The $10 million comma

The $10 Million Comma

Good grammar – following the rules for commas, punctuation, and sentence structure – is considered by many to be essential for effective writing.  But in the age of informal writing via texting, social media, and email, does grammar really matter for quality legal writing anymore?

Legally speaking, yes, it does.

In 2014, three Maine truck drivers sued their employer over more than four years of overtime pay that they had been denied.  The case didn’t hinge on whether or not the employees actually put in the overtime, but rather centered on the lack of an Oxford (serial) comma in the state law describing overtime rules.

What is an Oxford comma?

Also known as a serial comma, an Oxford comma is placed before the word “and” or another conjunction in a series of three or more terms.  Some people put a comma there, others leave it out, and many people, including judges, have strong opinions regarding its use.

  • Regarding the case above, Maine’s overtime law states:
  • The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
  • (1) Agricultural produce;
  • (2) Meat and fish products; and
  • (3) Perishable foods.
  • Is Maine law written to exempt the distribution of the three categories listed, or does it mean to exempt packing for the shipping or distribution of them?

Delivery drivers distribute perishable foods but don’t pack the boxes.  Had there been a comma after the word shipment, it might have been clear that the law meant to exempt the distribution of perishable foods.  The U.S.

Court of Appeals for the Fifth Circuit found in favor of the drivers, stating that the absence of a comma in the statute produced enough uncertainty to rule in their favor.

  In the words of the lawyer who represented the drivers, “That comma would have sunk our ship.”

Grammar Key to Many Court Decisions
A comma (or lack of) has been instrumental in many U.S. court decisions throughout history, such as:

In 1872, one poorly placed comma in a tariff law, dubbed the most expensive typo in legislative history, cost Civil War era taxpayers more than $2 million, or $38,350,000 in today’s dollars.

Various interpretations of a comma in the Second Amendment of the U.S. Constitution have influenced court decisions on gun laws, as was the case in District of Columbia vs. Heller.

When Alabama rewrote their state code a number of years ago, an editor added an Oxford comma to the state’s definition of gasoline, igniting a million-dollar dispute over taxes owed.

In 2015, a North Carolina court took on the Oxford comma in Medfusion, Inc., v. Allscripts Healthcare Solutions, Inc., a contract case involving an online patient portal.  The Court ruled that the contractual provision was ambiguous, and neither party prevailed.

Read more:  Why should lawyers bother to write in plain English?

Bad legal writing is no laughing matter.  According to a Paralegal Today report, courts throughout the nation are “losing patience with attorneys and their poor writing skills.

”  Consequently, judges are not above dismissing complaints that contain excessive spelling errors, are poorly organized, and generally utilize bad grammar, and have been known to issue public reprimands requiring attorneys to take legal writing courses.

Bad legal writing not only reflects poorly on attorneys and the entire legal profession, but also can weaken cases and waste the time of judges, clients, and other legal professionals.  In the legal industry, wasted time is wasted money.

Legal writing is no different than any other form of writing in that it should follow all the applicable rules of grammar, such as:

  • Be written in complete sentences, preferably in active voice
  • Have subjects and verbs that agree with one another
  • Use the correct tense
  • Contain properly placed modifiers
  • Correctly use commas and other forms of punctuation

Read more:  The best books, blogs, and resources for legal writing

Where Did the Oxford Comma Come From, and Why Is It So Important?

It's not often that a piece of punctuation makes national headlines, so when one does, you know it must be pretty important.

Recently, the Oxford comma shot into stardom after becoming the crux of a $10 million class-action lawsuit against a Maine dairy company.

The comma in question (or rather, the missing comma in question) gained notoriety due to its absence from a state law. The law declares that overtime rules do not apply to the following: “The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods.”

With no Oxford comma following packing for shipment, it is unclear whether the law exempts the distribution of the three categories that follow or whether it exempts only the packing of the items in preparation for their shipment or distribution.

Clear as milk? (Get it? Because it's a dairy company?) Learn a bit more about what the Oxford comma is, where it came from, and why it's so important below.

What Is the Oxford Comma?

