Avoid using these words …
1.
2.
3.
4.
and/or
deem
herein
know all men by these
presents
5. provided that
provided, however, that
providing
6. pursuant to
7. said
8. same
9. shall
10. such
11. whereas
12. witnesseth
Garner’s Dirty Dozen
Bryan A. Garner, editor in chief, Black’s Law
Dictionary since 1977, and Distinguished Research
Professor of Law at Southern Methodist University
Law School.
Using Plain Language, he restyled the following:
Garner has written
more than a dozen
books on legal writing
and English grammar
and usage. He
contributed a chapter
in The Chicago
Manual of Style.

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




Federal Rules of Appellate Procedure
Federal Rules of Criminal Procedure
Federal Rules of Civil Procedure
Texas Rules of Appellate Procedure
California Rules of Appellate Procedure
California Judicial Council Rules
Local Rules of the United States
Court of Appeals for the 10th Circuit
 Rules on Judicial Conduct and Disability
Proceedings
US cases criticizing use of “and/or”
American
courts have
ruled, as
early as
1932, that
“and/or” is
not part of
the English
language.
Illinois
Appellate
Court
called
New
Mexico
State
Supreme
Wisconsin Supreme Court
itCourt
a “freakish
fad”
and as a
declared
“and/or”
called it “befuddling,
“accuracy-destroying
symbol”
“linguistic
abomination”
(State
nameless thing, that Janus(Tarjan
vs. 1947).
National Surety,
vs.
Smith,
faced verbal monstrosity”
1932).
(Employers vs. Tollefson,
Supreme
Court of Kentucky
1935).
Supreme
of North
called it asCourt
the “muchCarolina
accused
a trial judge
condemned
conjunctivewho
used “and/or”
disjunctive
crutch ofofsloppy
“murdering
everybody’s
thinkers” (Raine
vs. Drasin,
English”
(Brown vs.
Guaranty
1981, dissenting
opinion
by
Estates,
1954).
Justice Lukowsky).
Wisconsin Supreme Court:
Employers vs. Tollefson, 1935
“And/or” is neither a 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, now commonly used by
lawyers in drafting legal
documents, through
carelessness or ignorance or
as a cunning device to conceal
rather than express meaning
with view to furthering the
interest of their clients.
Confusion in last will caused
by the use of “and/or”
In Re Estate Of Massey, October 1998 (Superior Court of New
Jersey, Chancery Division, Probate Part, Monmouth County)
Massey directed in his will that
one-third of his estate should
pass “to my niece, Diane Hall
and/or Grandniece, Carly Hall.”
What is the meaning of “and/or”
in this last will?
• Diane and Carly will both
inherit; or
• Either Diane or Carly will
inherit
What, after all, does “and/or”
mean? “And” is easily defined,
as is “or”. There is, however, no
known understanding as to what
“/” means.
There is no end to the mischief
caused by such inarticulate, if
not illiterate, drafting. It seems to
this court that the use of “and/or”
in a will bespeaks negligence on
the part of the drafter.
Conviction in drug cases reversed
due to judge’s use of “and/or”
State of New Jersey vs. Zaair Tuck (Superior Court Of New
Jersey Appellate Division, January 2006)
The use of the phrase
Tuck was charged with possession of
“and/or” in the trial
marijuana, possession of marijuana with
judge’s instructions in
intent to distribute, and violation of his
this case was capable
probation. In the jury instructions, the judge of producing an unjust
used “and/or” 15 times. For example:
result.
You must determine that S-1 and/or S-6 contain
marijuana; two, that the defendant had actual and/or
constructive possession or had under his control S-1
and/or 6; three, that the defendant when he
possessed and/or had under his control with intent to
distribute S-1 and/or S-6, he had a specific intent to
distribute those items; and four, that he acted either
knowingly or purposely in possessing or having under
his control with intent to distribute S-1 and/or S-6.
“And/or” should not be
further utilized by
judges in their jury
instructions.
Judgment reversed;
new trial ordered.
