Available Now for Pre-order – Oregon Attorney Fee Codebook and Compilation, Vols. 1 & 2

This two volume set will include Oregon Attorney Fee Codebook and Oregon Attorney Fee Compilation.  Don’t miss out on the preorder discount.  Order your copies today by visiting our online bookstore.  You may also contact our order desk at (503) 431-6413, or toll-free in Oregon, 1-800-452-8260.  Pre-order discount ends December 1, 2014.

Learn more….

 

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What’s New on BarBooks™

The following material has been posted to BarBooks™ as of October 1, 2014. Chapters to books in progress are posted as they are finalized, before they are available in print.

Oregon Real Estate Deskbook
Chapter 9:    Survey, Boundary, and Legal Descriptions
Chapter 13:  Covenants, Conditions, and Restrictions
Chapter 25:  Contract of Sale
Chapter 28:  Statutory Lien Rights
Chapter 52:  Securities Law
Chapter 59:  Conservation Easements

PLF Oregon Statutory Time Limitations
2014 Edition PDF available for download

Uniform Civil Jury Instructions
UCJI 22.06 — Concurrent Negligence of Two or More
Persons (In Claims Not Subject to ORS 31.610)
UCJI 57.01 — At-Will Employment as a Contract
UCJI 60.19 — Special Benefits to Several Properties
UCJI 60.20 — Special Benefits and Damages–
Consideration of Entire Project
UCJI 65.06 — Method of Acceptance–Unspecified
by Offer
UCJI 65.07 — Duration of Offer
UCJI 65.08 — Withdrawal of Offer
UCJI 65.17 — Contract Interpretation–Ordinary
Meaning of Terms
UCJI 65.20- — Waiver Defined
UCJI 66.05 — Tender of Delivery (Seller) (UCC)
UCJI 66.06 — Withdrawal of Waiver (UCC)
UCJI 67.03 — Breach of Express Warranty (UCC
UCJI 67.04 — Implied Warranty of Fitness for Particular
Purpose (UCC)
UCJI 67.05 — Breach of Implied Warranty of Fitness
for a Particular Purpose (UCC)
UCJI 67.06 — Merchantability (UCC)
UCJI 70.17 — Damages–Bar of Noneconomic Damages
(Defenses to Bar of Damages)
UCJI 70.18 — Damages–Bar of Noneconomic Damages
(Defense to Bar of Damages–Uninsured Exception)
UCJI 90.02 — Tape-Recorded Instructions (withdrawn)

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Time Limitations under the Oregon Family Abuse Protection Act

Oregon Statutory Time Limitations is now available on the BarBooks™ online library. This article is an excerpt from the Family and Juvenile chapter of that book. It is not a comprehensive coverage of the topic of the Family Abuse Protection Act, but is rather limited to a discussion of time limitations provided for under that statute. For more information about time limitations in family and juvenile matters, see the complete chapter on BarBooks™.

Authors of the chapter from which this article is excerpted are Jessica Flint, Nigel Vanderford, Alex Sutton, Mark Johnson Roberts, and Craig Cowley.

Sec. 4.1   FAMILY ABUSE PROTECTION ACT

“Any person who has been the victim of abuse within the preceding 180 days may petition the circuit court for relief under ORS 107.700 to 107.735 [the Family Abuse Prevention Act], if the person is in imminent danger of further abuse from the abuser.” ORS 107.710(1). Time during which the respondent is incarcerated or has a principal residence more than 100 miles from the petitioner’s principal residence is not counted as part of the 180-day period. ORS 107.710(6).

Sec. 4.1A Hearing and Duration

When a person files a Family Abuse Prevention Act petition, the court must hold an ex parte hearing on the day the petition is filed or on the
following judicial day. Upon the request of the petitioner and the requisite showing of abuse, danger, and threat, the court must issue an order restraining the respondent and including various specific provisions. ORS 107.718(1). The order is effective for one year or until withdrawn, amended, or superseded, whichever is sooner. ORS 107.718(3).

Sec. 4.1B  Respondent’s Request for a Hearing

Within 30 days after a restraining order is served, the respondent may request a hearing. If the respondent fails to request a hearing within that time, the order is confirmed by operation of law. ORS 107.718(10)(a), (11).

