By Bill Yanger
It can give a guy goosebumps.
The world of contract drafting, contract interpretation and ultimately contract litigation and disputes is full of scintillating decisions and chicken-skin moments. Really, finding the right word for an anticipated scenario in a prickly high-stakes negotiation requires determined thought and consideration. Reviewing the work i.e. words chosen by other legal matadors necessarily involves a sharpened sense of critique and nuance. Standing in front of a judge and advocating for or against the meaning of a word or phrase, my particular happy place, can be heaven or hell but it's always a thrill.
And you thought lawyering was a yawn and a nap.
This fever for words was reignited upon reading a case published today out of Florida's Second DCA smartly authored by Judge Marva Crenshaw. In Agile Assurance Group, Ltd and Agile Assurance (USA), LLC v. Charles H. Palmer Case No. 2D13-5470 (Fla. 2nd DCA 2014) Judge Crenshaw tackles the word "may" in the context of a forum selection clause (essentially the part of a contract identifying where the parties agree to sue one another should the deal blow up).
In Agile, the parties entered into an employment agreement that presumably contained all of the usual employment contract stuff about job duties, pay rates, non-compete, confidentiality etc. etc. The parties also agreed that "any legal suit...may be instituted exclusively in the courts of Makati City and Employee waives any objections...to such venue..."
So, it appeared that the parties were on the same page that if things went bad, Agile and Charles were going to be walking the floors of the courthouse in Makati City, right? (Oh yeah, that would be Makati City in the Philippines, 9,300 miles away from where Charles lives in Florida). Well, perhaps short on frequent flyer miles, Charles filed suit in Tampa instead. As you may have guessed by now, that tiny three-letter word "may" threw enough doubt into the fray to require a trial judge's ruling (in Charles' favor) and then Agile's appeal. Maybe Makati City is splendorous this time of year but we're guessing Agile has its home office there. Familiar turf and all that.
Without getting too bogged down in the riveting concepts of permissive and mandatory language and its interpretation by courts everywhere, suffice it say that mingling the word "may" (which infers a choice) and "exclusively" (which nixes choice) in the same sentence created a problem 9,300 miles long. The trial judge, a studious and careful jurist widely respected for his thoughtful and well-reasoned rulings, determined that "may" means "may" and supported his findings in favor of Charles filing suit in Florida with sound "well-settled" authority.
But Judge Crenshaw saw things differently, as appellate courts often do. And in a particularly snappy portion of her opinion laid out the Court's conundrum:
"In this case, we must choose to either read may as the mandatory shall and effectuate the word exclusively or read the term exclusively at the expense of may."
That is just so awesome.
She goes on to find that "exclusively" actually does mean "exclusively" at least in this case, and made Agile very happy, we suppose, by effectively sending any lawsuit Charles wants to file back to Makati City.
I know, I know, you're like, "Yanger, get a life." But hear me out.
If you own a business, do business with a business, enter into contracts as a business or for a business, or if your livelihood now and for the foreseeable future depends upon what that thing you're signing actually says, words matter. Even skinny little three-letter words like "may" hiding out in what was probably a beefy dozen-page contract. Ask Charles, who will now have to fly half-way around the world to pursue his claims (assuming he doesn't ask the Florida Supreme Court to delve into the depths of "may" as well).
The subtext, of course, is that those of us (aka, lawyers) who get all squiggly over parsing the meaning and context of words in legal documents and then persuading judges how right we are, welcome the opportunity to talk to you about the words in your documents.