  • The Oxford comma, also called the serial comma or Harvard comma, is a much-debated piece of punctuation that occurs just before a coordinating conjunction in a series of three or more items.
  • For instance, in the below sentence, the Oxford comma is placed before and:
  • My favorite cheeses are Gouda, Havarti, and Brie.
  • In some style guides, such as that of the Associated Press (AP), the only time an Oxford comma is used is when it is necessary in order to accurately understand the sentence. Here's a popular example of a sentence in which the absence of an Oxford comma results in an inaccurate (and quite humorous) interpretation:
  • “This book is dedicated to my parents, Ayn Rand and God.”
  • Without a comma before and, it appears that the writer is specifying that his or her parents are Ayn Rand and God.
  • While many are passionately in favor of the Oxford comma for this reason, others loathe it, feeling that it interrupts the flow of a sentence and should only be used to avoid ambiguity.
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Where Did the Oxford Comma Come From?

Just as there is confusion about its use, there is also confusion about the origin of the Oxford comma.

Aldus Manutius (also known as Aldo Manuzio) was a 15th-century Italian printer who introduced the comma as we know it, as a way to separate things. The word comma comes from the Greek word koptein, which means “to cut off.”

The Oxford comma has been attributed to Horace Hart, printer and controller of the Oxford University Press from 1893 to 1915, who wrote Hart's Rules for Compositors and Readers in 1905 as a style guide for the employees working at the press.

However, at that time, the comma was not called the Oxford comma. In fact, it had no name until Peter Sutcliff referred to the Oxford comma in his 1978 book about the history of the Oxford University Press.

Sutcliff, however, credited F. Howard Collins with introducing the Oxford comma. Collins first mentioned it in his 1912 book, Author & Printer: A Guide for Authors, Editors, Printers, Correctors of the Press, Compositors, and Typists.

Why Is the Oxford Comma Important?

Regardless of who actually invented the Oxford comma, its purpose is to make a sentence clear, unambiguous, and understandable. So why does it also make people enraged, perplexed, and confused?

Many style guides, including the Chicago Manual of Style, American Psychological Association (APA), and American Medical Association (AMA), recommend the use of the Oxford comma to prevent ambiguity.

Yet others, including the AP style guide, Canadian Press (CP) style guide, and (shockingly) the University of Oxford style guide itself, use the Oxford comma only when a sentence could be misinterpreted by the reader without it.

Here's the problem, though, for those who do not consistently use the Oxford comma: when writing a sentence, you don't always realize that what you're writing could be misinterpreted. This is demonstrated quite clearly in the Maine lawsuit case above.

For most people, this ambiguity won't cost you $10 million. But it might cost you clarity, time, or reputation.

  1. Why not use the Oxford comma, just to be safe?
  2. The $10 Million Comma
  3. Image source: keem1201/Pixabay.com

Commas can make or break transcription (or the case of the $10 million comma)

The $10 Million CommaOakie, Oakhurst’s loveable mascot, seen here seemingly succumbing to exhaustion with a world-weary smile and an absent gaze. Unknown whether overtime was a factor.

Recently, my wife forwarded me a New York Times article about a lawsuit in my home state of Maine. This isn’t a common occurrence, for how often does one really lend much thought to labor disputes in their hometown? But this one had a special flavor to it, that speaks to the risk inherent in subpar transcription.

The article, by Daniel Victor,  “Lack of Oxford Comma Could Cost Maine Company Millions in Overtime Dispute,” presents a somewhat worst-case-scenario for the Oxford comma (or serial comma if you’re not prone to well-ripened narcissism).

Three truck drivers are suing Oakhurst Dairy for more than four years’ worth of unpaid overtime. The state’s overtime rules indicate that any work performed after 40 hours in one week, must be paid out at 1.5 times the normal rate. There are of course exceptions, and the lawsuit, and the $10 million at stake, hinges upon one missing Oxford comma.

An explanation of the Oxford comma (from Oxford Dictionaries no less) for those curious.

In effect, the Oxford rule states that a comma should precede the conjunction in the final list item. To use a common example of when the Oxford comma might be prudent:

A lack of an Oxford comma cost dairy $5 million

(CNN)A group of Maine dairy delivery drivers will receive $5 million in a proposed settlement for unpaid overtime, according to court records filed on Thursday.

A judge ruled in the drivers' favor last March, and it was all thanks to the lack of an Oxford comma in a Maine labor law.

An Oxford comma is the comma used after the second-to-last item in a list of three or more things, “item A, item B, and item C.” It's not often used in journalism.

The drivers' employer had claimed they were exempt from overtime pay, according to Maine's labor laws.