Sec. 4.1C  Hearing Date

If the respondent requests a hearing under ORS 107.718(10), the court must hold the hearing within 21 days after the request. However, if the respondent contests an order granting temporary child custody to the petitioner, the court must hold the hearing within five days after the request. ORS 107.716(1).

Sec. 4.1D  Child Custody Hearing

If the court determines under ORS 107.718(2) that exceptional circumstances exist that affect custody of a child, the court must hold a hearing within 14 days of issuing the restraining order. ORS 107.716(2)(a). The respondent may request an earlier hearing to be held within five days after the request. ORS 107.716(2)(b). When the court schedules a hearing under ORS 107.716(2), the respondent may not request a hearing under ORS 107.718(10). ORS 107.716(2)(c).

Sec. 4.1E  Extension of Time

If service of notice of a hearing under ORS 107.718(2) or (10) is inadequate to provide a party with sufficient notice, the court may extend the date of the hearing up to five days so that the party may seek representation. ORS 107.716(4)(a). If one party is represented by an attorney at such a hearing, the court may extend the date of the hearing up to five days at the other party’s request so the other party may seek representation. ORS 107.716(4)(b).

Sec. 4.1F  Renewal of Order

If the court renews an order, the respondent may request a hearing within 30 days after being served. The court must hold a hearing within 21 days after the respondent’s request. ORS 107.725(4).

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Oregon Statutory Time Limitations Now Available

The fifth edition of Oregon Statutory Time Limitations, published as a joint project of the Professional Liability Fund and OSB Legal Publications, is now available on the BarBooks™ online library. A hard copy will be provided to all PLF-covered attorneys by request. Keep an eye on your email inbox for an email from the PLF with information on how to obtain a copy.

The OSB Professional Liability Fund and OSB Legal Publications gratefully acknowledge the Editorial Review Board for their guidance and oversight in reorganizing, reviewing, and editing this book. Editorial Review Board members are Jeffrey M. Cheyne, Craig Cowley, Hon. Joel DeVore, Bruce C. Hamlin, Richard F. Liebman, Lisa J. Ludwig, Robert J. McGaughey, Alan L. Mitchell, Phillip C. Querin, Janet Schroer, Richard A. Slottee, and Brent G. Summers. We also acknowledge the many authors for their diligence and dedication in researching and writing their individual chapters.

This completely reorganized handbook has been expanded and now includes treatment of the following practice areas:

  1. Alternative Dispute Resolution
  2. Civil Procedure and Litigation
  3. Criminal Law
  4. Family and Juvenile
  5. Appellate Practice and Procedure; Writs
  6. Elder Law; Survival of Actions; Decedents’ Estates; Trusts
  7. Personal Injury and Property Damage
  8. Employment Law and Civil Rights
  9. Business Organizations
  10. Business Litigation
  11. Debtor-Creditor Issues; Unclaimed Property; Secured Transactions; Creditors’ Rights in Bankruptcy
  12. Consumer Law
  13. Residential Trust Deeds and Mortgages; Foreclosure
  14. Issues Arising under Contracts and Articles 2, 3, and 4 of the Uniform Commercial Code
  15. Real Estate and Landlord-Tenant Law
  16. Insurance
  17. Construction Law
  18. Judgments and Liens

The inclusion of a comprehensive index and tables of cases and statutes makes this 2014 edition of Oregon Statutory Time Limitations a useful and accessible handbook.

This handbook is a reference guide to many of the statutes, cases, and procedural rules containing time limitations that are relevant to the practice of law. Although the material in this handbook has been carefully researched and reviewed, it should not be relied on as a substitute for full examination of the statutes and cases on any issue. Readers should conduct their own appropriate legal research and consult original sources of authority.

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The Power of Typeface

By Ian Pisarcik, Legal Publications Attorney Editor

How many animals of each species did Moses take on the Ark?

If you answered “two,” you’re wrong, but you’re not alone. According to a study published in The
Journal of the International Social Cognition Network, 88 percent of people failed to spot the mistake (Noah was the actor in the biblical story). But here’s the interesting part, when a less-common typeface was used, the number of people who failed to spot the mistake fell from 88 percent to 53 percent.

The conclusion of the University of Michigan researchers, as well as numerous other researchers who have conducted similar studies, is that a familiar typeface enables readers to skim effortlessly over words. On the other hand, an unfamiliar or hard-to-read typeface forces the brain to invest greater time and attention. The result is that readers are more likely to spot anomalies.

