Legalese — Why Commas Can Cost (or Gain) You Money

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If you know me in real life, or even just on social media, you know that I have strong opinions about the Oxford Comma.  The Oxford Comma, also known as the “serial comma” is the comma you use before the final “and” in a list of three or more things.  For example, I have written about real estate, traffic offenses, contracts, and divorce.  I have strong opinions about the Oxford Comma because I think it can make things much clearer if you are sure that the last two items are not a unit.  For example, if I said, “I talked to Ted and Marie, Jason, Anna, Carol, and Alfred, you would know that I spoke to Ted and Marie together, and then Anna, Carol, and Alfred separately.  However, if I said, “I talked to Ted and Marie, Jason, Anna, Carol and Alfred” it wouldn’t be clear that Carol and Alfred weren’t a couple.  There is a grammatical movement, if you can call it such a thing, to get rid of the Oxford Comma.  The argument is that it is unnecessary, looks cumbersome, and can be more confusing*. 

So why is this in a Legalese column, you ask?  Well, because finally a U.S. District Court in Maine has put the issue to rest.  In O’Connor v. Oakhurst Dairy, Case 16-1901 in the 1st Circuit District Court of Appeals, the Oxford Comma, or rather, the lack thereof, was the deciding factor in the case. 

O’Connor was a driver for Oakhurst Dairy, and complained that he was not given the overtime pay he deserved. The relevant provision said that the following activities would not merit overtime pay for O’Connor: “The 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.”

Notice how there is no comma between the word “shipment” and the word “or.”  The Court of Appeals said that because there was no comma, then it meant, grammatically, that the words “shipment” and “distribution” were a pair and therefore both what the “packing” was for.  O’Connor, being a driver, “distributed” but did not “pack” agricultural produce, etc.  So, since he didn’t do both of those things, the provision did not apply to him.  If there had been a comma, then it would be clear that you could either pack or distribute those items.  But there wasn’t, so O’Connor won.

This is one of the many reasons why lawyers can be so aggravating when it comes to not talking to you on the phone to answer your question.  I am hesitant to answer any question that involves what something says (or does not say) unless I am holding it in my hot little hands, so I can examine every letter and every punctuation mark.  I don’t want to be on record as saying something means one thing or another unless I have seen it for myself and weighed it against what I understand the meaning to be.  More than once – more than a hundred times – I’ve been told that something says a particular thing, and then I read it myself and I think it says the opposite.   

Of course, this has a broader reach than just the law. Always look at source documents yourself when you can, and don’t believe anyone’s interpretation if you want to be sure. And pay attention in English class.  Why do you have to know these things, you might ask? How can a comma affect my life, you want to know?  Well, it meant a lot of money for Kevin O’Connor. 

*See what I did there, using an Oxford Comma in a list about why you don’t need the Oxford Comma?  #NerdHumor

Nothing in this article should be construed as legal advice. It is being offered for informational purposes only. No lawyer can advise you about your situation without hearing the particular details of your case.

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