Litigating the Meaning of Contract Language? Consider Retaining an Expert – Part II

June 6, 2016

check-list(Editor’s Note: This is part two in a two-part series that explains how to reduce the chances of the confusion that results when a judge or litigator without a grounding in the subject analyzes ostensibly ambiguous contract language.)

Litigator Confusion

If a court misreads disputed contract language, that might well mirror confusion on the part of the litigators representing one or both sides.

One would like to think that if a coherent interpretation were available, the litigators who would stand to benefit from it would present that interpretation in an authoritative and compelling way.

But you can’t count on that. For one thing, just as lawyers tend to think that they write better than they actually do, I suspect that litigators are prone to overestimating their semantic acuity. And many litigators don’t understand how contract language works—they make the mistake of assuming that it’s like the persuasive writing used in litigation, whereas it’s more limited and stylized.

Dynamic Aviation Group features what appears to be an additional instance of litigators misreading contract language. Here’s what the court says about the meaning of the phrase substantially similar:

[The plaintiffs] claims this phrase is unambiguous because it can be given a plain and ordinary meaning. [The defendant] disagrees, and argues that “substantially similar” is ambiguous because reasonable people can disagree as to its meaning in this contract.

In fact, the phrase substantially similar isn’t ambiguous, it’s vague. Vagueness arises when determining whether a given standard has been satisfied is a function of the circumstances, with the possibility of dispute over borderline cases. Perhaps the defendant’s counsel intentionally invoked ambiguity instead of vagueness, but it might be that they, like most lawyers, were unaware of the distinction. If you’re unable to distinguish the different sources of confusion in contracts, you’re perhaps ill-equipped to analyze the meaning of disputed contract provisions.

Expert Testimony

One way to address confusion over the meaning of disputed contract provisions is to engage an expert. But U.S. courts generally decline to admit expert testimony on whether contract language is ambiguous. Instead, expert testimony is admissible only as to the technical meaning of contract language. (See my blog post here.) In my experience, some courts are willing to entertain expert testimony, but perhaps only because they’re unaware of the prevailing practice.

It makes no sense to refuse to admit expert testimony on ambiguity. It’s clear from the caselaw that you can’t assume that judges are equipped to analyze ambiguity, any more than you can assume that a careful driver knows how to service a car engine.

Allowing expert testimony on ambiguity would help litigants present judges with a basis for sensible analysis of disputed contract provisions. Such testimony would also remind judges of their limited expertise in this area. But judges might resist, as admitting expert testimony on ambiguity would presumably result in more briefs and longer trials.

Even if expert testimony on ambiguity isn’t admissible, litigants could nevertheless derive most of the benefit of expert testimony by retaining experts to help them behind the scenes. What matters most is that someone put an expert analysis before a judge. For example, if the defendant in Dynamic Aviation Group had retained an expert, the defendant might have persuaded the court that the plaintiffs’ reading of clause (ii) wasn’t viable. Suitable citations in briefs would make it clear that the litigators have tapped into relevant expertise.

But be careful whom you retain as an expert. It’s not enough that the expert be a linguist or an expert in litigation writing. (For a cautionary tale of what can happen when you retain as an expert someone with a background in litigation writing, see this blog post.) Look for someone with credentials as a commentator on contract language.