Words Lawyers Shouldn't Be Using And/Or Relying On

Originally published at State Bar of Michigan Blog, check out the full article there!

In the ABA Journal, the incomparable Bryan Garner has an indispensable list of words and phrases that lawyers should not use: herein, deem, know all men by these presents, provided that, pursuant to, said, and same. And "and/or." The only one that I am occasionally guilty of is "and/or" which in the odd circumstance just seems to me to be more efficient than ", or both." Garner musters some pretty persuasive authority against "and/or" --

American and British courts have held that and/or is not part of the English language. The Illinois Appellate Court called it a "freakish fad" and an "accuracy-destroying symbol." The New Mexico Supreme Court declared it a "meaningless symbol." The Wisconsin Supreme Court denounced it as "that befuddling, nameless thing, that Janus-faced verbal monstrosity." More recently, the Supreme Court of Kentucky called it a "much-condemned conjunctive-disjunctive crutch of sloppy thinkers."

Damning to be sure, but I'm not sure I buy Garner's argument for why and/or is never appropriate:

If a sign says "No food or drink allowed," nobody would argue that it's OK to have both. (Or includes and.) And if a sign says "No admission for lawyers and law students," would you argue that either could go in alone? You'd be thrown out of court.

The real problem with and/or is that it plays into the hands of a bad-faith reader. Which one is favorable? And or or? The bad-faith reader can pick whatever reading seems favorable.

Here's an example that makes Garner's point from a recent Nebraska Supreme Court opinion (they didn't get the memo from Kentucky):

On reinstatement to practice by the Supreme Court, such party shall, on written request and upon payment of the requisite fees and/or mandatory assessments, be restored to membership in this Association.

But what about this subheading?:

Budget Impact -- Moderate state and/or local costs, likely partially offset by the avoidance of federal penalties.

The subheading prefaces an explantion that, depending upon implementation, a particular activity could incur state costs but not local costs, local costs but not state costs, or state and local costs. A simple "and" just doesn't cut it.