Comma law

For most people, a stray comma isn’t the end of the world. But in some cases, the exact placement of a punctuation mark can cost huge sums of money.

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  • How much can a misplaced comma cost you?
  • If you’re texting a loved one or dashing off an email to a colleague, the cost of misplacing a piece of punctuation will be – at worst – a red face and a minor mix-up.
  • But for some, contentious commas can be a path to the poor house.
  • A dairy company in the US city of Portland, Maine settled a court case for $5m earlier this year because of a missing comma.
  • Three lorry drivers for Oakhurst Dairy claimed that they were owed years of unpaid overtime wages, all because of the way commas were used in legislation governing overtime payments.
  • The state’s laws declared that overtime wasn’t due for workers involved in “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 drivers managed to successfully argue that because there was no comma after “shipment” and before “or distribution”, they were owed overtime pay. If a comma had been there, the law would have explicitly ruled out those who distribute perishable foods.

Comma Law

Workers load milk onto trucks at the Oakhurst dairy plant in 2013 (Credit: Getty Images)

Because there was confusion, the US Court of Appeals ruled in their favour, benefiting around 120 of the firm’s drivers. David Webbert, the lawyer who helped bring the case against the company, told reporters at the time that the inclusion of a comma in the clause “would have sunk our ship”. (He didn’t respond to interview requests from the BBC.)

The slip-up shows that the slightest misstep in punctuating a clause in a contract can have massive unintended consequences.

“Punctuation matters,” says Ken Adams, author of A Manual of Style for Contract Drafting. But not all punctuation is made equal: contractual minefields are not seeded with semicolons or em-dashes (here’s one: – ) waiting to explode when tripped over.

“It boils down to commas,” says Adams. “They matter, and exactly how depends on the context.”

Delivering definition

Commas in contracts link separate clauses in a non-definitive way, leaving their reading open to interpretation.

While a full stop is literally that – a full and complete stop to one thought or sentence, and the signal of the start of another – commas occupy a linguistic middle ground, and one that’s often muddled.

“Commas are a proxy for confusion as to what part of a sentence relates to what,” Adams explains.

The English language is fluid, evolving and highly subjective. Arguments have been fought over the value of so-called Oxford commas (an optional comma before the word “and” or “or” at the end of a list).

There might be good arguments on either side of the debate, but this doesn’t work for the law because there needs to be a definitive answer: yes or no. In high-stakes legal agreements, how commas are deployed is crucial to their meaning.

And in the case of Oakhurst Dairy against its delivery drivers, the Oxford comma is judged to have favoured the latter’s meaning.

But just because you mean to say something, it doesn’t mean that a court will agree with you, says Jeff Nobles, a Texas-based appellate lawyer who was involved in an insurance case that hinged, in part, on the punctuation of a contract.

According to Nobles, most US courts will say it doesn’t really matter what the parties subjectively intended; it’s the objective intent in the written terms of their contract. “Punctuation sometimes will change the meaning of a sentence,” he says.

Nobles represented an insurance company in a Texas Supreme Court case concerning insurance coverage for a worker who died on the job.

Nobles argued successfully that punctuation mattered for a contractual indemnity provision, when the company tried to trigger coverage under its umbrella insurance policy after a subcontracted employee died on the job. It set a precedent in the state’s legal system, he believes.

  1. He says US courts have become increasingly textual – “they’ve looked more and more at the words on the paper rather than the testimony of the people who used those words on the paper.”
  2. Yet arguments over commas have been raging for more than a century.
  3. ‘An expensive comma’

In 1872, an American tariff law including an unwanted comma cost taxpayers nearly $2m (the equivalent of $40m today). The United States Tariff Act, as originally drafted in 1870, allowed “fruit plants, tropical and semi-tropical for the purpose of propagation or cultivation” to be exempt from import tariffs.

