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A Wealth of Ammunition for Haters of the Term 'And/Or'

You're a lawyer. You are forced to read briefs, motions, emails, letters and more from fellow lawyers and others every day. Many of these people like to use the term "and/or." And you do not like it.

You keep telling your associates and anyone else who will listen that the use of "and/or" is unnecessary and damaging to the sentence in which it is written, but you get nothing but blank stares back. "Says who?" your colleagues seem to be saying. Now, courtesy of Ted Tjaden on the Slaw blog, you have your answer: dozens of leading authorities and court opinions.

Tjaden has compiled what he believes to be a fairly complete list of authorities that support the position that "and/or" should never be used in legal writing. That's never, as in not ever. As Tjaden notes, "and/or" should be stricken from your active vocabulary because "(i) its use can result in uncertainty, (ii) it is not a real word." Tjaden has assembled a lengthy list of authorities supporting this view, including:

Chicago Manual of Style:

• and/or. Avoid this Janus-faced term. It can often be replaced by and or or with no loss in meaning....

Elements of Style:

• and/or. A device, or shortcut, that damages a sentence and often leads to confusion or ambiguity.

The Redbook: A Manual on Legal Style:

• The slash ... is best known as the star character in two grammatical abominations: and/or and he/she. It is especially unfit for legal writing because it is inherently ambiguous.

The Elements of Legal Style:

• and/or.  “much condemned conjunctive-disjunctive crutch of sloppy thinkers”

And so on (including some shots fired at "and/or" in French).

Tjaden also provides a lengthy list of law review articles on the topic, and then moves on to a list of court opinions dating back to 1909 that support killing off the term "and/or." See, e.g., Cochrane v Florida East Coast Ry Co, 145 So 217 at 218-19 (Fla 1932) ("and/or" is an "inexcusable barbarism" which has "no more place in legal terminology than the vernacular of Uncle Remus has in Holy Writ"); Bell v Wayne United Gas Co, 181 SE 609 at 618 (W Va 1935) ("and/or" is a "baffling" and "disingenuous modernistic hybrid, inept and irritating"); Employers Mut Liability Co v Tollefsen, 263 NW 376 at 377 (Wis 1935) ("and/or" is a "befuddling, nameless ... Janus-faced verbal monstrosity ... the child of a brain of some one too lazy or too dull to express his precise meaning, or too dull to know what he did mean, now commonly used by lawyers in drafting legal documents. ...").

Tjaden provides plenty more ammunition for "and/or" haters in the article. Load up here with the full article.

Posted by Bruce Carton on July 28, 2011 at 04:26 PM | Permalink | Comments (10)