Recently I did this post prompted by an exchange with a reader. That exchange started with my reader asking this question:
How do you stay on top of contract dispute cases that deal with imprecision of language, as you discuss on your website? Are there certain search terms you use in Westlaw? I have tried to search for cases, but I’m not sure what terms to use.
When I’m on the hunt for court opinions relevant to what I do, I search on Westlaw for opinions that feature the word ambiguity or the word ambiguous a minimum of some specified number of times. But I confess it’s been a while since I’ve done that. These days I rely mostly on stuff I find online and tips sent me by readers. The reasons for that might be of more general relevance.
Caselaw shows us how language can fail us by being so confusing as to result in a public fight. There’s nothing so compelling as a court opinion to convey the waste and expense that can result from defective drafting. That’s why I’ve kept my eye open for disputes over particular usages. For example, I was delighted to be able to round out the caselaw discussed in the MSCD chapter on “ambiguity of the part versus the whole” by adding a page discussing an English case relating to the word all. (See this post.)
But for three reasons, I wouldn’t recommend that those looking to become better informed consumers of contract language trawl caselaw looking for cautionary tales.
First, that sort of search takes time.
Second, for those who work with contracts there’s little value in learning the same lessons over and over again. How many court opinions on, say, syntactic ambiguity do you have to read to be alert to it? Not that many, I’d have thought. (My needs are a little different. It’s part of my job to try to cut through the fog of inertia by saying the same things over and over.)
And third, reading caselaw is often a serious pain in the neck. It’s not simply a matter of trying to make sense of whatever text the litigants were fighting over—you might also have to untangle a court’s botched analysis. That’s not a task to take on lightly. See for example this post on a recent Minnesota Court of Appeals case involving syntactic ambiguity.
So for most of you, wading through caselaw wouldn’t be a good use of your time. Instead, spend some of that time with MSCD, becoming more familiar with what causes fights over confusing contract language and how to avoid that confusion. If you really want a closer look at caselaw, look through the blog archives. In the posts on caselaw, I serve as your guide.