envelope

Get more Attorney at Work!

Sign up for our free newsletter.

x

All fields are required. By signing up, you are opting in to Attorney at Work's free practice tips newsletter and occasional emails with news and offers. By using this service, you indicate that you agree to our Terms and Conditions and have read and understand our Privacy Policy.
Ruby
Get to the Point
share TWEET PIN IT share share 0

Get to the Point!

Explicit in This Post: How to Deal With Implicit Terms

By Theda C. Snyder

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.

Illustration ©iStockPhoto.com

Subscribe to Attorney at Work

Get really good ideas every day for your law practice: Subscribe to the Daily Dispatch (it’s free). Follow us on Twitter @attnyatwork.

share TWEET PIN IT share share
Theda C. Snyder

Theda “Teddy” Snyder mediates civil disputes, workplace injury and workers’ compensation cases throughout California. Teddy has practiced in a variety of settings and frequently speaks and writes about settlements and the business of law. She was a Fellow of the College of Law Practice Management and is the author of four ABA books, including “Women Rainmakers’ Best Marketing Tips, 3rd Edition” as well as “Personal Injury Case Evaluation” available on Amazon.com. Based in Los Angeles, Teddy can be found at WCMediator.com and on Twitter @WCMediator.

More Posts By This Author