Another Helping of Syntactic Ambiguity

My email in-box is overflowing with emails from Lexis notifying me of cases ostensibly relating to ambiguity. I fished from the torrent the following straightforward example of syntactic ambiguity. (Syntactic ambiguity arises out of the order in which words appear and how they relate to each other.) It’s from Active Zones of America, LLC v. SDV (USA) Inc., 2007 U.S. Dist. LEXIS 62931 (W.D. La. Aug. 23, 2007). (It’s an involved case, so I won’t attempt to provide any background.)

The contract between the litigants provided as follows:

Customer and Company (a) Irrevocably consent to the jurisdiction of the United States District Court and the State courts of New York; …

The problem with this language is that the reach of the closing modifier of New York is unclear. Here’s what the court said:

As to which courts are agreed to, SDV implicitly argues the phrase “of New York” in Section 21(a) modifies the term, “the United States District Court,” as well as the term, “the State courts,” in order to reach its conclusion that jurisdiction in the United States District Court is only proper in the “United States District Court of New York” (emphasis added) and in the “state courts of New York.” However, this Court notes from Active Zones’ argument, the noted language clearly, is subject to conflicting interpretation. The language could equally be read to mean personal jurisdiction is agreed to in any United States District Court, and the State courts of New York. The omission of the plural usage as to Courts, clouds the matter further particularly as the reference to the United States District Court can infer the plural even as to the United States District Courts of New York, of which there are many.

It’s likely the drafter thought that he or she was referring to U.S. District Courts located in the State of New York. The simplest way to accomplish that would have been to say exactly that.

Such details are hardly glamorous, but if you ignore them you could find yourself arguing the issue in court.

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.