Surveys have become an accepted method of evaluating consumer perceptions in a wide range of cases. However, when it comes to interpreting contracts, it is often the judge or jury who are tasked with interpreting the text.

For example, a California appellate panel recently disagreed with the lower court’s interpretation of a contract between Los Angeles County Metropolitan Transit Authority and a contractor, reversing a $93 million judgment. Judges and juries interpret contract clauses based on their view of a contract’s plain meaning, precedents construing similar language, interpretive canons and perhaps common sense or extrinsic evidence. But courts generally do not have the benefit of survey evidence, which could inform judges what ordinary consumers who read the contract understand it to mean.

In a newly published article in New York University Law Review, two of us have proposed an alternative approach.[1] We suggest surveying consumers similar to those bound by the contract in question to determine which meaning of a disputed term is embraced by a clear majority. If no clear winner emerges, the term at issue would be considered ambiguous.

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