When I’m overcome with the urge to consider use of and/or in legal writing, I now know where to go: to this post on Slaw by Ted Tjaden, national director of knowledge management at the Canadian law firm McMillan.
I knew right off that Ted had left no stone unturned in his research, as he starts off by citing my 2001 book Legal Usage in Drafting Corporate Agreements and also cites my 2006 law review article with Alan S. Kaye. Please resist any temptation to consult those works yourselves—they’ve been supplanted by MSCD, which Ted also cites, along with umpteen other authorities. But I do stand by my assertion in LUDCA that and/or is “one of the more benign drafting evils”—it wouldn’t appear very high up in my list of annoying or confusing drafting usages.
I agree wholeheartedly with Ted that “it is not always obvious how to best replace ‘and/or’ with either ‘and’ or ‘or’ or some other word or re-phrasing.” In fact, and/or is a sideshow—the real challenge is eliminating ambiguity in and and, especially, or. That’s a notion I expressed in this April 2010 post on AdamsDrafting. It was prompted by a fresh decision of the Minnesota Court of Appeals, Carley Foundry, Inc. v. CBIZ BVKT, LLC, No. 62-CV-08-9791 (Minn. Ct. App., Apr. 6, 2010). Add that to your list of and/or caselaw, Ted!