Part of the law exempts certain tasks from receiving overtime compensation. This is what the law's guidelines originally stated about exempted tasks:

  • The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
  • (1) Agricultural produce;
  • (2) Meat and fish products; and
  • (3) Perishable foods.
  • Without the Oxford comma, the line “packing for shipment or distribution,” could be referring to packing and shipping as a single act, or as two separate tasks.
  • The drivers argued that it reads as a single act, and since they didn't actually do any packing, they shouldn't have been exempt from overtime pay.
  • “Specifically, if that [list of exemptions] used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform,” the circuit judge wrote.
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According to court documents, the dairy, while denying any wrongdoing, believed further litigation would be protracted and expensive. The proposed settlement will be considered by a federal judge.

To prevent anymore Oxford comma drama, the Maine Legislature has since edited this exemption, replacing the punctuation with semicolons.

Grammarians rejoice in the $10 million comma

Portland-based company Oakhurst Dairy will potentially owe US$10 million to 75 milk-truck drivers in the US state of Maine because of a missing comma in a legal clause.

Last week, Judge David J. Barron upheld an appeal in a class-action lawsuit, opening his opinion with: “For want of a comma, we have this case.”

Three dairy-truck drivers sued Oakhurst Dairy in 2014 for four years of unpaid overtime wages. The case hinged on the missing comma after “packing for shipment” in the following clause of Maine state law, which lists exemptions from overtime:

The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

(1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods.

The missing comma, in this case, would have separated “packing for shipment” and “distribution” into distinct activities, both exempt from overtime. Without the comma, the drivers argued, the law refers only to the act of packing, for the purpose of either shipping or distributing.

There are other grammatical issues with this clause (neatly unpacked in more detail by Mary Norris in The New Yorker) but David Webbert, a lawyer for the drivers, told The New York Times: “That comma would have sunk our ship.”

Shutterstock

The contentious comma

This contentious comma is the serial comma, often called the “Oxford comma” and in some circles the “Harvard comma”. It comes before the final “and” or “or” in a series (a list of three or more items). For example, “Stone fruits include apricots, plums, and nectarines”.

Although some think it’s clunky, the Maine case strikes a blow for the importance of clarity. Consider this particularly spectacular example, supposedly from a TV listing in The Times:

By train, plane and sedan chair, Peter Ustinov retraces a journey made by Mark Twain a century ago. The highlights of his global tour include encounters with Nelson Mandela, an 800-year-old demigod and a dildo collector.

There are two lists in this example that omit the serial comma, although only the second really demands it to eliminate ambiguity. (It’s worth noting that, even with an additional comma that would prevent Nelson Mandela from being a dildo collector, the sentence is so poorly phrased he could conceivably still be an 800-year-old demigod.)

Maine legislature drafting guidelines actually recommend against using the serial comma, advising that any confusing sentence be entirely rewritten. But the appellate judge is obviously a fan, saying: “We would be remiss not to note the clarifying virtues of serial commas that other jurisdictions recognize.”

He elaborates by stating that both chambers of the federal Congress warn against omitting the serial comma “to prevent any misreading that the last item is part of the preceding one” and says that only seven of the American states (including Maine) “either do not require or expressly prohibit the use of the serial comma”.

I’m with the judge and the other 43 states. I am a lifetime devotee of the serial comma, believing that it ensures clarity and aesthetic consistency. For reasons that I have never been able to fathom, its mention inevitably evokes fierce controversy. More than 1,000 people commented on The Guardian website within 24 hours of the comma story being published last week.

You’re with me, or against me, or ambivalent

People either strongly advocate its use at all times (as I do); weakly (in my opinion) allow its use only if its absence could cause ambiguity; or dismiss it altogether by recommending that the sentence be rewritten so that ambiguity is not an issue.

Those who make exceptions to the “no-serial-comma rule” when a sentence would be confusing include the Australian government in its Style Manual for Authors, Editors and Printers. This doesn’t even mention the term “serial comma”, stating: “sometimes a comma is placed between the last two items to ensure clarity”.

The New Yorker uses the serial comma, according to its own style guide. The New York Times follows The Associated Press Stylebook, which gives a somewhat ambiguous (or possibly contradictory) example:

In a series use commas to separate items but no comma before a conjunction e.g. ‘We bought eggs, milk and cheese at the store.’

What’s happened to the comma that we have been told to use between the “milk” and “cheese” items?

Beatrice Potter used the serial comma. The Original Peter Rabbit Miniature Collection (1909)

Most key academic style guides recommend the serial comma. Robert Ritter, author of The Oxford Guide to Style, enthusiastically endorses it.

