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Plain Language

"Any and All": To Use Or Not To Use?

So what about "any and all"? Is it to allow time for the listener to take in
By David S. Elder really necessary, or can it be discarded the speaker's point. Third, where one
as archaic and redundant? Death by of the words might be unfamiliar, the
I was given a rough time recently by purposeful neglect or continued exis- synonym served as a gloss. Finally,
two friends about what they described lawyers distrusted their ability to find
tence by legal need, that is the question.
as "the pompous verbiage that lawyers the right word, and therefore used a
Webster's Ninth New Collegiate Dic-
use for language." One of them said, "I verbal scattergun insteadof a rifle shot.
suppose you lawyers refer to Dana's tionary (Merriam-Webster, 1984), p 93, As a result, we still use phrases such
classic as Two Years Prior to the gives the following as one definition as these:
Mast." The other added, 'And you prob- of the word "any": "2: one, some, or all
indiscriminately of whatever quantity: agree and covenant
ably call that popularpoem of Kipling's
'In the Event That."' Was there any an- a: one or more-used to indicate an all and singular
swer I could make? undetermined number or amount." any and all
-Williard, 49 ABA J 934 (1963) And the reverse is also true. One
erhaps this simple anecdote says definition of "all" is "any whatever." Id.,
it all. But does it really? p 71. In other words, "any" is broad Reed Dickerson, in his Fundamentals
Lawyers, for as many years as enough to include "all," and "all" can of Legal Drafting (2d ed, Little, Brown,
there have been lawyers, have debated mean any one. 1986), p 208, agrees that the drafter
the use of plain language in their speech Even more convincing is Black's Law should avoid "any and all" and similar
and written work. Is the use of "le- Dictionary (6th ed), p 94, which de- pairs one of which includes the other.
galese" and redundant phrases a self- fines "any" as follows: The drafter "should use the broader or
protecting language that lawyers use "Some, one out of many; an indefinite narrower term as the substance re-
to insulate themselves from the rest number. One indiscriminately of what- quires." Id.
of society? Do lawyers use phrases ever kind of quantity .... '[Alny' has a Still other commentators have called
such as "hereby" and "party of the diversity of meaning and may be em- for the abandonment of "any and all."
first part" simply because these terms ployed to indicate 'all' or 'every' as well In Squires and Mucklestone, A Simple
have become reflexive Pavlovian legal as 'some' or 'one' and its meaning in a "Simple"Will, 57 Wash L R 461 (1982),
language? given statute depends upon the context the authors set forth a guide for wills
and the subject matter of the statute. that is simple in form yet sophisticated
And most important, when may fine
It is often synonymous with 'either,'
distinctions in meaning influence the 'every,' or 'all."' (Citations omitted; in substance. "The authors attempted
outcome of a case? Certainly one of emphasis added.) to avoid both unneeded precision and
the greatest fears that a lawyer faces vagueness and instead attempted to
is the possibility of an adverse judg- Authorities on legal writing have make statements general whenever
ment because of misusing a word or urged writers to avoid using "any and possible." Id., p 463. This article in-
phrase. all." Bryan Garner's Elements of Legal cludes a list of recurring phrases that
Style (Oxford University Press, 1991), can be consistently shortened or sim-
pp 187-188, convincingly recommends: plified. And the list includes a phrase
"Plain Language' is a regular feature of the "7.10. Instead of Using Doublets or that we have come to know quite well.
Michigan Bar Journal, edited by Joseph Triplets, Use a Single Word.
Kimble for the State Bar Plain English Com- Unrevised Phrases
Among the lawyer's least endearing
mittee. Assistant editor is George H. Hathaway. and Words Revised To
habits is to string out near-synonyms.
Through this column the Committee hopes to
The causes are several. First, the lan- in respect to, of to
promote the use of plain English in the law.
guage of the law has its origins in the any and all all
Want to contribute a plain English article?
unhurried prose of centuries past. Sec- all or any part any
Contact Prof. Kimble at Thomas Cooley Law
ond, the strong oral tradition in Eng- in the event that if
School, P.O. Box 13038, Lansing, MI 48901.
land led inevitably to a surfeit of words aforesaid [omit or specify]

