By Sara Braniecki
University of Baltimore School of Law
With the ubiquity of text messages and social media, the novice legal writer may be wondering if punctuation even matters. For the senior attorney, she asks, “Does punctuation still matter?” Rest assured legal practitioners, it does. Attorneys write because they need to convey a specific message, but the message, no matter how beautiful the words, loses its luster with poor punctuation. Consider the comma and the case of O’Connor v. Oakhurst Dairy, 851 F.3d 69 (1st Cir. 2017. In O’Connor, delivery drivers were disgruntled when their employer denied them overtime wages. The company justified its refusal by pointing to a Maine statute that made employees ineligible to earn overtime wages for “[t]he 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 court was tasked with interpreting the statute, which was ambiguous due to the omission of a comma after “shipment.” Is “packing for shipment” a different item on the list than “distribution”? Or is it one item: “packing for shipment or distribution”? The delivery drivers participated in distribution of the product; however, they did not package the products for shipment or distribution. This little comma certainly led to costly litigation.
Due to the lack of a comma after “shipment,” the court decided that “packaging for shipment or distribution” was a single activity. Truck drivers do not package the products at all; therefore, the drivers were not participating in an activity for which they were unable to earn overtime. The delivery drivers’ attorneys helped recover millions of dollars in overtime wages based on the omission of a serial comma. I think we can all agree that the delivery drivers were happy that their attorney knew the impact of the comma, or lack thereof.
Words not only convey a particular meaning; punctuation also plays a vital role in crafting the reader’s understanding of the text. Take, for example, the methods of statutory interpretation used in Oakhurst Dairy. The court’s analysis was heavily focused on ascertaining what the words meant but the punctuation significantly altered that meaning. Misplaced or forgotten commas can lead to ambiguity potentially resulting in extensive, costly litigation.
So, here are just a few ways this little punctuation mark can have a big impact on your legal writing:
- Use the serial comma, also known as the Oxford comma. This is the comma before the final conjunction (often “and” or “or”) in a list of more than two items.[1] The Oxford comma is excluded in many non-legal writing styles and professions, leading some individuals to hesitate to use it in their legal writing if they have shifted to a legal career from another profession. In legal writing, the Oxford comma helps provide clarity when listing elemental rules.
Example:
First year law students often study criminal law, civil procedure, torts, contracts, and property.
The Oxford comma is the comma nestled after “contracts” and helps clarify that contracts and property are separate subjects, belonging to separate categories in the list.
- Use commas to set off non-restrictive modifiers but not restrictive modifiers.[2] If the modifier adds extra information about a person, thing, or idea, and it is clear what the word or clause modifies, it is a non-restrictive modifier.[3] Generally, if you remove a non-restrictive modifier from the sentence, it does not change the essential meaning of the sentence.[4] These should be set off by commas.[5] Pro Tip: If you’re deciding between using “that” or “which,” use the word “which” with non-restrictive modifiers.[6]
Examples:
Chief Judge Barbera, who is now retired, wrote many eloquent opinions.
(Note: The phrase “who is now retired” is not necessary to identify the noun it modifies; it simply adds information.)
The casebook, which is red, will contain all the cases you should read.
(Note: The phrase “which is red” adds information about the casebook, but the sentence would have the same essential meaning without the modifier.)
On the other hand, if the modifier is being used to identify which of several persons, things, or ideas the writer is referring to, it is a restrictive modifier.[7] These modifiers are essential to the meaning of the sentence, thus you should not use commas with these modifiers. Pro Tip: If you’re deciding between using “that” or “which” to introduce a restrictive modifier, use the word “that.”[8]
Example:
The defendant who took the stand suggested that his co-defendant was at fault.
(Note: The modifier—“who took the stand”—allows the reader to identify which defendant the writer is referring to, making it a restrictive modifier.)
- Use a comma before a conjunction (and, or, but, etc.) in a compound sentence but not in a compound predicate.[9] A compound sentence has two independent clauses linked together by a conjunction, and a comma should be place before the conjunction.
Example:
The defendants moved for the court to dismiss the case, and the plaintiffs opposed the motion.
(Note: The conjunction—“and”—has a comma before it in this compound sentence.)
In contrast, a sentence with one subject and two verbs has a compound predicate, and you should not place a comma before the conjunction.
Example:
The appellate court disagreed with the trial court and remanded for a new trial.
(Note: The conjunction—“and”—does not have a comma before it.)
Proper use of commas can be a bit tricky to master, but it is well worth the effort. After all, understanding the impact of these little punctuation marks on the meaning of the text could lead to better results for you and your clients. The comma is small but mighty.
[1] Texas Law Review, Manual on Usage and Style 9 (15th ed. 2020).
[2] Id. at 12.
[3] Id.
[4] Id.
[5] Id.
[6] Id. at 76.
[7] Id. at 12.
[8] Id. at 76.
[9] Id. at 10.