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.
Not so fast, friend! You can’t write a building construction code that avoids building collapses without knowing what makes buildings collapse, and to know that, you need to “autopsy” collapsed buildings. Ditto wrecks of contracts, i.e., lawsuits. That said, Neil’s post is definitely tough sledding, although the diagrams bring back happy memories of the mobiles I used to look up at while lying supine in my crib. No wonder I’m drawn to linguistics!
Not so fast yourself! To extend your analogy, I’m exquisitely aware of what makes buildings collapse, but my priority isn’t determining which defective building materials are the least defective. Instead, I want to eliminate all defective building materials.
Ken, we come back to an issue on which I have not read any practitioner agreeing with you, and plenty disagreeing. No matter how good the drafting, a party may wish to argue for a particular interpretation. It is useful to those of us who both draft and provide legal advice to know what the approach of the courts is likely to be and, where appropriate, to draft in a way that takes account of that likely approach.
To attempt an analogy, you provide us with the instruction manual on how to drive the car. But experienced drivers know they have to do more than follow the rules. They have to anticipate the other idiot, build in a margin of error, adjust for fatigue, give plenty of warning if they want to stop on the highway, etc. They may also have to justify their driving behaviour to a court if they are in an accident (not to mention deal with road rage from the other guy, irrespective of who was in the right).
It is good that you define the limits of your intentions, and keep reminding us of those limits. It is invaluable to have a really good guide within those limits. Equally, it is good for practitioners to remind themselves that their professional duties may go beyond strict compliance with the guide. Much better that they start with the guide and make adjustments to take account of an imperfect world, than that they have no set of principles to guide them.
Mark: I could imagine having a worthwhile discussion about whether it’s beneficial to introduce weaknesses into one’s drafting to pander to the courts. But you’ve chosen an inopportune context for that discussion.
That’s because leaving in a contract potentially confusing alternative meanings is never a good idea. In fact, it’s downright reckless. So the limits of my intentions are that I recommend those constructions that aren’t conducive to confusion. I’m not that interested in telling readers which unclear alternatives are the least unclear.
I suspect that in the couple of hundred pages of the third edition that are devoted to ambiguity I inevitably do rank some alternatives according to their degrees of confusion, but it’s not my priority. Because any drafter should want to avoid ambiguity like the plague. I can’t imagine anyone thinking, for example, Yes, this provision exhibits syntactic ambiguity, but I’m going to leave it that way because … Here, my imagination fails me. I can’t think of any conceivable reason, even a misguided one.
And my approach isn’t the result of any shortcut. For example, I suspect that the third edition’s discussion of uncertainties relating to use of “and” and “or” is by a long shot the most comprehensive in any literature.
To revert to your more general point, the foundation of my approach is avoiding fights. That’s why I keep one eye on the caselaw. And I’m confident that incorporating misconceptions in one’s drafting because judges in a some jurisdictions might be used to seeing them isn’t a path to clarity. That said, in my writings I highlight those few contexts where statutes or caselaw make it advisable or necessary to say something that would otherwise be less than ideal. And I flag those recommendations that are particularly at odds with entrenched usages.
Ken
My neighbor has a burn permit which states:
“No burning of logs, tree stumps, tree limbs, branches or any agricultural debris greater than 4″ in diameter”
Is he allowed to burn branches that are less than 4″ in diameter?