The ever-alert Steven Sholk has informed me of another legal opinion discussing syntactic ambiguity. This one was issued by the Tenth Circuit Court of Appeals and addresses how much of a provision in an insurance policy was modified by a closing modifier. (Click here for a copy of the opinion.)
I’m not particularly interested in what the court held, because my goal as a drafter is to avoid getting into such scrapes. But this case is yet another indication that if you want to reduce the risk of unpleasant contract-language surprises, you’d be advised to become familiar with the sources of syntactic ambiguity and how to avoid them. Chapter 11 of MSCD goes into that in excruciating detail.
Incidentally, I find that ambiguity is different from other drafting issues I deal with, in that discussing it doesn’t require hacking through legalese. Instead, it’s more of a puzzle and as such can be simpler to explicate. I gather that others share my interest, as the session on the topic at the recent ACC annual meeting was one of only two sold-out sessions.
Despite what the Tenth Circuit thinks, The ambiguity in this case has nothing to do with modifiers or modification. Rather, it relates to whether a list of items in the contract was recursive — i.e., whether it was a simple list (as in example 1) or a list that had a list embedded in it (as in example 2).
1. A or B or C or anything similar.
2. A or B or (C or anything similar).
Because the ambiguity has nothing to do with modification, the court is way off base when it invokes the rule of the last antecedent. As it is when it describes the Groucho Marx “elephant in my pajamas” line as ungrammatical.