I observe this phenomenon on a small scale almost every day. When I’m reading a passage that seems amiss for no immediately discernible reason, I’ll often change the typeface. The change, nearly without fail, enables me to quickly diagnose the problem.

The University of Michigan study is the tip of the iceberg when it comes to typography research. A study conducted by researchers at Mindlab International found that people who ate soup ordered from a menu written in Lucida Calligraphy were more likely to enjoy the soup than those who ordered the same soup from a menu written in Courier. In another study, Errol Morris (with help from Cornell University Professor of Psychology David Dunning) found that people who read text printed in Baskerville typeface were more likely to believe the text than text printed in many other typefaces, including Georgia and Helvetica.

The body of research surrounding typeface may not help you write a brief or any other court document that has strict requirements, but it may come in handy when creating a website, sending an e-mail, or designing a business card. Just imagine all that power.

*As an interesting side note, typeface and font are not synonymous despite common usage.

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30 Years of Legal Editing

By Cheryl McCord, Legal Publications Attorney Editor

I am a legal editor. For over 30 years, I have edited legal resources used and relied upon by Oregon lawyers. Over the years, I have seen a lot of mind-boggling changes in the editorial process. Frankly, probably because of my advancing age, it’s difficult for me to remember “the way we were.” I will, however, make a feeble attempt to do so.

The Old Days

When I began my career as a legal editor, we paid law students to check the citations in chapters (e.g., running heads for case names) and to alert us to issues that required further analysis. The clerks came to our office to check out chapters (which the authors had sent to us by Pony Express) and then they went to the law library to work on them. They would have to run around the library to get—and put back—multitudes of volumes of reporters, treatises, statutory compilations, and other resources, and then physically turn pages to check an author’s citations. (They had to be physically fit, like firefighters.) Using red ink pens, they made changes and notes on the manuscript pages. After completing a chapter, the clerk returned the manuscript to a legal editor.

The editor then made editorial changes on that same manuscript using a different-colored ink pen (I preferred purple). The editor looked at Oregon cases and statutes while reviewing the legal accuracy of the author’s statements. Inserts and revisions that were too lengthy to interline on the manuscript were hand-written (often illegibly) on separate pieces of paper and attached to the relevant pages. The resulting dog-eared and wrinkled product became a collage of different colors, arrows, doodles (flowers were my specialty), editorial symbols, and materials (including coffee stains, remnants of what the law clerk had for lunch, and other unknown substances—I’m sure the brown smudges were chocolate).

Then our secretary typed the inserts and the messy pages, and used the cut-and-paste method to put the edited manuscript together. This was a very time-consuming (and sloppy) process. We then photocopied this conglomeration to send it to the author, who reviewed our edits and made additional marks on the pages. The chapter was then ready to be sent to an outside typesetter. When the print version was returned to us, we had to proofread the manuscript carefully, line by line. AARRGGHH!!

One thing I’ve learned over the years is that everything is always evolving into something else. Like everything in life, our editorial process has undergone changes that have been so gradual and imperceptible that we didn’t even know they were occurring (such as our hair color—mine is now white; when did THAT happen?).

The Future Is Here

With the invention of personal computers, we began to type our own inserts, but our word-processing specialist had to incorporate the inserts and hand-written editorial changes into the digital version of the chapter. Then, with the advent of online legal resources, we attorney editors enjoyed great access to many different kinds of legal materials and began doing our own cite-checking online. It was amazing—we could sit at our desks and visit many law libraries without having to jump up and down and run down the aisles between bookshelves! We thought that our editorial lives couldn’t get much better than this. But that evolutionary process kept on truckin’.

And then, lo and behold, we discovered digital editing! (Yep, just like Al Gore invented the Internet.) It was miraculous! (Well, okay, I have to admit that I resisted this change. To begin digital editing in MS Word seemed overwhelming—it was so different and revolutionary and there was so much to learn! It’s harder for my old eyes to read words on a computer screen than words on paper. I even questioned my inner being—was I an attorney editor or a word-processing non-specialist? Woe is me.)

The evolution of our editorial process has given life to a better world of editing. I believe that digital editing, coupled with online legal researching by our attorney editors, have improved the quality and accuracy of our publications. We now even have dual computer monitors to enhance the process (one screen for the chapter we’re editing, and one screen for online legal resources).

