Expert testimony is the biggest single line item of litigation expenses other than attorneys’ fees in most cases. A judge has some expert qualifications (as an experienced lawyer, at least), yet is free and, ex ante when the contract is being drafted anyway, neutral.

Allowing or denying expert and non-expert testimony on the ambiguity of contract clauses greatly ups the ante very early in litigation when other facts may be mostly uncontested, and while contract claims include the biggest dollar cases, they also include hordes of very small dollar cases (tort cases tend to have high damages, but rarely the highest damages in single transactions).

Ambiguity typically comes up at motion to dismiss or motion for summary judgment stages in a case. So, allowing a hearing to get testimony on something not available via judicial notice, can turn a $2,000 motion case into a $12,000 hearing case. Contract law doctrine is carefully scuplted to avoid just such evidentiary disputes.

My dad once had an English professor at the Univeristy of Texas testify about the effect of a comma in a statute. The case turned on the meaning of the comma. I think it was a question of whether the clause in question was restrictive or not. I’ll have to ask him about it.

Chris