University of Cincinnati Law Professor Sean Mangan does not hate many things, but ‘and/or’ has to be first on the list – along with whomever might be playing his Irish that weekend. I had the pleasure of taking multiple drafting classes with him several years ago, but I honestly never quite understood the depth of his anger towards the use of ‘and/or’ (along with “thereof”, “henceforth”, “hereto”, and the like). However, as it turns out, he is in very good company, as many judges and legal drafters seem to have some unresolved anger issues with this phrase as well.
The generally agreed upon meaning of “X and/or Y” is “X or Y or both”. That is a fine definition, but the problem is that the lack of clarity on the surface of the expression can allow opposing counsel to deliberately misinterpret whatever provision is in question in their client’s favor. If “X or Y or both” is what you mean, then just write what you mean! Take a look at how judges and style guides view the use of ‘and/or’:
Cochrane v. Florida E. Coast Ry (Florida) – It is one of those inexcusable barbarisms which were sired by indolence and damned by indifference, and has no more place in legal terminology than the vernacular of Uncle Remus has in Holy Writ. I am unable to divine how such senseless jargon becomes current.
Employers Mut. Liab. Ins. Co. v. Tollefsen (Wisconsin) – [T]hat befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning, or too dull to know what he did mean.
Chicago Manual of Style – Avoid this Janus-faced term. It can often be replaced by ‘and’ or ‘or’ with no loss in meaning.
Raine v Drasin (Kentucky) – [The] much-condemned conjunctive-disjunctive crutch of sloppy thinkers.
Higgins v Orion Insurance Co (California) – This is … a … consequence of the use of the expression “and/or”. That term has often created confusion and ambiguity and for many years has been the subject of frequent criticism. It has been condemned as “a confusing hybrid”, “a grammatical monstrosity”, “a bastard sired by indolence (he by ignorance) out of dubiety”, and “an unfortunate expression which I have not met before and which, I hope, I may never meet again”.
Carley Foundry, Inc. v. CBIZ BVKT, LLC (Minnesota) – The phrase “and/or” is semantically and logically contradictory … It is an indolent way to express a series of items that might exist in the conjunctive, but might also exist in the disjunctive … the expression “and/or” creates an instant ambiguity … a bad-faith reader of a document can pick whichever one suits him—the “and” or the “or.”
Klecan v Schmal (Nebraska) – [T]he use of the phrase is not to be recommended as it leads to uncertainty, ambiguity, and multiplicity.
Putnam v Industrial Commission (Utah) – [W]e believe the symbol to be a device for the encouragement of mental laziness.
Strunk & White, Elements of Style – A device, or shortcut, that damages a sentence and often leads to confusion or ambiguity.
The Redbook: A Manual on Legal Style – It is especially unfit for legal writing because it is inherently ambiguous.
Legal Drafting in Plain Language – Never use “and/or.” This linguistic aberration is dealt with harshly by the courts … The eye tends to trip and stumble over this symbol. It has been promulgated largely by those who either have not taken the trouble to decide, or cannot make up their minds, which of the two words they mean.
Whew. One of the least fun things I can think of is having a judge rip into one of my leases just because I used “and/or”. I’m not quite sure if the level of vehemence is justified in every case, but consider this: Does it really take much more effort to say what you are truly trying to say instead of “and/or”? It seems like a no-brainer to simply use the preferred language of “X or Y or both”. Professor Sean Mangan and legal drafting professors around the nation are doing their part in shaping the drafting skills of new attorneys to not use bad expression like ‘and/or’. Now it is up to the practicing attorneys to change their ways as well to ensure that no one will have to bear the weight of an angry judge’s ruling on their use of “and/or” ever again.
Also, if you had to google what the heck Janus-faced meant (“having two sharply contrasting aspects or characteristics”), don’t worry. I promise you that you’re not alone.