Don’t write wrong: $10 million lawsuit decided over missing serial 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” and 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 v. Heller.
  • When Alabama rewrote 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

Paralegals and legal secretaries that are worth their weight in gold have the ability to edit correspondence and legal documents before they leave their offices and rid them of improper grammar, citation errors, and other mistakes that could potentially get them “thrown out of court.” The most sought after paralegals excel at conveying legal concepts through the use of plain language rather than legalese. After all, what law firm doesn’t need a professional who can write plain, understandable language utilizing proper grammar?

As George Orwell once said, language is “an instrument which we shape for our own purposes,” meaning that we are ultimately responsible for everything we write and say. This appears to be especially true in a court of law.

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4 Comments

  1. Kimberly Reply

    I had a laugh at the spelling error on this post about proper grammar.

    “Some people put a common there, others leave it out” – “common” should be “comma”

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