The Perfesser gave a short corporate law quiz yesterday. He asked what the following clause in an employment agreement means:
"Cause" shall be defined as Employee's conviction, by a court of competent jurisdiction, of a felony, theft of Company property, or a crime of moral turpitude, or gross negligence in the performance of Employee's duties.
"Contract Interpretation Quiz" (08 Feb 04)
As he noted, the Corporate Law Blawg provides a detailed justification for using clause identifiers. Although this is a perfectly valid solution, it still results in really bad writing. First, it assumes that a list must be a single sentence. It's certainly an easier-to-parse sentence; but it is the kind of sentence that will glaze over the eyes of the people who most need to read it. Lists are lists; treating them like sentences results in dependent patent clauses, which make the Perfesser's example seem like child's play.
Let's assume for the moment, though, that some quirk in local law requires that everything appear in one sentence. There is still a better way to handle it: invert the order of the list. Merely inverting the order removes all ambiguity:
"Cause" means either gross negligence in the performance of Employee's duties or Employee's conviction, by a court of competent jurisdiction, of a felony, theft of Company property, or crime of moral turpitude.
Although not elegant (even after substituting plain English for legalese), this revision is unambiguous. It is based on one of the rules of good writing: unless there is a causal or temporal need for a specific order of a listing that includes dependent or compound elements within a single sentence, put the longest one last. This is even more important when there are both conjunctive ("and") and disjunctive ("or" or "exclusive or") elements. Here's a D- in basic composition to the lawyer who drafted the clause (it's not an F, because it is still possible to make a pretty unarguable interpretation of the clause; one doesn't get "convicted" of "gross negligence," so the "gross negligence" must be a distinct condition from the three criminal convictions). Obviously a graduate of Harvard.