For an unknown reason, when revised two years later, a stray comma sneaked in between “fruit” and “plants”. Suddenly all tropical and semi-tropical fruits could be imported without any charge.

Comma Law

An 1872 tiff over tariffs and tropical fruit cost taxpayers $40m – all caused by a comma (Credit: Getty Images)

Members of the US Congress debated the issue and the problem was fixed – but not before the New York Times bemoaned the use of “An Expensive Comma”. It wouldn’t be the last such error.

“Contract language is limited and stylised,” says Adams. He compares it to software code: do it right and everything works smoothly. But make a typo and the whole thing falls apart.

The case of the $13 million comma and why grammarians are rejoicing – ABC News

  • Portland-based company Oakhurst Dairy will potentially owe $US10 million ($13 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. 1.Agricultural produce
    2. 2.Meat and fish products; and
    3. 3.Perishable foods
  1. The missing comma, in this case, would have separated “packing for shipment” and “distribution” into distinct activities, both exempt from overtime.
  2. Without the comma, the drivers argued, the law referred only to the act of packing, for the purpose of either shipping or distributing.
  3. 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”.

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 is 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:
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“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.

  1. There are two lists in this example that omit the serial comma, although only the second really demands it to eliminate ambiguity.
  2. (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.)
  3. Maine legislature drafting guidelines actually recommend against using the serial comma, advising that any confusing sentence be entirely rewritten.

Comma Law

What if you were told there are lots of so-called grammar rules that we've probably been getting wrong in our English classrooms for years?

Read more

  • But the appellate judge was obviously a fan, saying: “We would be remiss not to note the clarifying virtues of serial commas that other jurisdictions recognise”.
  • He elaborated by stating that both chambers of the federal Congress warned against omitting the serial comma “to prevent any misreading that the last item is part of the preceding one”, and said that only seven of the American states (including Maine) “either did not require or expressly prohibited 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

  1. 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.

  2. 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.

  3. This doesn't even mention the term “serial comma”, stating: “sometimes a comma is placed between the last two items to ensure clarity”.
  4. 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: “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.”

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]”

  1. The Queensland Curriculum Authority disappointingly advises: “No comma is needed before the 'and' that precedes the final item in the list”.
  2. Readers' comprehension of our writing is paramount.
  3. The serial comma aids clarity and it should be taught in all Australian schools.
  4. 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?

Commas and the Law

Comma Law

Judges have the difficult task of discerning the meaning of a law when the language is unclear. They usually follow a set of rules to help them parse a statute’s meaning, including the cardinal rule that a statute should be interpreted to mean what it says when its language is clear. But whether language is clear, or is capable of more than one interpretation, often sparks disagreement.

Rules of grammar also inform a judge’s interpretation of a statute. And occasionally, as in a recent case that came before the Court of Appeals for the First Circuit, rules of punctuation play a role in the court’s analysis. That case involved something known as an Oxford comma.

Oxford Commas

The Oxford comma (also known as a serial comma) is the comma that writers may choose to use, or not to use, after the next-to-last entry in a list of three or more items, before the conjunction.

In the sentence “I have a dog, a cat, and a turtle,” the second comma is an Oxford comma. It would be just as correct to write “I have a dog, a cat and a turtle” because whether to insert a comma before “and” is a matter of style.

The rules of punctuation do not require or forbid the use of an Oxford comma.

The Oxford comma got its name because the editors at Oxford University Press adopted its use as a matter of style. The AP Stylebook, commonly followed by journalists, omits the Oxford comma. The Chicago Manual of Style, on the other hand, recommends it.

Comma Law

Comma Law

The writer who neglects punctuation, or mispunctuates, is liable to be misunderstood for the want of merely a comma .  .  .      – Edgar Allan Poe

Introduction

“Let’s eat, Grandma” or “Let’s eat Grandma.”  As the saying goes, “commas save lives.”

This adage humorously demonstrates the significance of proper punctuation in determining meaning, and the potential cost for not heeding it.

