And/Or: Which Is It? Avoiding Ambiguity in Legal Writing
You know the “Conjunction Junction” song from the School House Rock series, right? Sure you do. It’s the kind of thing that you only need to encounter once for it to become an earworm for life. There you go—it’s in your head now, isn’t it. Well, believe it or not, a vast number of attorneys could learn something by listening to it again. That something is to avoid using “and/or” in legal writing. To understand why, we’ll need to discuss ambiguity for a moment.
Basically, an ambiguity exists when a word or phrase could reasonably be construed to have two or more meanings at the same time. For example, let’s say I offer you $100 to cut down the largest of my three trees. When you arrive to do the job, ax in hand, you discover that one tree is much taller than the others, another has a much bigger canopy than the others, and the last has a much thicker trunk than the others. So which tree is the largest? Because that word “largest” could reasonably mean any of the three trees, it is ambiguous. This type of ambiguity is called a latent ambiguity because you would not have known that the meaning was unclear until you looked at the trees. The other type of ambiguity and called a patent ambiguity, because you can construe more than one meaning without having to refer to anything other than the word or phrase itself. In most cases, using “and/or” creates a patent ambiguity, but it is often helpful to apply the meaning to an example to illustrate the different meanings.
The word “and” is conjunctive, meaning it combines things. Conversely, the word “or” is disjunctive, meaning it separates things. Because the phrase “and/or” can reasonably be construed as conjunctive and disjunctive at the same time, it is inherently ambiguous. Here is an example:
You and I have plans to see a movie together and I offer to pay for your ticket if you wear red shoes and red socks to the movie. You come wearing red shoes and green socks, so I refuse to pay for your ticket. However, if I had instead offered to pay for your ticket if you wore red shoes or red socks, you would have met the criteria of my offer, and I would have paid for your ticket. So what if I had offered to pay for your ticket if you wore red shoes and/or red socks? If “and/or” is construed conjunctively, then you would have to pay for your ticket, but if it is construed disjunctively, then I would have to pay for your ticket. If my intent was to pay for your ticket regardless of whether you wore red shoes conjunctively or disjunctively with red socks, that intent could be unambiguously stated as “red shoes, red socks, or both.”
Despite the inherent ambiguity of the phrase “and/or,” I often see it used in legal writing. Sometimes it is used in even when there should be either an “and” or an “or” because the context indicates that the intent is to be either conjunctive or disjunctive, but not both.
Avoiding ambiguity whenever possible is important, especially because some ambiguities can compound on one another. For example, imagine if I offered to pay you $100 to cut down the largest of my trees that is alive and/or dead.
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