With Syntactic Ambiguity, Avoiding the Accident Spares You the Autopsy

Neal Goldfarb has unleashed on the world this post comparing how the judicial principles of interpretation that have a bearing on syntactic ambiguity compare with how English is actually understood.

It looks rigorous as heck, but I haven’t read it yet. Why not? Well, it is quite long, but the main reason is that Neal’s a litigator and I’m a contract drafter. Allow me to explain.

Because Neal’s a litigator, his principal interest is, presumably, trying to make sense out of contract language that was sufficiently confusing that it resulted in a dispute. It follows that he’s particularly interested in the arbitrary “rules” that judges invoke to resolve ambiguity. He’s made a point of being quite a student of linguistics, as is evident from his blog posts.

By contrast, my needs are very different, and so is my approach. For purposes of drafting contracts, I just want to stay out of trouble. Although I act as expert witness in contract disputes, my principal responsibility is avoiding messes rather than clearing them up. For that, I don’t need to debate the relative merits of alternative interpretations. Instead, I have to be able to recognize, and eliminate, those alternative interpretations that are potentially troublesome. That still leaves room for mind-boggling complexity, but it doesn’t involve the sort of analysis on display in Neal’s post.

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.