 [1] Precision in punctuation has lost much ground in the last 30 years since the emergence of short, frequent, informal emails, texts and tweets replaced letters and reports as the preferred form of casual written communication between people and in companies.

  Meaning may be confused by punctuation in ordinary written communication, but the consequences are usually more serious in formal written communications such as contracts and other legal documents.  The interpretations are adversarial and the stakes can be very high.

This article deals with the multi-million dollar comma involving Rogers Communications.

The Rogers Case

In 2002 Rogers Communications entered into a support structure agreement (SSA) with Bell Aliant, which granted Rogers access to transmission poles at the rate of $9.60 each per year.

 Rogers’ access to these poles permitted connections of its telephone and cable services to homes throughout Canada.  Bell Aliant was an agent of NB Power and did not own the poles itself.

 The five-year agreement was set to expire in May 2007.

This & That: The Oxford comma, consistency, and law

Oh, the Oxford Comma, so seductive in its controversy that few would fain forfeit the opportunity to fight for or against its rightful place as ink on a page.

In an epoch that is daily laden with newfangled controversies, one might expect to find refuge from contention in a field of study so seemingly mundane as grammar. But, like with gun legislation or President Trump’s Twitter page, emotions run equally as high when it comes to the serial comma.

So, as I am quite aware that one of my journalistic counterparts is producing an argument for the holocaust of the serial comma, allow me, a member of a different field of language study, to defend the underappreciated punctuation mark.

Not to be redundant — since I am sure Spencer also defined what exactly this pesky comma is and does — but the Oxford, serial, or Harvard comma (all names mean the same thing) is that minuscule line of ink in between the last two items in a series. In the sentence “I went to the store and purchased grapes, cookies, and milk,” the Oxford comma would be that preceding the “and.”

Many writing cultures — specifically that of journalists — have determined its employment is unnecessary. Dig through the pages of most newspapers or magazines and you will find a distinct lack of the serial comma’s use.

I feel it necessary to concede that this is true in many cases. In the sentence above, the removal of the serial comma doesn’t create any ambiguity, and it is clear either way that I bought those three food items regardless of the comma’s employment.

Unfortunately, however, rather than simply leaving out the comma in instances where no ambiguity is created, the other side of the comma aisle seems to think that its use should be eradicated entirely.

The only arguments that I think hold water for this belief suggest that it is not always necessary and that removing it saves keystrokes — hence why journalists are so fond of forgetting it all together.

This is where I feel the need to passionately step out in defense of the comma’s rights as a punctual being. I believe the serial comma should be used in order to avoid accidental ambiguity and maintain consistency.

For example, take a more complex sentence: “The graduate thanked his parents, Jesus and Brad Pitt.” If you add in the serial comma, the graduate no longer is thanking Jesus and Brad Pitt as his givers of life, but he is thanking his parents as well as Jesus and Brad Pitt.

Many would argue the above sentence could be rearranged, and I think that is a valid argument. I am making the case, however, that we are better served to consistently use the Oxford comma to avoid any accidental ambiguity. One extra keystroke is much easier than completely rearranging a sentence.

But, don’t take my word for it. Who cares what a senior in college has to say? Instead, let us turn our attention to nearly all facets of law. The U.S. Supreme Court, both houses of congress, and many state legislatures require the use of the serial comma. They do so because it is so effective in avoiding any ambiguity or misinterpretation in legislative or contractual literature.

In the case O’Connor v. Oakhurst Dairy, a missing serial comma was the deciding factor that cost the Oakhurst Dairy company $5 million.

While I agree that there are plenty of circumstances in which the serial comma is not absolutely necessary, I think that eradicating it leaves far too much room for potential misinterpretation. I’m by no means a grammar absolutist, but, in the case of the Oxford comma, I feel an obligation to come to its defense.

