You know the feeling. You’re drafting a Complaint, but your client can’t remember every detail; or you can’t make heads or tails of the record; or the law itself is unclear. So you invoke the Swiss-Army knife of conjunctions: “and/or.”
Don’t. “And/or” is ubiquitous in legal writing, especially legal complaints. Many lawyers intentionally use “and/or” for its literal meaning: “both, or either.” And sometimes that ambiguity is fine. If John Smith “has emails and/or documents related to the sale,” I’m not getting into trouble for not knowing which. He might have emails, documents, or both, and my uncertainty won’t sink my claim. This may be poor writing that “destroys the flow and goodness of a sentence,”[1] but it likely won’t sink my case.
But often, lawyers use “and/or” for something different: a sort of linguistic broom that will sweep into one’s Complaint whatever is true and provable by connecting several things that may or may not be.
In recent years, the Supreme Court of Virginia has made clear that attorneys should really stop doing this. In A.H. v. Church of God in Christ, Inc., 297 Va. 604 (2019), the Court addressed a decision of the circuit court sustaining a demurrer related to assault claims made against a church and its alleged employee. Critical to the case was whether one defendant was an employee or agent of another. In evaluating the allegations of the Complaint and their sufficiency, the Court noted in a footnote the use of “and/or” allegations:
“We share the view that ‘and/or’ is an ‘unfortunate hybrid’ and ‘a drafting blemish’ because ‘[t]he literal sense of and/or is both or either,‘ providing three possible choices: one, the other, or both.”
Id. at 614 n.3 (citing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 125 (2012)). Because the plaintiff had also included “unqualified allegations of employment and agency,” this distinction did not ultimately matter. But the outcome might have been different if the plaintiff had qualified all of her allegations with “and/or” assertions.
Earlier this year, the Court cautioned attorneys in even stronger terms. In Doe v. Baker, 299 Va. 628 (2021), the Court again addressed a demurrer ruling, this time in a multi-count Complaint against numerous defendants. The Court noted the “amended complaint’s liberal use of the ‘and/or’ semantic device.” Id. at 640 n.4. The Court then warned:
“The use of an ‘and/or’ allegation can be confusing and expose the complaint to demurrer on this basis alone. Alleging that a defendant (i) is liable or, if not, (ii) someone else is liable, or (iii) perhaps even both are liable. The disjunctive between (i) and (ii) means the defendant may or may not be liable.”
This potential ambiguity, the Court stated, ran afoul of the principle that a “complaint should, at a minimum, provide basic notice to a defendant concerning liability.” Id.
This condemnation of the “unfortunate hybrid” is relatively tame. The Court could have gone the route of the Supreme Court of Wisconsin: “We are confronted with the task of first construing ‘and/or,’ that befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase.”[2]
Or Kentucky: “This error is achieved by use of the much condemned conjunctive-disjunctive crutch of sloppy thinkers, and/or.”[3]
Or Montana: “The use of this much-maligned and overused conjunctive-disjunctive reflects poor draftsmanship and generally should be avoided.”[4]
Or New Jersey: “That inherently ambiguous phrase cannot help but cause confusion and we condemn the use of ‘and/or’ in an indictment or any other document of importance.”[5]
Or Bryan Garner: “Banish [and/or] from your working vocabulary.”[6]
You get the idea. If you do not truly mean “one, the other, or both,” don’t use “and/or.” And before you file your Complaint, ask yourself that question for each time you use the “unfortunate hybrid.” Just as importantly, if you want to improve your legal writing, eliminate it all together.
Appellate courts don’t often caution practitioners as clearly as the Supreme Court did in A.H. and Doe.
We should listen.
[1] See William Strunk Jr., Elements of Style, at 34 (1959).
[2] Employers’ Mut. Liability Ins. Co. v. Tollefsen, 263 N.W. 376, 377 (Wis. 1935).
[3] Raine v. Drasin, 621 S.W.2d 895, 905 (Ky. 1981).
[4] Sandman v. Farmers Ins. Exch., 969 P.2d 277, 281 (Mont. 1998).
[5] State v. Buckley, 2011 WL 320939, at *3 (N.J. Super. Ct. App. Div. Feb. 3, 2011).
[6] Bryan A. Garner, The Elements of Legal Style 102 (1992).
