Reader Steven Sholk forwarded to me an email he had received from Scribes, the American Society of Legal Writers, with the subject line “Grammar Tip No. 79 — Punctuation As A Basis for Interpretation.”
It dealt with a contract provision at issue in Plymouth Mutual Life Insurance Co. v. Illinois Mid-Continent Life Insurance Co., 378 F.2d 389, 390 (3d Cir. 1967) (PDF here). Here’s the provision in question:
No later than one (1) week from the date of the signing of this Agreement, Plymouth and National, at their mutual expense, shared equally, shall send an impartial professional insurance adjuster (Irving Javer, of the Norman Reitman & Co., Rockefeller Plaza, New York City, New York, or if he is not available another impartial professional insurance adjuster mutually satisfactory to Plymouth and National) to Boston to inspect and study all of the books … in the possession, custody or control of Progressive Insurance Agency, Inc. … .
The issue was whether the report that Javer produced was acceptable, even though when he produced it he was no longer employed by Norman Reitman & Co. In other words, was the reference to Javer’s employer “merely words of description, identifying Javer,” or “a limitation on his acceptability as a neutral adjuster”?
In deciding that the reference served to identify Javer, one reason the court offered related to punctuation: “Here the words ‘of Norman Reitman & Co.’ are set off by commas, inappropriate punctuation if the words were intended to be a limitation rather than description.”
I suggest, almost fifty years on, that the commas are irrelevant. There’s no basis for suggesting that omitting the comma after “Javer” would have affected interpretation. So that part of the court’s opinion doesn’t make sense.
But of more general interest is the context offered in the Scribes email:
Punctuation is often used as a basis for interpreting a contract, settlement agreement, or other document. This fact alone justifies the expenditure of client funds in proofreading and double checking the contents of documents.
Even the lowly comma can make the difference in a case, when used consistently and in conformity with commonly applied rules of grammar. Recognized grammar treatises might be offered to support the arguments.
I suggest that this is exactly the wrong way to approach use of commas in contracts. You can’t expect those who draft contracts to understand the implications of commas. You can’t expect anyone interpreting a contract to understand the implications of commas. And you sure can’t expect courts to understand the implications of commas.
This case offers an example of that, and it’s hardly an outlier. In searching on EDGAR for court opinions involving offsetting commas, the first opinion I saw was Encon Utah, LLC v. Fluor Ames Kraemer, LLC, 2009 UT 7, ¶ 36, 210 P.3d 263, 270. That case cited another case, Goetz v. Am. Reliable Ins. Co., 844 P.2d 366, 370 (Utah Ct. App. 1992). In both cases, the court invoked offsetting commas in holding that the contract provision at issue was unambiguous. I think that in both cases the court was mistaken.
So instead of hoping that commas allow your intended meaning to prevail, express that meaning in a way that precludes confusion. In the provision at issue in Plymouth Mutual, that could have been achieved by adding currently after Javer’s name, by moving Javer’s affiliation and address to a notices provision, or some other way.
Why does Scribes instead suggest that you rely on commas and prepare yourself for any arguments? Perhaps because the person who prepared this email is a litigator. As I’ve demonstrated sporadically, litigators are equipped to fight over confusing contract language, but their advice on how to approach contract drafting is often unreliable.
8 thoughts on “Don’t Rely on Commas”
1/ The court quoted the agreement correctly in one place to refer to ‘Irving Javer, of *the* Norman Reitman & Co’ and incorrectly in a later place to ‘of [no *the*] Norman Reitman & Co.’ It makes the court look bad not to get a six-word quotation right twice in a row in a short opinion. Maybe Judge Hastie was in a hurry.
2/ That quibble aside (and I looked nervously at my own glass house before I threw that rock), the decision as a whole seems largely to agree with your view. I get the sense that the court was saying, more or less, ‘First, the provision about alternative adjusters reads as if Javer’s affiliation with Reitman isn’t a limitation. Second, nothing in the agreement otherwise suggests a limitation. Last and least, even the *punctuation* fails to suggest a limitation, since parenthetical information bracketed by commas is typically descriptive and not limiting. Even absent the commas, the limitation argument would have been as weak as the puny rillets of the hill’.
3/ After a case like this, when you set yourself the task of figuring out how different drafting could have prevented the dispute, isn’t that really two tasks: writing one version that would have made the winning side win without suit and without the issue even arising, and writing another version that would have made the losing side win without suit and without the issue even arising? So, ‘Javer, but only if employed by Reitman at the time of selection’?
Situations like this always remind me that back in the day you could always tell a contract written by a British lawyer: there was no punctuation of any kind other than periods. Just for this reason.
But eliminating commas where you’d expect them in standard English doesn’t help anyone.
Sometimes there were no periods either. Just a double space then a capital letter. Ridiculous but true. In about 1988 I was sent to deepest Wales to take a witness statement, and the partner had arranged with a local firm to type it up. They were very helpful, but their typing conventions were rather …quaint.
So does Welsh have orthographic conventions that come straight from Latin? And just to set the record straight, I agree with Ken and wasn’t suggesting that the British way was preferable; and in any event the Brits abolished hanging, so the consequences of a wayward comma aren’t nearly as severe any more.
I agree with everything you explicitly said, but there’s a hard implication. The hardest thing about this case is the idea that the drafters every even thought about the scenario where the guy was no longer at the firm. On the one hand, that makes a mockery of the notion that the court ought to read any meaning into the commas. On the other, it identifies a difficult challenge for drafters: how do you think of situations like this one?
I think this is where reading cases can help. It builds a body of things you have seen before, which form patterns you can be alert for. It is kind of the good drafter’s reason to read cases: not to find ambiguous language to reuse as “tested” language, but to train something like uscle memory for ambiguous language.
Yes, you’re right, but finding suitable cases to read and then wading through them, that all takes time. I’d like to think that reading MSCD allows you to cut to the chase: I describe what the fight was about and the general lessons to be drawn.
As you note, this case ties into a broader issue, namely whether a given provision is keyed to the situation at signing or whether it adjusts over time. It’s related to the issue of whether “Affiliate” means affiliates at signing or affiliates at any given time. I expect that MSCD4 will contain a general discussion of this issue.
There’s always President Ford’s method: pronounce the punctuation marks as if they were words.
Ok, now that the fun is over, I think this issue is rooted in a mistaken conflation ubiquitous in writing, the idea that writing out your thoughts so you understand them is the same as writing out your thoughts so they successfully communicate a message. Sure, all communication is fraught with some intractable sender/receiver problems, but there should be a difference between the first few drafts of a piece (or, heaven forbid, an outline) and the final version: the first attempts are the author getting his/her thoughts systematized, the final version is the author presenting her/his thoughts to an audience. Where commas and other punctuation may be just fine for the author to arrange his/her thoughts for personal reference, those same marks may cause confusion when the message is presented to others. The admonition to remember one’s audience would serve us all well as we draft contracts and write opinions about them.