ABA Journal



Did the 2nd Circuit wrongly interpret a comma? Expert takes aim at ‘arbitrary principle’

Oct 9, 2013, 07:23 am CDT


So, because adding words would change the meaning, the court was wrong to apply the grammar rule which has been widely applied by courts? That would be good drafting advice, but not great contract analysis.

By P. Bryson on 2013 10 09, 8:36 am CDT

So Mr. Adams is a Legal Rebel without a clause?

By ABA Journal As A Second Language on 2013 10 09, 9:34 am CDT

I have at least two problems with Mr. Adams’ polemic. First, nowhere does Mr. Adams state that the Second Circuit incorrectly interpreted the language at issue. The source of his vitriol is not the court’s holding.

Second, Mr. Adams makes an even more egregious mistake than the one he claims the court made: he fails to give appropriate weight to the actual text of the court’s opinion. If he had, he would have noticed a few things that would have tempered his diatribe. For example, after admitting that it is one possible method (implying that it is not the only one), the court states that, “When there is no comma, . . . the subsequent modifier is ORDINARILY understood to apply only to its last antecedent. When a comma is included, . . . the modifier is GENERALLY understood to apply to the entire series.” AIG, at 782 (emphasis added). Clearly, the court is stating that, like all other canons of construction, it is merely a presumption that can be be overcome by the actual text, should it unambiguously suggest a different meaning, as the examples Mr. Adams provides demonstrate. Mr. Adams unfairly attacks the court as if they had announced an iron-clad rule. In addition, this court did not “propose” this principle of construction as Mr. Adams claims, a fact that would have been obvious to anyone who read past the court’s citation to Fowler’s 2nd Edition, and reached the citation to an earlier 2nd Circuit decision that cites to decisions from the 3rd and 11th Circuits (which, in turn, cite to still older sources).

Mr. Adams believes that “the general rule . . . that no expert testimony is admissible for purposes of determining whether contract language is ambiguous . . . makes no sense” and that “judges are [not] equipped to analyze ambiguity. . . .” I disagree on both points. Allowing such testimony would simply fill the judiciary’s limited time with endless debates over semantics as attorneys try to inject the hopes of ambiguity into losing positions, and provide more opportunities for abuse. And if we can’t trust that judges have the capacity to handle ambiguity, who can we trust? The shortcomings in Mr. Adams’ paper would seem to discount him.

By Dan Baker on 2013 10 09, 11:04 am CDT

Adams ignores the first rule of writing.  It matters not one whit what the writer means to say; what is important is the meaning understood by the recipient .

Proofreading matters, even in this cut and paste and IM and chat room world.  It matters a lot.  I am astounded by attorneys who actually brag to me that they draft pleadings and letters with their thumbs on their crackberries or zip them out on their tablets in record time.  That shows a lack of respect for the needs of the client.

Those familiar with my posts know that I do not overly agonize over spell checking and grammar nuances on this board.  When I draft a complaint, however,  I make damned sure I have someone else read it with a fresh eye for basic readability before I file it.  By “someone else” I do not mean another attorney or (lord help us) a so-called legal scholar;  I show it to a real reader instead, typically a staffer without the handicap of a postgraduate education.  Attorneys can argue endlessly about how many commas can dance on the head of a pin.  It is best to get the perspective of someone who has not been trained to mistake argument for reasoning.  If the essential information in your complaint is not readable and understandable to an average eighth grader,  you are not drafting it correctly.

By Been There on 2013 10 09, 1:11 pm CDT

Well, the serial comma was once right up there in the proofreader’s list.  But I think that the newspapers have dropped it.  More’s the pity, as it can help immensely when wondering about what modifies what.  The Court certainly uses an example of “proper” grammar. 

In Colorado, the legislature took umbrage at an opinion of the state supreme court in applying a statute, and inserted specific language in the statute on statutory construction concerning a very similar issue.

“2-4-214. Use of relative and qualifying words and phrases

The general assembly hereby finds and declares that the rule of statutory construction expressed in the Colorado supreme court decision entitled People v. McPherson, 200 Colo. 429, 619 P.2d 38 (1980), which holds that “. . . relative and qualifying words and phrases, where no contrary intention appears, are construed to refer solely to the last antecedent with which they are closely connected . . .” has not been adopted by the general assembly and does not create any presumption of statutory intent.”

As do others, I don’t think Mr. Adams has a good point here.

By Walt Fricke on 2013 10 09, 10:06 pm CDT

The Court got it right.  Serial commas add clarity and should be used.  Indeed, as the saying goes, “commas save lives: Let’s eat, Grandma.  Let’s eat Grandma.”  Lawyers should The Court got it right.  Serial commas add clarity and should be used.  Indeed, as explained cogently on a t-shirt, “commas save lives: Let’s eat, Grandma.  Let’s eat Grandma.”  Lawyers should resist the dumbing-down of the English language.  Carefully crafted sentences are among the most valuable tools of our trade.

By ML Hagen on 2013 10 11, 6:25 am CDT

And, of course, I second the comment about proofreading.  Although I am quite certain that my previous comment read differently when I hit “Submit,” my iPad denies having a mind of its own.  In any event, I accept full responsibility for the error, and respectfully ask that you substitute the following for my previous comment:

The Court got it right.  Serial commas add clarity and should be used.  Indeed, as explained cogently on a t-shirt, “Commas save lives:  Let’s eat, Grandma.  Let’s eat Grandma.”  Carefully crafted sentences are among the most valuable tools of our trade.  We should resist the dumbing-down of the English language.  The importance of punctuation is shown in a delightful little book, “Eats, shoots, and leaves,” by Lynne Truss, which, in my view, should be required reading for all law students.

By MLHagen on 2013 10 11, 6:48 am CDT

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