Featured Image: Illustration by Austin Banzon

Avoid the Most Common Comma Crimes Committed by Counsel: Eight Commandments

From the loftiest law firms to the grandest judicial chambers, I see the same comma errors time and time again. In the name of consistency, and perhaps even sanity, consider committing to these Eight Comma Commandments.

1. Thou Shalt Include a Comma Before a Conjunction That Introduces an Independent Clause

Put a comma before a midsentence “and” or “but” if what follows could have been a sentence on its own. If what follows is just a phrase, a comma is optional but almost always unnecessary.

Comma here:

I would love to take you on as a client, but my workload makes it impossible for me to do so right now.

But no comma needed here:

I would love to take you on as a client but need to wait until I have more time.

Comma here:

The Court denied summary judgment, and it also dismissed Count Two with prejudice.

But no comma needed here:

The Court denied summary judgment and dismissed Count Two with prejudice.

2. Thou Shalt Not Insert Commas Around a Mid-Clause “Thus” or “Therefore”

So this:

She is therefore inclined to postpone the meeting indefinitely.

And this:

Underwriter’s Counsel thus rejected our proposal.

But not this:

The Court should, therefore, grant summary judgment.

3. Thou Shalt Put Commas Around a Name Only When It Is the Sole Member of the Group

So this:

My sister, Mary, is my only sibling.

And this:

My sister Mary is my favorite sister.

4. Thou Shalt Include Commas in a Series of Adjectives Only When They Modify the Noun Separately

Hint: If you can add the word “and” between the adjectives, add commas.

So this:

Under longstanding tort principles, you cannot get damages in this case unless you can first prove that the shopkeeper owed you a duty.

And this:

Although it’s fashionable to attack lawyers, many of my colleagues have proved to be loyal, sincere friends.

But not this:

This second opinion appears to comprise two, equally inadmissible components.

5. Thou Shalt Set Off Complete Dates With Commas, But Thou Shalt Not Insert a Comma Between a Month and a Year (Unless Thou Writest for The New Yorker)

So this:

You have until May 1, 2014, to get back to us with your answer.

And this:

I can tell you that February 2013 was a tough month for my firm.

But not this:

I can tell you that February, 2013 was a tough month for my firm.

6. Thou Shalt Place Commas Inside Quotation Marks, Unless Thou Art in England or a Commonwealth Country, Art a Sworn Anglophile, or for Other Reasons Prefer British English

American:

The Agreement uses the phrase “party of the first part,” but I have never really understood what that means.

British:

The Agreement uses the phrase “party of the first part”, but I have never really understood what that means.

Exception: When the comma is part of the original quoted material, in British English the comma goes inside the quotation marks:

America’s Second Amendment begins with the words, “A well-regulated Militia,” which in colonial times was considered to include the whole free adult male citizenry.

7. Thou Shalt Set Off Introductory Phrases With Commas

It’s true that in very simple sentences, you don’t need to set off introductory phrases with commas:

Last Monday I went to the doctor.

A better rule for legal writers, though, is to set off all such phrases with commas:

So this:

To the best of my knowledge, California law does not allow you to sue on that basis.

And this:

Each spring, our firm holds a meeting at an off-site location to discuss strategic plans for the next fiscal year.

But not this:

With one exception my client never misrepresented the terms of the initial agreement.

Freebie: Avoid putting a comma after a coordinating conjunction at the start of a sentence. So no comma after “But” here:

I have a lot of thoughts on how to structure this deal. But I’ll need to get back to you on the tax implications.

To remember which words are coordinating conjunctions, just think FANBOYS: for, and, nor, but, or, yet, and so.

8. Thou Shalt Include a Comma Before a Participle That Modifies an Entire Preceding Phrase or Clause and Avoid a Comma Before a Participle That Modifies Just the Preceding Noun

So this:

Last week, I went to an interesting lecture making

5 Tips for Using Proper Punctuation In Your Legal Documents

Punctuation is perhaps one of the most abused elements of writing in general – from professional and scientific writing, to creative and legal writing. Diction, word placement and sentence structure seem to rule the world of writing, while the value of precise punctuation seems to slip through the cracks.