Australian Supreme Court
criticizes use of “and/or”
Canberra
Construction
ExtramanData
et alvs.
vs.Vibe
Blenkinship
et al
(March
(2008) 2010)
 “bastard conjunction” (from Viscount
“bastard conjunction”
Simon in Bonitto vs. Fuerst Bros, 1944)
 “embarrassing
expression
which
Harrison
Green vs.
The Queen
(2000)
endangers accuracy”
 “common
and deplorable affection
“bastard
conjunction”
invitingortrouble”
“a device
shortcut which often leads to
confusion
or ambiguity”
 “particularly
unhappy”
Canada: Never use “and/or”
David C. Elliott: drafter of Acts, regulations, rules, and bylaws for
close to 40 years, including 10 years in the Alberta Legislative
Counsel Office, First Nations, and the New Zealand government
“And/or” seems to be used by writers whose main concern is to
appear erudite. In my opinion, quite the opposite impression is
created. Use of this conjunction which is not a conjunction is
repugnant to the spirit of the language, English or French.
(Louis-Philippe Pigeon, former Justice of the Supreme Court of
Canada)
Not only is the expression repugnant, it is ambiguous. It has caused
many law suits. The words “and” and “or” have quite different
meanings. You might think that “and/or” means A or B, or both. Some
courts have even said “and/or” means the court can choose either
“and” or “or”, whichever the justice of the situation requires (State vs.
Dudlley). Other courts have come to other conclusions. The only rule
to follow is: never use and/or.
Reason for not using “and/or”
 Or usually includes and.
 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
one or the other, or both -whatever reading is better
from that reader’s perspective.
Michigan Bar Journal,
August 2003, by Scott P.
Stolley
“The negligence of Defendant
Jones and/or Defendant
Smith proximately caused
Plaintiff ’s injuries.”
Alternatives:
“No food or drink allowed.”
“The negligence of Defendant
Jones or Defendant Smith
proximately caused Plaintiff ’s
injuries.”
“No admission for lawyers and
law students allowed.”
“ … of Defendant Jones or
Defendant Smith, or both”
Plain Language alternative to “and/or”
Michigan Bar Journal, Aug.
2003, by Scott P. Stolley
“The negligence of Defendant
Jones and/or Defendant
Smith proximately caused
Plaintiff ’s injuries.”
Alternatives:
“The negligence of Defendant
Jones or Defendant Smith
proximately caused Plaintiff ’s
injuries.”
“ … of Defendant Jones or
Defendant Smith, or both”
A and/or B
A or B, or both
RA 8552 Domestic Adoption Act of 1998:
The penalty of imprisonment ranging from
six (6) years and one (1) day to twelve (12)
years and/or a fine not less than Fifty
thousand pesos (P50,000.00), but not more
than Two hundred thousand pesos
(P200,000.00) at the discretion of the court
shall be imposed on any person who shall
commit any of the following acts:
Revised:
penalty of imprisonment ranging from 6
years and 1 day to 12 years or a fine not
less than P50,000.00, but not more than
P200,000.00, or both
Some Philippine laws using “and/or”
RA 7192 Gender Equality, Section 4, par. (2)
Include an assessment of the extent to which their programs and/or
projects integrate women in the development process and of the impact
of said programs or projects on women, including their implications in
enhancing the self-reliance of women in improving their income;
RA 8972, Section 3, par. (4)
Parent left solo or alone with the responsibility of parenthood due to
physical and/or mental incapacity of spouse as certified by a public
medical practitioner;
RA 9048
An Act Authorizing The City Or Municipal Civil Registrar Or The Consul
General To Correct A Clerical Or Typographical Error And/Or Change of
First Name Or Nickname In The Civil Register
RA 9262, Section 8, par. [g]
Directing the respondent to provide support to the
woman and/or her child if entitled to legal support.
Notwithstanding other laws to the contrary, the court
shall order an appropriate percentage of the income or
salary of the respondent to be withheld regularly by
the respondent's employer for the same to be
automatically remitted directly to the woman. Failure
to remit and/or withhold or any delay in the remittance
of support to the woman and/or her child without
justifiable cause shall render the respondent or his
employer liable for indirect contempt of court;
Avoid using “deem”
The word “deem” should create a legal fiction,
not state the truth.
