In the realm of legal writing, certain phrases are commonly used to convey complex ideas in a structured and standardized format. One such phrase is ‘and the following,’ a commonly encountered term in legalese. Though seemingly straightforward in casual conversation, its use in legal documents can carry significant weight. Understanding how and why this phrase is used is essential for anyone involved in drafting, reviewing, or interpreting contracts, pleadings, or legal statutes. This topic explores the meaning, purpose, and implications of using ‘and the following’ in legal language, shedding light on its application in various legal contexts.
Understanding Legalese: A Brief Overview
Legalese is the formal and technical language used in legal documents and proceedings. It often includes archaic words, long sentences, and repetitive phrasing. While the intention is usually clarity and precision, legalese can be challenging for laypeople to understand. Terms like ‘hereinafter,’ ‘aforesaid,’ ‘witnesseth,’ and ‘and the following’ are typical examples. These words serve specific functions and must be interpreted within the legal context in which they are used.
Definition of ‘And the Following’
The phrase ‘and the following’ is used in legal documents to introduce a list or enumeration that is meant to be included within the scope of a clause or provision. It implies that the referenced item, along with additional items that come afterward, are all included. It functions as a form of incorporation by reference, particularly in documents where precision and inclusion are critical.
For example:
- ‘This agreement applies to Exhibit A and the following schedules.’
- ‘The court reviewed the evidence in paragraph 5 and the following paragraphs.’
In these examples, the phrase signals that not only the item mentioned directly is relevant, but also those that come immediately after it.
Common Contexts for Using ‘And the Following’
1. Contracts and Agreements
In legal contracts, the phrase ‘and the following’ is often used to refer to a group of clauses, terms, or conditions. It helps identify a range of provisions that are bound by a particular rule or obligation. For instance, a warranty clause might state that certain obligations apply to ‘Section 3 and the following subsections.’
This usage ensures that there is no ambiguity about the scope of the reference, and it avoids the need to list every applicable section individually.
2. Statutory Interpretation
Statutes and regulations frequently use ‘and the following’ to indicate that a legal provision extends to multiple sections. A law might state that ‘violations under Section 10 and the following shall be subject to penalty.’ In this context, it serves as a drafting shorthand that encompasses a defined range within the statute.
3. Court Decisions and Pleadings
In judicial decisions or legal pleadings, attorneys and judges may use the phrase when citing evidence or procedural history. For instance, a brief might note that ‘testimony provided in Exhibit B and the following exhibits support the plaintiff’s claim.’ Here, the phrase is employed to prevent redundancy and streamline the citation process.
Legal Risks and Interpretive Issues
Potential Ambiguity
Despite its utility, the phrase ‘and the following’ can sometimes introduce ambiguity if the scope of ‘following’ is not clearly defined. If a document references ‘Section 12 and the following,’ but does not specify where the range ends, parties might dispute whether it includes only Section 13 or extends through Section 20. For this reason, many legal practitioners recommend clearly stating the beginning and end of any referenced sections when possible.
Contractual Disputes
Vague use of ‘and the following’ can lead to contractual disputes, especially when interpreting the obligations or rights of parties. If one party interprets the phrase narrowly and the other broadly, it may lead to litigation. Courts are then tasked with determining the original intent based on the document’s language and context.
Drafting Precision
To mitigate these risks, legal drafters often supplement the phrase with clarifying language. For example:
- ‘Section 5 and the following two sections…’
- ‘Paragraph 10 and the subsequent three paragraphs…’
These clarifications help ensure that all parties interpret the language consistently.
Alternatives to ‘And the Following’
Using Explicit Ranges
One effective way to avoid confusion is to replace ‘and the following’ with a direct enumeration. For example, instead of saying ‘Sections 2 and the following,’ a drafter might say ‘Sections 2 through 6.’ This not only clarifies the intent but also avoids potential disputes over interpretation.
Incorporation by Reference
In some legal documents, the drafter may choose to incorporate related sections by explicitly stating their inclusion. For example, ‘This Agreement shall include the terms set forth in Section 3, Schedule A, and all subsequent schedules incorporated herein by reference.’
This strategy creates a more structured and enforceable document by tying the reference to clearly identified components.
Judicial Interpretation of the Phrase
Courts have interpreted ‘and the following’ based on its ordinary meaning, context, and the intention of the parties. In case law, judges often rely on the document’s structure, headings, and related provisions to determine the intended scope. For example, if ‘and the following’ appears in a contract with clearly numbered sections and subsections, a court may use that structure to limit or expand the interpretation accordingly.
Judges are also likely to consider the principle of contra proferentem, which dictates that ambiguous terms in a contract should be interpreted against the interests of the party that drafted them. Therefore, unclear usage of ‘and the following’ may work to the disadvantage of the drafter.
Best Practices for Legal Drafting
To ensure legal documents are clear and enforceable, drafters should follow these best practices when using ‘and the following’:
- Clearly define the range of sections, paragraphs, or clauses being referenced.
- Use specific numerical ranges whenever possible.
- Review the document’s structure to ensure consistency with the intended reference.
- Consider adding explanatory language or footnotes when the scope may be unclear.
- Avoid overusing the phrase, especially in dense or complex documents.
The phrase ‘and the following’ is a common but nuanced part of legal writing. While it provides a useful tool for referencing multiple sections or items, it must be used with precision and care. Legal drafters, attorneys, and judges alike should be aware of its potential for ambiguity and strive to clarify its meaning wherever possible. By understanding its application and implications, parties can create clearer, more effective legal documents that stand up to scrutiny in both negotiations and courtrooms.