherit our contracts—at least their starting points—we’re at the mercy of our predecessors for achieving paragraphs that keep related material together, free from digressions. A good way of testing cohesion is to place a boldface topical heading (a word or phrase) at the outset of each paragraph and then to test both the heading and the paragraph for pertinence and accuracy, refining the one or the other.
If you haven’t tried this as an independent exercise, concentrating on it alone, you might find it a real eye-opener. The clarity and simplicity of good headings help both writer and reader stay focused, ensuring that each paragraph contributes a distinct point to the overall transaction. In doing the exercise, you may find yourself moving clauses radically from one part of a contract to another. You’ll probably catch some duplications and even some contradictions.
Place the headings first, and then prepare a table of contents. As you do, you’ll probably also find opportunities to improve the architecture of a contract. That amounts to another round of surgery on the document.
Mastering the art of contractual headings makes revision and editing much simpler. If each paragraph revolves around a clear central idea, it becomes easier to spot off-topic clauses. Your contracts will become more coherent and compelling, and you’ll be laying the groundwork for happy clients and transactional success.
After supplying headings, it’s fine to add or maintain a provision that says, “Headings are for convenience only and do not affect the interpretation of this Agreement.” You may legitimately want to avoid having headings become an argumentative basis for litigation. But the solution certainly isn’t to omit all headings.
For some excellent before-and-after examples, see Garner’s Guidelines for Drafting and Editing Contracts § 15, at 42–49 (2019).