JOURNALOCTOBER
BAR JOURNAL
1991
MICHIGAN BAR
MICHIGAN OCTOBER 1991
PLAIN LANGUAGE

Unrevised Phrases cery' in 'any circuit court.' Any' means not 'some,' the legal conclusion follows
,every,' 'each one of all."' that the defendant is entitled to retain
and Words Revised To
to make any such the earned renewal commissions aris-
distributions to distribute In a later case, the Michigan Su- ing from its agency contract with Gib-
provided that if preme Court again held that the use of son and cannot be held legally liablefor
"any" in an agency contract meant "all." same in this action," Gibson at 287
property of every kind
and character any property In Gibson v AgriculturalLife Ins Co, 282 (quoting the trial court opinion).
said, such, same [omit] Mich 282, 284; 276 NW 450 (1937),
expiration end The Michigan Court of Appeals has
the clause in controversy read:
similarly interpreted the word "any" as
Despite all of this advice, "any and used in a Michigan statute. In McGrath
"14. The Company shall have, and is
all" finds its way into lawyers' speech, hereby given a first lien upon any com- v Clark, 89 Mich App 194; 280 NW2d
memorandums, briefs, and opinions, missions or renewals as security for 480 (1979), the plaintiff accepted de-
and most often into insurance and any claim due or to become due to fendant's offer of judgment. The offer
indemnification contracts. the Company from said Agent." (Em- said nothing about prejudgment inter-
The Michigan Supreme Court seemed phasis added.)
est. The statute the Court examined
to approve our dictionary definitions was MCL 600.6013; MSA 27A.6013:
The Gibson court was not persuaded
of "any" in Harringtonv Interstate Busi-
ness Men's Accident Ass'n, 210 Mich 327, by the plaintiff's insistence that the
"Interest shall be allowed on any money
330; 178 NW 19 (1920), when it quoted word "any" meant less than "all": judgment recovered in a civil action...."
Hopkins v Sanders, 172 Mich 227; 137 "Giving the wording of paragraph14 oJ
NW 709 (1912). The Court defined the agency contract its plain and un- The Court held that "the word 'any' is
"any" like this: to be considered all-inclusive," so the
equivocable meaning, upon arriving at
"In broad language, it covers 'arl'v final the conclusion that the sensible conno- defendants were entitled to interest.
decree' in 'any suit at law or in chan- tation of the word any' implies 'all' and McGrath at 197.

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OCTOBER 1991 MICHIGAN BAR JOURNAL


