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The Art of Drafting

October 5, 2017 by pgd1

One of the aspects of the practice of family law that gets little attention is the drafting of legal documents. We know that most family law disputes are resolved by agreement.

Some of the most important work that lawyers do comes in the form of drafting.  It often happens that parties reach an agreement in principal. However, during the drafting phase, details emerge that were never discussed.  As the saying goes, the devil is in the details.

Given the importance of words, it is not unusual for lawyers to disagree about the wording of an agreement.  A recent case out of the state of Maine turned on how the court would interpret a statute.  The interpretation turned on the placement of a comma.  The case is illustrative of the type of problems that can arise from writings drafted lawyers—whether it is a statute or an agreement.

It all came down to a missing comma, and not just any one.  And it’s reignited a longstanding debate over whether the punctuation is necessary.  A federal appeals court decided to keep alive a lawsuit by dairy drivers seeking more than $10 million in an overtime pay dispute.

It concerned Maine’s overtime law, which doesn’t apply to the “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of” foods.

There’s no Oxford, or serial, comma in the “packing for shipment or distribution” part. The drivers said the words referred to the single activity of packing, which the drivers don’t do. The defendant, Oakhurst Dairy, said the words referenced two different activities and drivers fall within the exemption.

Circuit Judge David Barron wrote: “For want of a comma, we have this case.” The court sided with the drivers.

The Associated Press Stylebook advises against the use of the Oxford comma, except when it’s needed for clarity.  In this case, someone following AP’s guidance would include a comma if the packing and distribution were intended to be separate activities.

Other authorities are more enthusiastic about the serial comma — notably Oxford University Press, from which the mark draws its popular name.  The Oxford style guide, published as New Hart’s Rules, states that it is Oxford style “to retain or impose this last comma consistently.”1

Thus, the placement of a comma made a ten million dollar difference in result.  This case emphasizes the importance of the correct use of language and grammar.

by Patrick Gaffney

by Patrick Gaffney


1 Portions of this blog were taken from Whittle, Patrick.  Associated Press.  March 17, 2017.  Retrieved from:  https://www.usnews.com/news/best-states/maine/articles/2017-03-17/court-ruling-hinging-on-comma-ignites-grammarian-style-war

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