The Pittsburgh Steelers
are deemed to be the
2006 Super Bowl
champions.
For purposes of this agreement,
the Seattle Seahawks are
deemed to be the 2006 Super
Bowl champions.
(The Pittsburgh Steelers
were the 2006 champions
so it is wrong to use
“deem”.)
(They weren’t really but we are
treating them as if they are; the
word “deem” is correctly used.)
Art. 20. The license shall be valid in any part of the Philippines for a
period of one hundred twenty days from the date of issue, and shall be
deemed automatically canceled at the expiration of the said period if the
contracting parties have not made use of it. The expiry date shall be
stamped in bold characters on the face of every license issued.
Avoid using “herein”
The problem with herein is that courts can’t agree
on what it means. In this agreement? In this
section? In this subsection? In this paragraph? In
this subparagraph?
Use ordinary English words instead of “herein”. For
example, use “in this agreement”.
“Know all men by these presents”
It’s asinine, sexist
deadwood.
It’s a legalistic way of
saying “Heads up!”
Just cut it.
Avoid using “provided that” or
“provided, however, that”
 The meaning is unclear –
it can mean
•
•
•
•
if
except
also
but
 Its reach is uncertain – that is it
may modify the preceding 12
words or the preceding 200.
 It causes sentences to sprawl.
Better way of making
an exception to
something just said:
Insert a period and
start a new sentence
with a capitalized
But.
(This pattern was
used in the US
Constitution eight
times.)
Example from the Family Code
Art. 33. Marriages
among Muslims or
among members of the
ethnic cultural
communities may be
performed validly
without the necessity of
marriage license,
provided that they are
solemnized in
accordance with their
customs, rites or
practices.
Art. 33. Marriages
among Muslims or
among members of the
ethnic cultural
communities may be
performed validly without
the necessity of
marriage license. But the
marriage must be
solemnized in
accordance with their
customs, rites or
practices.
Avoid using “pursuant to”
Michigan Bar Journal, August
2003, by Scott P. Stolley
This phrase is a favorite among
lawyers— but only among
lawyers. Laypeople rarely use it.
It is clunky and often ambiguous.
It can mean, for example:





by
under
in accordance with
in compliance with
in carrying out
Plaintiffs bring this lawsuit
pursuant to [under] the Tort
Claims Act.
The defendant was held
pursuant to [in accordance
with] the arrest warrant.
Pursuant to [According to]
the contract, the seller
must forfeit the deposit.
Pursuant to [In carrying
out] the mandate, the trial
court entered judgment.
Avoid using “said”
As past tense
of say, it’s okay
to use.
But not as
substitute for the;
it doesn’t add one
iota of precision.
Michigan Bar Journal, Aug. 2003
“Said” is a crutch word that lends
awkwardness, not precision.
There is no need to say ‘‘To the
Honorable Judge of Said Court.’’
Just say ‘‘To the Honorable
Court.’’
Don’t say: ‘‘The said witness saw
the said defendant run the light.’’
Simply say ‘‘The witness saw the
defendant run the light.’’
Examples from the Family Code
Art. 6. In case of a
marriage in articulo
mortis, when the party at
the point of death is
unable to sign the
marriage certificate, it
shall be sufficient for one
of the witnesses to the
marriage to write the
name of said party, which
fact shall be attested by
the solemnizing officer.
Art. 44. If both spouses of
the subsequent marriage
acted in bad faith, said
marriage shall be void ab
initio and all donations by
reason of marriage and
testamentary dispositions
made by one in favor of
the other are revoked by
operation of law.
Avoid using “same”
Many lawyers use “same” as a
pronoun because they think they
are being precise. For example:
“Once the indemnitee receives
such notice, the indemnitee shall
acknowledge same.”
Use “it” instead of “same” (“it” is
not less precise).
Ordinary pronouns are better than
“same” because they differentiate
singular from plural – “same”
doesn’t.