Digital editing is also a huge benefit to our volunteer authors. The track-changes feature of digital editing in MS Word enables them to readily see where any changes were made to the chapter. (Deletions are noted in boxes in the left-hand margin and additions are marked in red with a double underline.) Rather than destroying trees in order to mail hard copies of edited chapters to authors, we now e-mail chapters to them. Authors seem to appreciate receiving an electronic version of their chapter with tracked changes; it saves them time in reviewing our work.

Some Things Never Change

Although the manner in which I accomplish the finished product has changed over the years, my essential role as a legal editor has remained the same. Editing a legal manuscript involves not only reviewing the substantive accuracy of the author’s work, but also checking the work for spelling, grammar, consistency, and conformity to an in-house style manual. The legal editor is also the person who reviews the chapter from the reader’s perspective, ensuring that the reader will understand what the author has written. An important part of the legal editor’s job is to determine whether the author has left any unanswered questions in the reader’s mind. The editor serves as a link between the authors (who are usually quite knowledgeable about the subject matter) and the readers (who may not be).

As I said before, everything is always evolving into something else. What will attorney editors be like in the future? (I know I’ll be even older.) What if attorney editors evolve into a new species with computer-like brains so that they can do editing and cite-checking in their own minds? At least that would make it easier to work from home.

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Electronically Stored Information (ESI) and Litigation

This article is an excerpt from Oregon Civil Pleading and Practice, chapter 30, E-Discovery. For more information on this topic, go to the BarBooks™ online library or purchase a hard copy at a discount during our Summer Sale.

By Mark A. Friel

  INTRODUCTION

This chapter discusses key aspects of electronically stored information (ESI) in the context of civil discovery in Oregon courts. ESI generally refers to any information created or used in a digital environment, or stored on digital media. The Federal Rules of Civil Procedure were first amended in December 2006 to specifically address the discovery of ESI. The Oregon Council on Court Procedures has promulgated an amendment to ORCP 43, which took effect on January 1, 2012, to include “electronically stored information” within the definition of documents, and to include the following new provision (ORCP 43 E):

E Electronically Stored Information. A request for electronically stored information may specify the form in which the information is to be produced by the responding party but, if no such specification is made, the responding party must produce the information in either the form in which it is ordinarily maintained or in a reasonably useful form.

Reported decisions under Oregon state law are practically nonexistent with respect to ESI, and there is very little guidance for state courts apart from the more developed case law under the Federal Rules of Civil Procedure. For example, see Conference of Chief Justices, Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information (2006) (noting the lack of guidance relating to ESI under state law, and making frequent references throughout the publication to the federal rules and federal case law) (available at <http://www.ncsc.org/Topics/Civil/Civil-Procedure/Resource-Guide.aspx>).

Relying mostly on developments under federal law, this chapter explains some of the basics of ESI, why it is different from traditional forms of discovery, how to effectively manage the process of ESI preservation and production, and the sanctions the courts use to deal with the mishandling of ESI. The final section (§30.6) offers further reading in this rapidly evolving area.

   BASICS OF ELECTRONICALLY STORED INFORMATION (ESI)

Sources of ESI

In Zubulake v. UBS Warburg LLC, 217 FRD 309 (SDNY 2003), in the first of a series of famous opinions on electronic discovery, the court explained that

[f]ive categories of data, listed in order from most accessible to least accessible, are described in the literature on electronic data storage:

1.     Active, online data: “On-line storage is generally provided by magnetic disk. It is used in the very active stages of an electronic records [sic] life—when it is being created or received and processed, as well as when the access frequency is high and the required speed of access is very fast, i.e., milliseconds.” Examples of online data include hard drives.

2.     Near-line data: “This typically consists of a robotic storage device (robotic library) that houses removable media, uses robotic arms to access the media, and uses multiple read/write devices to store and retrieve records. Access speeds can range from as low as milliseconds if the media is already in a read device, up to 10–30 seconds for optical disk technology, and between 20–120 seconds for sequentially searched media, such as magnetic tape.” Examples include optical disks.

3.     Offline storage/archives: “This is removable optical disk or magnetic tape media, which can be labeled and stored in a shelf or rack. Off-line storage of electronic records is traditionally used for making disaster copies of records and also for records considered ‘archival’ in that their likelihood of retrieval is minimal. Accessibility to off-line media involves manual intervention and is much slower than on-line or near-line storage. Access speed may be minutes, hours, or even days, depending on the access-effectiveness of the storage facility.” The principled difference between nearline data and offline data is that offline data lacks “the coordinated control of an intelligent disk subsystem,” and is, in the lingo, JBOD (“Just a Bunch Of Disks”).

