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Writing With Clarity: A Legal Argument for the Serial Comma

By Debra Bruno

September 20, 2017

The legal argument for the serial comma

There is no lesson quite so powerful as $10 million in overtime pay because a state left off a comma.

In a decision earlier this year that brought joy to legal grammarians, English teachers, and writing know-it-alls, the U.S. Court of Appeals for the First Circuit ruled that a phrase in Maine law about who did and didn’t qualify for overtime was unclear enough that truck drivers could collect overtime from the dairy company where they worked.

The phrase was based on guidelines in the Maine Legislative Drafting Manual, which recommended that legislative contracts and laws leave off the serial, or Oxford, comma. In other words, some writing stylebooks claim that it’s fine to omit the comma before the word “and” in a series because a reader would understand that the items are equal parts of that series. (For instance, either “we have cookies, cake, and ice cream” or “we have cookies, cake and ice cream.”)

The 2014 class action lawsuit seeking overtime pay was based on a phrase covering categories of work not subject to overtime rules—“the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution” of various items. Lawyers for the truck drivers argued that their work, the distribution of goods, was subject to overtime pay from Oakhurst Dairy, but the packing for shipment or the packing for distribution was not.

“One of my reactions when I was reading the case was: No writer thinks that what he or she is writing is ambiguous,” says Don Burley, senior counsel at Finnegan, Henderson, Farabow, Garrett & Dunner, LLP. “Writers think that what they’ve written is clear. No one thought, ‘Oh, I’ll just leave the comma out—that’ll be fun,’” he adds with a laugh.

Until last January, Burley was a partner at the patent and intellectual property firm. Now he backs up the firm’s pro bono efforts and works with associates, many of them coming to the firm with engineering backgrounds, on improving their writing.

In the Maine case, Burley says, he suspects that the authors of the statute were so focused on what categories of work they wanted to exempt that they “just didn’t think they needed” the serial comma. “The author always has to think, ‘How can this be misread?’” In addition, Burley notes, the dairy company made some hyper-technical arguments, such as trying to argue that the words “shipment” and “distribution” are synonyms. “That leads to the obvious response: Then why didn’t the statute use the same word?” he asks.

As he works with the firm’s associates, Burley tells them, “Good writing isn’t just writing something that reads well, but writing that thinks about the response and anticipates what’s going to be said by the other side.”

Burley is one of several in the legal profession who are eager to talk about punctuation, parts of speech, and overall clarity in legal language.

Craig Hoffman, associate dean for strategic initiatives and professor of U.S. legal discourse at Georgetown University Law Center, helps international law students become familiar with legal language in the U.S.

Interestingly, though, “the foreign students actually know more about English grammar than the Americans,” Hoffman says. “They love talking about stuff like that. Our U.S. students, not so much.” The advent of social media and texting has meant a growth in apathy about the details of grammar, he says.

“If you write, ‘I am leaving my estate to John, Brad, and Sarah,’ that’s different from ‘I am leaving my estate to John, Brad and Sarah,’” Hoffman says, because the second phrase might mean that Brad and Sarah get half of the estate and John gets the other half. “These things make a difference,” he says, “but more recently, students have no idea what I am talking about.”

Hoffman, who received a Ph.D. in linguistics before he went to law school, says overall, “The problem in bad writing, legal or otherwise, has to do with assuming your audience knows something it doesn’t.” And what any lawyer is trying to avoid, he adds, is going to court over different interpretations of meaning.

California Appeals Court Associate Justice William Bedsworth, who writes a syndicated column on language for The Recorder, a legal newspaper in California, devoted an entire column to “The Almighty Comma.” He’s a big fan of the serial comma.

“My granddaughter —apparently it’s a bad gene—just thinks that the difference between ‘Let’s eat grandma’ and ‘Let’s eat, grandma’ is the most wonderful joke in the world,” he says. But it’s not a “tough call” to land on the side of the comma. “It’s not like saying you’re going to spend a lot of money to do this but it’s worth the price. There is no price!”

Bedsworth says that the Maine case reminds him of another one he ruled on in California. A law made it illegal for a minor to escape from a detention facility, or while being transported to and from a detention facility. But in that case, the minors in juvenile detention were on a field trip to a museum when one young man went through a window and disappeared. He was convicted of escaping.

The appeals court ruled that he hadn’t broken the law. “We looked and said, ‘Doggone it,’” says Bedsworth. “He wasn’t being transported.” The court “struggled,” Bedsworth says, but had to rely on the language of the statute, and reversed his conviction.

“We look at the words – what was it they were trying to accomplish here?” he says. In the end, the California legislature changed the law to cover instances like that.

Bedsworth also teaches at the University of California, Irvine School of Law. In one lecture, he displays a slide with just one word: clarity. “If you have clarity and you’re right, you will win,” he tells law students. “If you have clarity and you’re wrong, you shouldn’t win. Anything you can do to make it clearer is a good thing.”

Debra Bruno is a freelance journalist who writes for the Wall Street Journal, the Washington Post, and Washingtonian Magazine. She lived in China for three years and has worked at Legal Times, Roll Call, and other publications.