Important contract terms must be conspicuous; they need to stand out from the rank-and-file boilerplate.
This is an old rule. In 1810, a judge held that a contract was unenforceable because it “called attention to everything that was attractive, and concealed what was calculated to repel.” Butler v. Heane (1810).
Lawyers suck at ‘calling attention’ in type. When they try, they draft entire paragraphs of capital letters. These all-caps paragraphs are harder, not easier, to read. They would be hard to read in well-kerned Helvetica. If only we were so lucky. What we really see are caps-lock agglomerations of Times New Roman.
Why is all caps so painful? Words in lowercase each have a unique shape; a unique identifier for the reader. Words in all caps all have the same shape: rectangle. Instead of recognizing word shapes, we’re forced to identify each letter. one. at. a. time.
All-caps is not just bad typography, its bad lawyering. “Lawyers who think their caps lock keys are instant ‘make conspicuous’ buttons are deluded.” In re Bassett, 285 F. 3d 882 (9th Cir. 2002)(Kozinski). This is reflected in the Uniform Commercial Code. The UCC rules for “conspicuous” typesetting will tolerate all-caps headings, but not body text:
Headings must be “in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color.” UCC § 2-103(1)(b)(i)(A). Body text must be “in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.” UCC § 2-103(1)(b)(i)(B).
Since all-caps paragraphs are not specifically permitted by the UCC, why make your contract unreadable and potentially unenforceable? If you have a word processor, you have a slate of pre-approved options:
- Larger Font
- Put your clause in a box
- Different typeface
- Different color
Please try any of these alternatives. A paragraph of capitals is like a shouting cat-lady: Conspicuous, but no Communication.