PLAIN LANGUAGE

Recently, the Court has again held It is doubtful, however, that using preme Court was asked by the United
that "[alny means 'every,' 'each one of "any and all" instead of "any" would States Court of Appeals for the Sixth
all,' and is unlimited in its scope." have affected the outcome of this case. Circuit to certify three questions of law.
Parkerv Nationwide Mutual Ins Co, 188 It certainly would not have made this Among the issues was whether the leg-
Mich App 354, 356; 470 NW2d 416 particular clause any more specific. islature intended that MCL 600.2949;
(1991) (quoting Harrington v Inter- Moreover, the Court of Appeals MSA 27A.2949 (comparative negligence
State Men's Accident Ass'n, supra). seemed to change its mind in Paquin statute) apply to products liability ac-
On the other hand, at least one panel v Proksch Construction Co, 113 Mich tions sounding in implied warranty.
has held that "any" as used in an in- App 43; 317 NW2d 279 (1982). In
"Section 2949. (1) In all products
demnification contract was wanting for Paquin, the contract again rolled out liability actions ....the fact that the
vagueness. In Geurink v Herlihy Mid- the doublets: plaintiff may have been guilty of con-
Continent Co, 5 Mich App 154, 156- tributory negligence shall not bar a re-
157; 146 NW2d 111 (1967), an indem- "The Contractorshall ...indemnify and covery by the plaintiff or the plaintiff's
nification contract contained the fol- hold harmless the Owner... from and legal representatives,but damages sus-
lowing language: against any and all claim or claims tained by the plaintiff shall be dimin-
arising out oJ the Work performed by ished in proportion to the amount of
"The subcontractor hereby waives and the Contractor or any subcontractor; negligence attributed to the plaintiff"
releases the general contractor from also, the Contractorshall pay, liquidate (Emphasis in opinion.)
all liability for injuries to persons and and discharge any and all claims or
demandsfor bodily injury.., alleged or "Section 2945. As used in sections 2946
damages to and loss of property which
claimed to have been caused by, grown to 2949 and section 5805, 'products
the subcontractor may suffer or sustain
out of or incidental to the performance liability action' means an action based
in performance of this subcontract, or
of the Work performed by the Contrac- on any legal or equitable theory of li-
in connection herewith; and the subcon-
tor or any subcontractor .... "Paquin at ability brought for or on account of
tractor hereby agrees and covenants to
280. (Emphasis added.) death or injury to person or property
indemnify and hold harmless the gen-
caused by or resulting from the manu-
eral contractorfrom all liability, claims,
An injury occurred to the contractor's facture, construction design, formula,
demands, causes of action and judg- development of standards,preparation,
ments arising by reason oJ any per- employee when an owner's employee
processing, assembly, inspection, testing,
sonal injuries or loss and damage to negligently moved an overhead crane,
listing, certifying, warning, instructing,
property suffered by or sustained by crushing the man's fingers. marketing, advertising, packaging, or
any of the subcontractor's employ- The Paquin court noted: "The in- labeling of a product or a component of
ees .... " (Emphasis added.) demnity provisions in the case at bar a product." (Emphasis in opinion.)
make abundant use of the words 'any'
The issue the Court faced was the lia- In both these statutes the legislature
and 'all' and of the phrase 'any and
bility of the general contractor for its chose not to use "any and all," but one
all' in describing the claims to which
own negligence. "The appellant [gen- or the other, to describe product lia-
the provision applies." Paquin at 50.
eral contractor] places great emphasis In holding for the indemnified owner, bility actions.
on the broad language 'any' damage the Court chose not to follow Geurink, The Court stated:
or injury suffered 'on' the site of the supra, stating that there could be no
work." Geurink at 158. "In §2949, the operative language is
broader classification than the word 'all products liability actions.' This lan-
The Geurink court held that the
"all," and that in its ordinary meaning, guage is defined in §2945 as follows:
broad all-inclusive language used in the
the word "all" leaves no room for ex- "'products liability action" means an ac-
contract did not insulate the general ceptions. Paquin, p 50 [quoting Pritts v tion based on any legal or equitable the-
contractor because it did not specifi- ory of liability.' It is difficult to imagine
J I Case Co, 108 Mich App 22, 30; 310
cally mention the general contractor's any language more all-inclusive." Karl
NW2d 261 (1981)1.
liability for its own negligence. It was at 568.
not clear that the parties agreed to this There's no reason to think that "any
and all" made the difference. The les- And the Court held:
type of indemnification.
son of these two cases is not that "any
and all" has an advantage over "any," "We believe that the Legislature's use of
but that on rare occasions either word the words 'all' and 'any' require,without
further interpretative inquiry, the con-
may be too vague to convey the par-
struction that comparative negligence
David Elder is a recent graduate of Thomas ties' intentions. applies to all and any products liability
Cooley Law School. He received his undergrad- One final example. In Karl v Bryant actions, including those sounding in im-
uate degree from Ohio University. Air Conditioning Co,416 Mich 558; 331 plied warranty." Karl at 569. (Empha-
NW2d 456 (1982), the Michigan Su- sis in original.)

JOURNAL
BAR JOURNAL OCtOBER 1991
MICHIGAN
MICHIGAN BAR OCTOBER 1991
PLAIN LANGUAGE

Thus, the Court, in its certified answer Words and Phrases (1991 Cum Supp),
to the Sixth Circuit, concluded that "all" pp 23-27.
meant "any." One word was enough. If all these authorities tell us that
Suppose that both statutes in Karl "any and all" is normally redundant,
had used "all," or both had used "any." then why not substitute "any" or "all"
Any difference? It's hard to imagine as the context requires? See Figure 1.
why there would be. This is one little symbolic step that
Other state courts have defined "any" lawyers can take in reducing the dou-
as synonymous with "every" and "all." blets and triplets that continue to
For instance, in Donohuev Zoning Board plague legal writing.
of Appeals, 235 A2d 643 (Conn, 1967), Perhaps the argument was best put
the court said the word "any" has a in a quote the author found while look-
diversity of meanings and may be em- ing for something else.
ployed to indicate "all" or "every" as
well as "some" or "one." The list of "Simplicity of characteris no hindrance
cases using this definition of "any" is to subtlety of intellect." John Viscount
exhaustive and may be found in 3A Morley, Life of Gladstone (1903). U

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