Who hasn't sent an email and on reading it again realises it doesn't quite make sense? These days we tend to be relaxed in our use of grammar, particularly in emails, so long as the message is clear. Generally speaking, if you send a grammatically incorrect email the cost to you will be embarrassment rather than any financial liability.
However, grammar's importance falls right at the heart of legal practice. The misuse of grammar can be a hindering factor as to how lawyers are heard or interpreted or understood. Achieving the gold standard in clarity and meaning, if such a standard exists, is often difficult due to the complex nature of grammar. Rules can often conflict with each other and can often cause more, rather than less, ambiguity.
It may be surprising to hear that even the best lawyers catch their breath when a case comes before the courts and the use of grammar is cast under the spotlight. One such case came before the American courts and concerned the use of the Oxford comma.
The Oxford comma
The Oxford comma, also called a serial or series comma, is the final comma placed in a list of three or more terms. For example, a list of three dogs may be punctuated as "Poodle, Bulldog and Cavalier" (without the serial comma) or "Poodle, Bulldog, and Cavalier" (with the serial comma).
The use of the Oxford comma is regarded by many as stylistic, meaning that some style guides will demand its use whilst others won't. British English allows constructions with or without the Oxford comma. This gives rise to a dilemma as, in certain cases, use of the Oxford comma can avoid ambiguity and in others it can introduce it.
Oakhurst Dairy
This brings us to the case of Oakhurst Dairy. Oakhurst Dairy's employees were members of a trade union who took up the complaint of their drivers over payment of overtime. Following a long legal battle, which went as far as the U.S. Court of Appeal, Oakhurst Dairy agreed to settle with their employees. The decision against Oakhurst Dairy arose as a result of an omitted comma from the drafting of a local law.
The local law in question determined whether the activities of drivers qualified for overtime pay or not. It stated that the following activities were not eligible for overtime:
"The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
- Agricultural produce;
- Meat and fish products; and
- Perishable foods."
The parties to this case proposed different interpretation of the phrase "packing for shipment or distribution". On behalf of the employees, the trade union argued that the absence of an Oxford comma after the word "shipment" meant that the words "shipment" and "distribution" were part of a single activity and, as such, does not qualify for overtime pay. In other words, drivers would be paid for overtime in circumstances where their activities did not involve packing.
However, that's not how Oakhurst Dairy saw it. They argued that the phrase was intended to mean that "packing for shipment" and "distribution" were two separate activities. In other words, overtime was not payable to drivers who were engaged in either "packing for shipment" or "distribution".
The Court found in favour of the trade union forcing Oakhurst Diary to pay over some four years of overtime pay. To accept the interpretation of Oakhurst Dairy would have required the inclusion of an Oxford comma after the word "shipment" and, as it was not there and no other evidence was submitted to suggest the parties accepted a different interpretation, the Court saw no reason to imply it. The absence of a single comma cost Oakhurst Dairy $5m plus the legal costs!
What lessons can we learn?
As much as this case displays the importance of grammar, it also shows the difficulty of applying grammar's varying complexities on a consistent and unforgiving basis.
Whilst this case highlights the importance of grammar and is why lawyers check and double check their work in order so as to ensure it is clear, precise, and unambiguous (note the use of an Oxford comma!), it is also a reminder that even multiple checks may not provide a guarantee against uncertainty and challenge.
So, enjoy the rest of the summer and when you return to work and are gunning down on your lawyer for documentation you regard as "off the shelf" or "a quick bit of dictation" remember this case. Time and patience are needed to carry out proper grammatical checks. It can be frustrating, but the price of a comma may well be worth the wait!
With thanks to Ed Clark for contribution to this update.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
