Passives, apostrophes, and commas
Legal writers should always aim for grammatically correct prose. Why? To me, the key reason is to establish and maintain credibility: When readers see that you know how to write correctly, they are also likely to believe that you stated the facts and law correctly and presented accurate, valid arguments, explanations, or advice.
But occasionally, grammar itself becomes an issue in a case. Here are some grammatical matters that made it into caselaw, including one that made headlines. For the first three examples below, I thank Professor Diana Simon and her excellent book, The (Not Too Serious) Grammar, Punctuation, and Style Guide to Legal Writing published by Carolina Academic Press in 2022.
Although using the passive voice is not a grammar error, using it unwisely can have bad consequences. In one case, a due-process claim written in the passive voice failed to identify who did the “assuring” in the following statement from the complaint: “she was assured that she would continue on the job as long as she performed satisfactorily.” As a result, the judge dismissed that claim.[1]
In another case, a lawyer used apostrophes inconsistently in a settlement offer before trial—sometimes Plaintiffs and sometimes Plaintiff’s. The court said, “The offer was apostrophe-challenged, creating ambiguities ….” Thus, the offer failed to satisfy the particularity requirement, and the court reversed an award of attorney’s fees.[2]
One case involved a comma splice—joining independent clauses with only a comma when a period, semicolon, or conjunction is called for. A federal district judge, attempting to apply state law, noted, “The Supreme Court of South Dakota first recognized a cause of action for insurance bad faith in [Champion]. The published version of the Champion case unfortunately … employed a comma splice in a key passage, creating a confusing standard.”[3]
And then there’s a serial-comma case that made some headlines in 2018.[4] Under Maine law, overtime-wage laws do not apply to—
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: [certain products].[5]
The question:
- Is “packing for shipment” one activity, and “distribution” a separate activity?
That would be correct if there had been a serial comma after “shipment.”
- Or is the activity, “packing for shipment or distribution”?
That would be correct if the drafter was a practitioner of the serial comma but had intentionally omitted it because “packing for shipment or distribution” was intended to be a single activity.
The specific question before the First Circuit was about truck drivers: if distribution is a separate activity, drivers are not entitled to overtime pay. But if the activity is “packing for shipment or distribution,” the drivers are entitled to overtime pay because drivers don’t pack; they distribute.
The court declined to apply Maine’s Legislative Drafting Manual, which calls for omitting the serial comma—a common approach, especially in journalism. That would have made “packing for shipment” a separate activity from “distribution,” and the drivers would not be entitled to overtime pay.
Instead, the court relied on parallelism, pointing out that the listed activities were all gerunds (-ing) except for distribution, and as a result, distribution was not a separate activity, but a part of the “packing” activity.
Treating “packing for shipment or distribution” as a single activity means that the list lacked a conjunction. Thus, the “or” in “packing for shipment or distribution” was part of that single activity and could not serve as the conjunction for the larger list.
Can you have a list without a conjunction before the last item, even if you don’t use a comma?
Yes, you can, although doing so is a rhetorical technique called “asyndeton.” Asyndeton means creating a list but omitting the coordinating conjunction: The flag is red, white, blue (omitting “and”). So although the court expressed some distaste for the idea, it implicitly accepted asyndeton as a legitimate drafting practice.[6]
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[1] Ponder v. Cnty. of Winnebago, 2021 WL 3269842, *7, *12 (N.D. Ill. Sept. 30, 2021).
[2] Bradshaw v. Boynton-JCP Assocs., 125 So. 2d 289, 289, 290 (Fla. Dist. Ct. App. 2013).
[3] Anderson v. W. Nat. Mut. Ins. Co., 857 F. Supp. 2d 896, 903 (D.S.D. 2012).
[4] An Expensive Dispute About Serial Commas, ABA Journal (May-June 2018) https://www.americanbar.org/groups/real_property_trust_estate/publications/probate-property-magazine/2018/may-june-2018/an-expensive-dispute-about-serial-commas/
[5] Me. Stat. tit. 26 § 664(3)(F).
[6] O’Connor v. Oakhurst Dairy, 851 F.3d 69, 71, 73, 76, 80-81 (1st Cir. 2017).