Wednesday, September 27, 2006

Plain English: a reason to repeat conjunctions

How nonlegal readers read is sometimes not how legal readers do. Here's an example that shows that even though a lawyer would know that a list of tabulated items is disjunctive because there is an or before the last item, that is not obvious to nonlegal readers.

I received this question:

Consider this statute:
    (e) Except as provided in subdivision (d), [blah, blah, blah] unless the agent has met the applicable standard of conduct by:
    1. A majority vote of a quorum consisting of directors who are not parties to such proceeding;
    2. Approval of the members with the persons to be indemnified not being entitled to vote thereon; or
    3. Approval of the court in which such proceeding is or was pending.
Is the statute to be interpreted as "1 and 2 or 3"?

Or is it to be interpreted as "1 or 2 or 3"?

This realization hit me again when I was testing jury instructions, and it became clear that the jurors were reading

c, and

As "any one of a, b, c, or d."

What to do? We started putting an and after each item:

a, and
b, and
c, and

It worked. In the next test, we could hear them discussing how "all these things have to be proved."

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