I’ve been trying to cut through the hoopla over the adult film actress Stormy Daniels’s case against Donald Trump (and note I’m avoiding the moniker porn star, ignorant as I am as to the degree of Daniels’s pre-eminence in her field*) to study the language of the agreement she signed. I’m not a lawyer, nor do I play one on TV, but my father was a judge and held forth at length over dinner about the trouble lawyers got themselves into with him when they drafted sloppy agreements. In particular, in this case, much seems to hinge on how we understand and/or.
In the old-fashioned English classes at the old-fashioned school I attended (yes, we diagrammed sentences), I was taught to avoid and/or. It was not a word, my teachers insisted, and it offered nothing that was not already denoted by either and or or. I have not found this advice to be strictly true. If I’m inviting someone to dinner and tell her she can bring one and/or two friends, then yes, I can say the same thing by telling her she can bring one or two friends. If I tell her she can bring Michael and Jane, I’m probably OK with her bringing one of them. But if I propose that for dessert we serve ice cream and/or pie, my suggestion isn’t adequately covered by proposing ice cream and pie or by proposing ice cream or pie. “Ice cream or pie” forces a choice; “ice cream and pie” proposes a combination; “ice cream and/or pie” suggests that I’m fine with either one or with the combination. Yes, as my English teacher used to point out, you could say “ice cream or pie or both,” but that’s more words (well, one more word). Or as my colleague Geoff Pullum put it on Language Log a decade ago, ” Does and/or mean “and and or”, or “and or or”?”
In the Stormy Daniels case, much apparently hinges on the opening paragraph of the Non-Disclosure Agreement, in which the text reads:
This Settlement Agreement and Mutual Release (hereinafter, this “agreement”) is made a deemed effective as of the 28 days of October, 2016, by and between “EC, LLC,” and/or DAVID DENNISON (DD), on the one part, and PEGGY PETERSON (PP), on the other part.
In ordinary language, that sounds to me like the “one or two friends” example. That is, it seems as though David Schwartz, the lawyer for Michael Cohen (of Essential Consultants, LLC, according to Daniels’s complaint), is correct when he argues that despite the blank line at the end of the contract above the initials “DD” (David Dennison, the alias, according to the complaint, for Donald Trump), Cohen’s signature should be sufficient to seal the deal with “PP,” the alias for Stephanie Clifford, otherwise known as Stormy Daniels.
Not so fast. On Anderson Cooper 360°, Daniels’s attorney, Michael Avenatti, argued (at about 14 minutes into this clip) that and/or is a “term of art” in California legal discourse, “and it’s in the conjunctive.” I went looking for that term of art. I didn’t find much. But I did learn that legal scholars warn strongly against using it, precisely because and is conjunctive and or is disjunctive, ideas that are in effect each other’s opposite. For instance, from the California Law Review, we have this:
The anomalous “and/or”, which is consistently frowned upon by the courts for uncertainty, is replaced by the appropriate conjunctive or disjunctive; or, in a proper case it is replaced by “ … or …, or both”, or by similar phrases accurately expressing the legislative intention.
Referring to “the abomination that is ‘and/or,’” the Canadian legal writer Ted Tjaden acknowledges the history of and/or in legal writing, but goes on to cite cautions from just about every style guide you can find. One of my favorites, Robert C. Dick’s Legal Drafting in Plain Language, observes that and/or “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.”
Another group of Canadians, while acknowledging that their legal understandings may not completely qualify them to opine on the Daniels case, cannot resist pointing out the obvious solution to the and/or ambiguity:
We note that, from our perspective, the addition of a corporate party to the NDA could have been used very effectively to insulate DD with a little more careful drafting. The addition of a simple provision stating that EC was DD’s agent and had the authority to bind or sign on behalf of DD, or that DD was a “third party beneficiary,” would answer the question: “Why didn’t DD sign?” and would have taken away PP’s argument that the NDA is invalid because DD failed to sign.
I don’t recall my father carrying on about and/or, though I’m certain he would have disapproved of its use. Given the disdain in which the phrase seems to be held by much of the profession, I suspect that particular clause will be set aside and the case — and perhaps Stephanie Clifford’s financial solvency or the future of Donald Trump’s presidency — decided on very different grounds.
*The New Republic would beg to differ with me on Daniels’s moniker.