“Same” and the US Constitution
Article II, Section 1, Clause 6 of
the US Constitution:
In Case of the Removal of the
President from Office, or of his
Death, Resignation, or Inability to
discharge the Powers and Duties of
the said Office, the Same shall
devolve on the Vice President, and
the Congress may by Law provide
for the Case of Removal, Death,
Resignation or Inability, both of the
President and Vice President,
declaring what Officer shall then act
as President, and such Officer shall
act accordingly, until the Disability be
removed, or a President shall be
elected.
The Twenty-fifth Amendment
(Amendment XXV) to the United
States Constitution deals with
succession to the Presidency
and establishes procedures both
for filling a vacancy in the office
of the Vice President, as well as
responding to Presidential
disabilities.
The amendment supersedes the
ambiguous wording of Article II,
Section 1, Clause 6 of the
Constitution. It was adopted on
February 23, 1967.
Avoid using “shall”
The meaning of “shall”
changes from
sentence to sentence.
Courts have held that
“shall” can mean:





has a duty to
should
is
will
may
For permission, use “may.”
Materials may (not “shall”) be used only
in the research room.
When recommending a course of
action, use “should.”
Your financial institution should (not
“shall”) agree on how invoice information
will be provided to you.
When indicating the future, use “will.”
When something is a fact, use “is”
The contracting officer is (not “shall be”)
responsible for ensuring that the terms
comply with the regulations.
Use “must” instead of “shall”
Obligations: use “must” instead of “shall”.
Prohibitions: use “must not” instead of “shall not”.
Written notification shall be made
to this office in the event that
ownership of the invention has
been transferred.
You must notify us, in writing,
if ownership of the invention
changes.
All subcontractors shall be of
bonded and insured status.
You must ensure that any
subcontractors you use are
bonded and insured.
All employees shall receive
compensation not less than the
legally established minimum wage.
You must pay all employees
at least the minimum wage
established by law.
Forms shall be forwarded to the
Office of the Solicitor General.
You must send the form to the
Office of the Solicitor General.
How to indicate other requirements
When a requirement is not
a matter of law but of
policy, let tone dictate your
choice of words. Again,
never use “shall,” but use:




must
required
have to
need to
Examples:
You must replace all
records in their original
order.
Each applicant is required
to pass a polygraph test.
You have to send us this
information before we can
determine your eligibility.
You need to complete this
form to apply for benefits.
Examples from the Family Code
Art. 2. No marriage shall be
valid, unless these essential
requisites are present:
(1) Legal capacity of the
contracting parties who must
be a male and a female; and
(2) Consent freely given in the
presence of the solemnizing
officer.
Art. 4. The absence of any of
the essential or formal
requisites shall render the
marriage void ab initio,
except as stated in Article 35
(2).
A defect in any of the
essential requisites shall not
affect the validity of the
marriage but the party or
parties responsible for the
irregularity shall be civilly,
criminally and
administratively liable.
Avoid using “such”
“Such” is inherently
ambiguous.
To the educated nonlawyer, it means “of that
kind”.
To the lawyer, it means
“the very one just
mentioned”.
“Such” can oftentimes be
replaced by “the”.
Example from the Family Code
Art. 36. A marriage contracted by
any party who, at the time of the
celebration, was psychologically
incapacitated to comply with the
essential marital obligations of
marriage, shall likewise be void
even if such incapacity becomes
manifest only after its
solemnization.
Avoid using “whereas” or “witnesseth”
Instead of “whereas”
Use the subtitle “Background” or
“Recitals”, followed by short
declarative sentences explaining
what’s about to be done and why.
Justice George Rose Smith (Arkansas
Supreme Court) on said, such, and
hereinafter
“A Primer of
Opinion
Writing, for
Four New
Judges”, 21
Ark. L. Rev.
197, 209
(1967)
“You’ll
“I
can do
get
with
a kick out
“Sharon
Kay
another
of
what
happened
piece
of
that
stubbed her toe this
pie,
today
dear.
to
my
Said
pie
is
afternoon, but such
the
secretary,
hereinafter
ever
toe best
is all you’ve
right
now.”
made.”Cuddles.”
called