4.     Backup tapes: “A device, like a tape recorder, that reads data from and writes it onto a tape. Tape drives have data capacities of anywhere from a few hundred kilobytes to several gigabytes. Their transfer speeds also vary considerably . . . The disadvantage of tape drives is that they are sequential-access devices, which means that to read any particular block of data, you need to read all the preceding blocks.” As a result, “the data on a backup tape are not organized for retrieval of individual documents or files [because] . . . the organization of the data mirrors the computer’s structure, not the human records management structure.” Backup tapes also typically employ some sort of data compression, permitting more data to be stored on each tape, but also making restoration more time-consuming and expensive, especially given the lack of uniform standard governing data compression.

5.     Erased, fragmented or damaged data: “When a file is first created and saved, it is laid down on the [storage media] in contiguous clusters . . . As files are erased, their clusters are made available again as free space. Eventually, some newly created files become larger than the remaining contiguous free space. These files are then broken up and randomly placed throughout the disk.” Such broken-up files are said to be “fragmented,” and along with damaged and erased data can only be accessed after significant processing.

Zubulake, 217 FRD at 318–319 (footnotes and internal citations omitted). Of these five categories of electronically stored information (ESI), “the first three categories are typically identified as accessible, and the latter two as inaccessible.” Zubulake, 217 FRD at 319–320. The distinction the court in Zubulake drew between “accessible” and “inaccessible” ESI is, as explained in §30.4-5, relevant to a party’s obligations under the discovery rules.

Even within the various categories of accessible and inaccessible data, ESI includes not only that information that the user created intentionally (such as the text of a word processing file), but also any information created by the device on which the file is created, used, or stored (such as the date the file was created, the file’s author, the identity of anyone who may have edited the file, and a history of edits made to the file). This “metadata” is also a form of ESI and potentially subject to discovery. See, e.g.,
Romero v. Allstate Ins. Co., 271 FRD 96, 103 (ED Pa 2010) (“‘the producing party ordinarily must take into account the need for metadata to make otherwise unintelligible documents understandable'” (quoting Ford Motor Co. v. Edgewood Props., 257 FRD 418, 425 (DNJ 2009))).

Difficulties of Handling ESI

Electronically stored information (ESI) is unlike traditional documents. It does not reside in a drawer, in a filing cabinet, or on a shelf in a warehouse. It cannot be photocopied and simply handed over to another party in response to discovery requests. Perhaps most importantly, it is much easier to lose, alter, or destroy ESI than traditional documents. A simple keystroke could overwrite, alter, or destroy vast quantities of information in a matter of seconds.

It is because of the ease with which ESI can be lost, altered, or destroyed that the 2006 amendments to FRCP 37 added a new section providing:

Failure to Provide Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

FRCP 37(e); see also FRCP 37(e), 2006 Advisory Committee notes (“The ‘routine operation’ of computer systems includes the alteration and overwriting of information, often without the operator’s specific direction or awareness, a feature with no direct counterpart in hard-copy documents.”). FRCP 37(e) is not an automatic out for parties who have allowed relevant, accessible ESI to be altered, overwritten, or otherwise lost. In its commentary on the new provision, the Advisory Committee explained:

Rule 37[(e)] applies to information lost due to the routine operation of an information system only if the operation was in good faith. Good faith in the routine operation of an information system may involve a party’s intervention to modify or suspend certain features of that routine operation to prevent the loss of information, if that information is subject to a preservation obligation. A preservation obligation may arise from many sources, including common law, statutes, regulations, or a court order in the case. The good faith requirement of Rule 37[(e)] means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve. When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a “litigation hold.” Among the factors that bear on a party’s good faith in the routine operation of an information system are the steps the party took to comply with a court order in the case or party agreement requiring preservation of specific electronically stored information.

FRCP 37(e), 2006 Advisory Committee notes (former FRCP 37(f)); see also
Disability Rights Council of Greater Wash. v. Wash. Metro. Transit Auth., 242 FRD 139, 146 (D DC 2007) (“Rule [37(e)] does not exempt a party who fails to stop the operation of a system that is obliterating information that may be discoverable in litigation”).

