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:
- A majority vote of a quorum consisting of directors who are not parties to such proceeding;
- Approval of the members with the persons to be indemnified not being entitled to vote thereon; or
- Approval of the court in which such proceeding is or was pending.
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
a,
b,
c, and
d
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
d
It worked. In the next test, we could hear them discussing how "all these things have to be proved."
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