Feel Free to Agree, Disagree, and/or Reserve Judgment

Somebody recently proposed to me that Big & Tall shops be renamed Big and/or Tall shops. After all, one need not be both big and tall to shop there. One could be big, or tall, or both big and tall.

Big and/or Tall shops, though, are nowhere to be found. I think that's just as it should be. I have never been a fan of and/or.

Yet to my dismay, this odd conjunctive/disjunctive connector abounds in legal writing. In fact, when I see a list with and/or in it, I just *know* that a lawyer compiled it.

Exhibit one is Prof. Volokh's Eschew, Evade, and/or Eradicate Legalese. The title is, of course, humorous because it contains one of legalese's greatest transgressions: and/or. In his list of clunkers that lawyers should avoid, however, Prof. Volokh *omits* and/or. He omits it!

If that's not license to continue using this linguistic contortion, I don't know what is.

I recently came across a terrific Judge Fowler opinion. I think he actually felt more strongly about and/or than I do. In his opinion, Judge Fowler describes and/or as

that be fuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of some one 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. We have even observed the "thing" in statutes, in the opinions of courts, and in statements in briefs of counsel, some learned and some not.

Employers Mut. Liab. Ins. Co. v. Tollefsen, 219 Wis. 434, 437 (1935).

Lawyers, please try to avoid this verbal monstrosity. If you do, you'll sound more like a "normal person" (read non-lawyer) when you write.