A Suggestion for Those Litigating the Meaning of Contract Language

For a while now I’ve been harping on about how courts should admit expert testimony on ambiguity. (For my most recent statement on the subject, see the bottom of this post.) But from private conversations, I’ve gotten the sense that even if admitting expert testimony on ambiguity makes sense, judges aren’t keen to do anything that would add to paperwork and prolong trials.

So I’m prepared to stop beating what appears to be a dead horse. But there’s a way to get expert testimony in through the back door. I suggest that what matters is not so much that an expert be seen to be on hand, but rather that someone provide a coherent analysis.

From my sporadic contact with the world of litigation, I recall the notion that judges are only too happy if litigators make judges’ lives easier by providing them with an analysis that they can call their own. I suspect that when it comes to litigation over the meaning of contract language, that doesn’t happen as often as it should.

Consider the recent opinion of the North Carolina Business Court in Medfusion, Inc. v. Allscripts Healthcare Solutions, Inc. that I discuss in this post. Given that the court’s analysis makes no sense, I suspect that the lawyers representing the plaintiff didn’t offer in their pleadings an analysis that laid out clearly the relevant English-usage facts of life.

And I suspect that that happens routinely—that litigators are quick to assume that they’re equipped to analyze the meaning of contract language, even though contract language is a much more limited and stylized kind of writing than that used in litigation. If you want to get a sense of how subtle things can get, have a look at MSCD chapter 11 (Ambiguity of the Part Versus the Whole).

So I recommend that anyone who’s litigating contract language, or considering doing so, arrange a preliminary no-cost consultation with an expert in contract language to see what they think of the language at issue. If they have nothing to add, you can go on your way. But they might well have something valuable to add, in which case it will be worth paying for. You would then weave that analysis into your pleadings.

It might be a little cute, but one way to have the expert speak directly to the judge would be to have the expert publish their analysis, in a blog or periodical; you would then cite that publication in your pleadings.

Who’s an appropriate person to consult? You might want to stick with someone who specializes in contracts. If you ask someone with a background in litigation, you risk getting just another litigator perspective. (And go here for an example of what can go wrong if you use as an expert someone with a background in litigation.) Similarly, a linguist or English professor won’t have a grounding in the unique environment of contracts.

(Disclosure: Yes, I specialize in contract language. Yes, every so often I’m retained to help in contract disputes.)

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

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