Advocates frequently confuse “implicit” and “explicit” in writing and particularly in oral argument. This compounds the problem with these concepts.
“Implicit” Is Implied
I once handled a case where a commercial landlord and tenant were arguing about whether a “per square foot” rental price referred to a monthly or annual amount. Was the meaning of this term understood unequivocally among real estate professionals and experienced lessees?
Both “explicit” and “implicit” mean that the definition is unquestionable. That’s why these words get mixed up. The difference is that an implicit meaning is embedded in the language.
An implicit term is not spelled out. It is understood; the context implies the meaning. If your legal argument is that everyone knew what was going on even though no one mentioned the specifics, you better have evidence to back up that claim. That might be prior communications between the parties, professional books and journals, or an expert’s testimony.
But, of course, people often disagree. To avoid this kind of battle, make sure your terms are explicit.
“Explicit” Is Exact
Explicit language clearly states the details, leaving nothing to interpretation. The lawyer’s job when drafting is to imagine all the what-ifs to avoid interpretation gaps. One way to cover the bases may be to explicitly reference an industry standard, if such a document exists: “All terms used herein have the definitions used by the National Organization of [industry].”
Implicit in legal competence is the ability to anticipate a situation’s potential pitfalls. Your job is to explicitly protect your client.
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