ALL CAPS In Legal Agreements – Why Are My Contracts YELLING AT ME?

WHEN YOU READ THIS DOES IT MAKE YOU THINK I AM SHOUTING AT YOU? I promise, I am not! It’s technology etiquette 101 – you should not write in capital letters unless you want that person to think you are YELLING AT THEM. Text in all caps could mean a few things: (a) someone is really mad; (b) someone is too lazy to turn off the caps lock button; or (c) someone doesn’t understand email/drafting etiquette. Heck, there’s even an article on CNN outlining the history of how using uppercase text came to be seen as shouting. So if writing in all caps is bad etiquette, why do lawyers use it in legal agreements?

Clearly, text in all caps is not the subtlest way to get your message across. To those not accustomed to reading legal agreements, seeing these provisions could make them uncomfortable or perhaps think that they are being bullied by written text. What is the logic behind this practice?

Certain legal clauses, such as indemnification and limitation of liability, are typically written in all caps. They are not meant to be read as shouting at the reader but they are meant to draw the reader’s attention to them. This is because case law has held that the drafting party has a duty to draw the other party’s attention to these types of clauses because they can significantly affect a party’s rights under an agreement. As a result, these clauses need to be made conspicuous. Most lawyers do this by using all uppercase letters.

Is all of this uppercase mumbo jumbo really necessary? Yes and no.

Yes it is necessary to ensure that certain clauses are brought to the reader’s attention. If they are not, a court could rule that the clause is void. Not a great outcome if the clause in question limits your liability to $100 and you are being sued for a lot more than that. Yet it is not necessary for the clauses to specifically be written in uppercase. There are other ways to make sections of the document stand out. They could be highlighted, written in a different colour, or symbols could be used to get the reader’s attention. Yet, somewhere along the line, lawyers decided to write them in all caps. So that’s where it stands.

So don’t take offence if the contract your lawyer drafts for you has clauses in all caps. She is not YELLING AT YOU; she is just looking out for your best interests.

About Amy Grubb

Amy Grubb is a business lawyer with over a decade of experience helping her clients save money with their legal contracts. To learn more about her services, visit her website or email her at amy@grubblaw.ca.

Note: This article provides an overview only for informational purposes and does not constitute legal advice.

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