What does "is" mean? The Importance of Drafting

In a meeting yesterday with a client, he asked me why we couldn’t agree for the attorney for his soon-to-be-ex wife to draft the final divorce decree so she would have to bear the cost of the attorney’s time for this activity. He wants to pinch the pennies and avoid paying me to do this.

I told him the story of "Joe" — not his real name, obviously — who chose not to hire an attorney and let his wife’s attorney do all the work. The wife’s attorney drafted their agreement and drafted in creatively, even craftily, such that Joe didn’t get exactly what he thought he was getting.

An attorney can advocate for a client in just the simple drafting of the wording of a document. Sometimes this wording can mean the difference in having an enforceable court order or a piece of paper that is virtually meaningless.

Take the example given by Sam Hasler in the Indiana Divorce and Family Law Blog:

Take this scenario: parties agree that one gets Y unless x happens. Being even more specific, assume that one party agrees to give the other half a pension, unless the other married.

What happens if the other party does not marry but lives with someone? Does the other party get the share of the pension?

Answer: Yes.

You get stuck with the language you put into an agreement. No better reason exists for getting a lawyer to at least read any agreement put together during any case. A lawyer provides to the parties an objective, critical for catching the problems that might arise out of a proposed agreement.

Married means married. If the Decree/agreement says married, then
living together does not matter. She gets the pension.

One of the most common examples that most people remember is President Clinton’s lawyerly dispute about the meaning of the word "is" during his grand jury testimony. Consider Timothy Noah’s commentary in Slate magazine on September 13, 1998:

Years from now, when we look back on Bill Clinton’s presidency, its defining moment may well be Clinton’s rationalization to the grand jury about why he wasn’t lying when he said to his top aides that with respect to Monica Lewinsky, "there’s nothing going on between us." How can this be? Here’s what Clinton told the grand jury (according to footnote 1,128 in Starr’s report):

"It depends on what the meaning of the word ‘is’ is. If the–if he–if ‘is’ means is and never has been, that is not–that is one thing. If it means there is none, that was a completely true statement….Now, if someone had asked me on that day, are you having any kind of sexual relations with Ms. Lewinsky, that is, asked me a question in the present tense, I would have said no. And it would have been completely true."

In other words, President Clinton rationalized that "is" meant in the present moment, and he distinguished it from meaning over the past spanse of time.

I stress to clients the importance of having their lawyer draft the decree so that they know their best foot is put forward and as much of the advocacy of the nuances of small words — like "is" — can be avoided or massaged to their favor.

Categories