Within a legal document, however, everything must be in its proper place. Here are five top tips for you to consider and follow to ensure you are punctuating your legal documents, memos, case files, letters and other forms of paperwork correctly.

Proper Placement and Use of Commas

The typical comma seems to either be overused or underused in most documents – including different types of legal writing. Since your focus should be on boosting the quality of your legal documents through the proper use of punctuation, it is imperative to learn the art of placing commas within your sentences.

According to Cuny School of Law, commas must separate independent clauses whenever they are joined together by coordinating conjunctions, such as and, for, but, or, yet and nor.

You should also use commas to separate three or more phrases, clauses or words within a sentence (eg:phrases, clauses or words).

It is also appropriate to use commas in the middle of sentences when the need to set off phrases, clauses and words that are not significant to the purpose of the sentence.

A general rule of thumb to use in this regard is to consider if the unessential part could actually be separated into an entirely separate sentence.

Use of commas in English language for Law – Legal English Training UK

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44(0) 20 3573 0182

Along with the glorious apostrophe, the comma is a punctuation mark that is so frequently misplaced and misused that it can be confusing for learners who study legal English to know how and where to use it.  In this blog post, we look at some of the most frequent mistakes regarding the comma.

Comma Cases

There are a fair number of legal cases in English language speaking jurisdictions where a comma was cited (mentioned) as changing the outcome of the case.  The trial of Roger Casement in 1916 for treason led to the diplomat being 'hanged by a comma' in the words of NYU law professor Gary Slapper in The Times.  

The then Sir Roger had been accused of treason, but had committed the alleged crime while in Germany.  Several versions of The Treason Act of 1351 seemed to allow for crimes of treason to only be prosecuted if they had been carried out in England.

 Casement's barrister defended his client by saying that as the crime had been committed in Germany then he could not be prosecuted.

 The presiding judges looked closely at the Act in the original Norman French and determined that the positioning of the comma meant that the law should be read in the widest possible sense, and so Clement was hanged.

  • Where legal professionals make errors
  • Take a look at this sentence which is not untypical of TOLES and legal English students  and decide in your own mind if there is anything incorrect:
  • “I looked at the case, Jones v Smith with my good colleague, Peter.  
  • The answer is that there is no need for any commas in this sentence.  The sentence should read:
  • “I looked at the case Jones v Smith with my good colleague Peter.”

This is because the case is not the only legal case in existence and because the speaker has many good colleagues.  How about this sentence?

“I looked at my most recent case, Jones v Smith with the supervising partner, Peter.”

In this sentence, the commas are needed as Jones v Smith and Peter are the only things in existence that the speaker could be referring to.

So, if something is Unique then you should use a comma.  If not, do not use it.

  1. “The case of the century, Jones v Smith is to be decided today.”
  2. “The legal case Jones v Smith will be decided by the courts today.”
  3. “Our Managing Partner, John Jones has announced his retirement.”
  4. “Our corporate lawyer Peter Watson will be leaving in the summer.”
  5. The Oxford Comma

The Oxford (or serial) comma is known as such because of our friends at Oxford University Press.  It is used before the word “and” at the end of lists if three or more things.  Its use is optional and it is therefore up to you whether you use it, but it does help to clarify matters.  Here is an  example of good use of an Oxford comma (although it is not essential in this case).

“There are three lawyers in this law firm:  Steve Cooper, John Barney, and Fred Aykroyd.”

This push notification to your right from Sky News did need an Oxford comma because as it stands, Barack Obama is about to marry Fidel Castro.  

Legal English UK runs bespoke legal language training programmes for lawyers and legal professionals.  For further information, telephone 020 3566 0145, e-mail or fill in the form on this screen.  

Sources:  The Times Law section, The New York Times

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