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Job Opportunity at the OSB

Assistant Disciplinary Counsel – Probation and Enforcement

The Oregon State Bar is looking for someone to provide counsel to the OSB in the pursuit of enforcement proceedings arising out of probationary judgments and in the evaluation, investigation, and litigation of ethics complaints made against Oregon lawyers.

The Bar invites all interested applicants to submit a cover letter and resume. Please visit http://www.osbar.org/osbcenter/openings.html for job details and information about how to apply.

The Oregon State Bar is an Equal Opportunity Employer.

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He Said, She Said

By Ian Pisarcik, Legal Publications Attorney Editor

One of my favorite cartoons depicts a young female student standing next to a tall male teacher. Both are staring at a chalkboard. The chalkboard reads: Stone Age Man, Bronze Age Man, and Iron Age Man. The speech bubble extending from the young girls mouth asks: “Did they have women in those days?”

“Gender-neutral language is achieved by avoiding the use of ‘gendered generics (male or female nouns and pronouns used to refer to both men and women).” This is easier said than done. But so is carrying a tune, and that doesn’t stop nine out of ten I-5 drivers from pulling their lips back and pretending they’re Mick Jagger.

The Oregon Appellate Courts Style Manual states that “[g]ender-neutral terms are preferred, and gender-based pronouns are avoided except when referring to a specific person.” The style guide suggests using “he or she” only when all other constructions fail. The Oregon State Bar Legal Publications Department asks authors to avoid gender-based pronouns as well, but actually recommends the “he or she” construction.

In most cases, this is straightforward (albeit, a little clumsy). The defendant has the burden of raising his Confrontation Clause objection becomes the defendant has the burden of raising his or her Confrontation Clause objection, or the defendant has the burden of raising the defendant’s Confrontation Clause objection.

But things can get tricky when writers decide to alternate between masculine and feminine pronouns. Not only does this tend to confuse the reader, but a recent study conducted by researchers at New Mexico State University found that (1) readers perceive alternating pronouns to be just as gender-biased as masculine pronouns, and (2) readers consistently rate writing featuring alternating pronouns as lower in quality than text with generic masculine pronouns.

Further complicating things are the countless terms that feature the word man. Some are easy to spot and fix: policeman should become police officer, serviceman should become serviceperson. But, there are others that are not as easy to spot or fix: manpower, manhole, ombudsman, penmanship, freshman, and middleman among them.

Achieving gender-neutral writing takes some effort. But it is an effort that most states are making and that OSB Legal Publications wholeheartedly embraces. And the fact that the United States Supreme Court lags behind in this regard should serve only as further motivation for lawyers concerned with eliminating subtle sexism in the field.

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And/Or

By Ian Pisarcik, Legal Publications Attorney Editor

Lodged somewhere between income disparity and climate change on the list of greatest threats facing the nation is the use of and/or. I am kidding of course. But on any given afternoon you are likely to encounter one of our editors groping the wall muttering “say what you mean, say what you mean” in response to the unhinged use of this expression. It’s not just persnickety editors that have trouble with the expression¾okay, mostly it is, but the courts don’t like it either! The expression is responsible for two of the most biting lines ever written in an opinion:

[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, 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.

Employers’ Mut. Liab. Ins. Co. of Wisconsin v. Tollefsen, 219 Wis 434, 263 NW 376, 377 (1935).

It is one of those inexcusable barbarisms which were sired by indolence and dammed 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. The coiner of it certainly had no appreciation for terse and concise law English.

Cochrane v. Florida E. Coast Ry. Co., 107 Fla 431, 435, 145 So 217 (1932).

The problem isn’t that and/or has no meaning; it does (one or the other or both). The problem is that it is ambiguous at best and flat-out wrong at worst. As Bryan Garner puts it, “about half the time, and/or really means or; about half the time, it means and.” For example, if a sign says “no food or drink allowed,” it certainly doesn’t mean that you can have both.

So how do you avoid this problem? The answer, as the muttering editor will tell you, is to simply say what you mean. If you mean or, say or; if you mean and, say and; if you mean one or the other or both, say just that. For example, the defendant may be charged with unlawful arrest or malicious prosecution, or both.

Otherwise, you will continue to risk the wrath of judges or attorney editors, or both.

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