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Topic & transition sentences in case explanations part 4

By Wayne Schiess

In place of the transition words and phrases, the writer has now used a transition that captures how the case relates to the previous one in somewhat substantive terms. Notice how the boldface language ties the current case back to the previous with repeated words and phrases.

Using several strong formatting techniques will generally make a disclaimer conspicuous. Gravely v. Kirkland, 1999 WL 498201 *2 (Tex. App.--Beaumont July 15, 1999, pet. denied). In Gravely, a consumer bought a defective mower and sued the maker for breaching the implied warranty of merchantability. Id. at *1. The maker relied on a disclaimer of the implied warranty of merchantability, which was on the warranties page of the owner's manual. Id. The disclaimer was separated from the warranty text by a solid line, appeared under the all-capitals heading ?DISCLAIMER OF FURTHER WARRANTY,? and was entirely in boldface type. Id. at *2. Despite a jury verdict for the consumer, the appellate court reversed and rendered, holding that the maker's disclaimer was conspicuous. Id.

Even without several formatting techniques, a single, strong format-such as all-capitals text-can be conspicuous. W. R. Weaver Co. v. Burroughs Corp., 580 S.W.2d 76, 80-81 (Tex. Civ. App.--El Paso 1979, writ ref'd n.r.e.). Weaver contracted with Burroughs to purchase software. Id. at 77-78. (The parties had other agreements, but the software contract is the only one relevant here.) Weaver later sued Burroughs for, among other things, breach of the implied warranty of merchantability. Id. at 79. The contract contained a disclaimer, presented in its own paragraph and in all-capitals text. Id. at 81. The appellate court reversed the trial court's summary judgment for Weaver, in part because it concluded that the disclaimer was conspicuous. Id. at 81.

But even strong formatting techniques can fail if the disclaimer text itself is not distinguished from the surrounding text. Cate v. Dover Corp., 790 S.W.2d 559, 560 (Tex. 1990). Cate bought car lifts from Dover, then sued when they did not operate properly. Id. Dover's warranty provision was, as a whole, conspicuous: it had a heading in a colored font and larger size and was displayed on its own page. Id. But the disclaimer was embedded in this warranty provision, in the same typeface, color, and size as the rest of the warranty language. Id. at 560, 563. Therefore, the Texas Supreme Court reversed a summary judgment for Dover, holding that the disclaimer was not conspicuous. Id. at 561-62. The disclaimer, the court said, was ?hidden among attention-getting language purporting to grant the best warranty available.? Id. at 560. The court also held that if the buyer had actual knowledge of the disclaimer, that would override the question of conspicuousness; it placed the burden of proving actual knowledge on the seller. Id. at 561-62.

This stage 4, and it's where I want my students and all legal writers to end up. It's hard work, but it makes the text easier to read.

Full post as published by Legalwriting.net on January 28, 2008 (boomark / email).