intent is key
Technology is great, but the truth is, automatic spell and grammar checks have no ability to understand your intent. Watch for:
• Places where a grammar program has applied an obtuse rule to a sentence, changing the meaning
• Instances the spell check won't catch, such as a similar but wrong word. "Not" will not be changed to "now" in a key contract clause requiring immediate action.
While I was not an English major in college, I was the managing editor of the Duke Law Journal while in law school, and one of my responsibilities was assuring that articles were in compliance with various style requirements for legal publications. Among the most rigorous was the utilization of punctuation marks. One of the great issues was always the Oxford comma.
What, you likely are asking, is the Oxford comma, aka the serial, series or Harvard comma? All these terms stand for a comma that is placed immediately before the last in a series of three or more terms, as in X, Y, and Z, where the Oxford comma falls after the Y. Such a seemingly humble punctuation mark can make the difference between winning and losing a lawsuit, depending upon how it is used.
Here's a fun example, a press subhead that read, "Among Those Interviewed Were His Two Ex-wives, Kris Kristofferson and Robert Duval." A serial comma after Kristofferson would have made it clear that the two men were not being referred to as ex-wives.
TO THE COURTS
A recent case concerning the placement of a comma in a union contract made it all the way to the U.S. Court of Appeals for the First Circuit. The labor dispute was between a Maine dairy company and its delivery drivers, and concerned a state law that outlined overtime rules. The court ruled that the lack of an Oxford Comma made the law too ambiguous. The upshot? In February, the dairy company was ordered to pay the drivers $5 million for unpaid overtime.
The lack of a comma can even change the entire meaning of a phrase. For example, "Let's jump Sam" means trouble for Sam, but not if it is written as, "Let's jump, Sam." In a similar way, punctuation could be critical to the court's interpretation of the intent of your clauses should you become embroiled in a dispute.
From the first moment you start working on a contract, you should be diligent about punctuation, spelling and phrasing. Too often we are careless in drafting, and troublesome phrases can reappear in agreements. When a comma is used as opposed to a semicolon, or a comma is omitted, it can have consequences.
Some commonly used guides to grammar such as The Elements of Style and the Chicago Manual of Style, as well as the U.S. Government Printing Office's rules, require the use of a serial comma when appropriate. Thus, in writing or in drafting, make sure your punctuation supports what you are trying to convey to avoid what could be an adverse result.
If you're not detail-oriented when it comes to writing and grammar, get that person in your office who is to read your contracts. Odds are she will save you time and maybe some money.
Jonathan T. Howe, Esq., is a senior partner of the Chicago and Washington, D.C., law firm of Howe & Hutton Ltd., specializing in meetings and hospitality law. Send your comments or legal questions to [email protected].