Appropriate Use of “And/Or”?

In MSCD 8.55 I recommend that you steer clear of and/or unless using it would spare you some verbiage. Well, consider the following basis for terminating an employee for cause:

the Employee is charged with any crime that (1) is punishable by a custodial penalty, instead of or in addition to any fine or other non-custodial penalty, or (2) is related to the Employee’s employment

Conceivably, an employee charged with a crime that is both punishable by a custodial penalty AND related to his or her employment could claim that that crime doesn’t fall within the scope of the provision, which phrases the two criteria as alternatives. That’s a hopeless argument, but maybe one would nevertheless want to preclude the employee from being able make it.

The two criteria are, however, sufficiently wordy that the structure A or B or both wouldn’t work. The best alternative I could come up with on five minutes’ thought is “or (3) satisfies both of the preceding criteria.” That seems cumbersome; I’d prefer and/or. But the question is whether precluding a ludicrous interpretation is worth the nuisance of adding and/or: it’s a bit unclear, and it could well provoke comment. I’m inclined to do without and/or or any wordier alternative

What do you think?

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.