It has been part of Oxford University Press style for more than a century. The quintessential English author Beatrix Potter used it.

I have a china mug telling me that “Once upon a time there were four little rabbits: Flopsy, Mopsy, Cottontail, and Peter”.

On the other hand, educational guidelines have a more confused approach. The UK National Curriculum horrifyingly warns that “the mark will not be awarded if a serial comma is used in a list of simple items. For example, this would be unacceptable: We bought apples, cheese, and milk.”

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What happens in the Australian educational context?

New South Wales provides teachers with advice about the serial comma and other punctuation marks that is appallingly written and includes an egregious punctuation error: “Its used … ”

Use an ‘Oxford comma’ or it can be referred to as the ‘serial comma,‘ to clarify list items that are more than one. [sic]

The Queensland Curriculum Authority disappointingly advises that “No comma is needed before the ‘and’ that precedes the final item in the list”.

Readers’ comprehension of our writing is paramount. The serial comma aids clarity and it should be taught in all Australian schools.

The Maine case was not only marred by missing commas, but generally shoddy language use. The law had been revised since it was first drafted but it had not been clarified. Where were the grammarians when this law was being drafted?

Price of Punctuations: The Ten-Million Dollar Comma – Enago Academy

Punctuations are a unique aspect of writing and should not be misused under any circumstances. When you think that punctuations don’t matter, remember the Oakhurst Dairy and the missing comma that led to a class-action lawsuit and a ten-million-dollar settlement.

The Oakhurst Dairy Case

The legal case came about due to the use of the serial comma, also known as the Oxford comma. A well-known example of its use is “red, white, and blue”—the comma after white separates white and blue, thereby creating a list of three distinct items.

In March 2017, milk truck drivers for Oakhurst Dairy in Portland, Maine, won the appeal of a suit they had filed. They claimed that they were owed years of overtime pay, and to prove what constituted overtime, they cited the following wording:

“The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods.”

The spotlight was on the phrase “packing for shipment or distribution of.” If the serial comma had been inserted after the word “shipment,” then “packing for shipment” would be distinguished from “distribution.” However, without the comma, “packing” and “distribution” were lumped together as a single work activity.

The truck drivers asserted that they were not involved in packing, only distribution, and therefore the exemption from overtime did not apply. They claimed that they were owed overtime pay for the previous four years. The judge for the case, David J.

Barron, saw the ambiguity in the wording and ruled that the Oakhurst Dairy had to relinquish ten million dollars to the drivers.

The Purpose of Punctuation

Academic writers might wonder, “What is the essential purpose of punctuation?” Section 6.1 of The Chicago Manual of Style offers this: “To promote ease of reading by clarifying relationships within and between sentences.”

Communication between people, whether written or spoken, can be difficult enough, especially when it crosses geographies, industries, ages, or cultures. Making careful decisions about punctuation helps in clarifying thoughts and ideas.

As an example of this issue, consider the sentence “We loved the cream sauce over rice, asparagus and macaroons with caramel.

” Without the serial comma after “asparagus,” the reader is led to believe that all the foods listed—rice, asparagus, and macaroons with caramel—were covered with cream sauce.

However, with the comma present, it is clear that rice, asparagus, and macaroons are separate items and that “cream sauce” applies only to “rice.”

Grammar vs. Punctuation

Editorial enthusiasts often complain that the word grammar is sometimes used to refer to all aspects of written communication—that is, spelling, grammar, and punctuation combined as one package.

In the title of an article on the Oakhurst Dairy, we read, “Grammarians rejoice in the $10 million comma,” and a writer for The New Yorker calls the case “a feast of subtle delights for anyone with a taste for grammar.” It is important to remember how grammar and punctuation are discrete aspects of writing.

The Chicago Manual of Style devotes an entire chapter of 100 pages to grammar and follows it with a 50-page chapter on punctuation. Spelling and grammar create the foundation of the sentence; punctuation provides the final, but vital, touches of clarity.

Returning to the infamous Oakhurst Dairy case, The Maine Legislative Drafting Manual states that commas are probably the most misused and misunderstood punctuation marks in legal drafting and, perhaps, the English language. Use them thoughtfully and sparingly.

” Punctuations serve a critical purpose in communications. Attorneys, educators, and historians will speak of the Oakhurst Dairy and the “ten-million-dollar comma” for years to come.

At the same time, writers will take care to ensure that their work does not include the punctuation faux pas that goes viral on the Internet or ignites an expensive and notorious lawsuit.

References

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