Communication, Coffey and Commas

The purpose of punctuation is to make written language easier to understand. In certain uses it is also there to prevent a sentence from being ambiguous. Where there is ambiguity and conflict as to meaning, in case of legal dispute enter the lawyers, and potentially the Courts. Not good news. 

The comma is low in the food chain of punctuation. The new Secretary of State for Health and Social Care has decreed that one usage of it, the so-called Oxford Comma, shall no longer happen in her department. End. Verboten. 

The Oxford comma, or serial comma as it is termed in American English, is the comma that appears after the penultimate item in a list. If used, it should be used for the purpose/s I have outlined above. In my title, a comma after 'Coffey' is unnecessary; without the comma the title wording makes as much sense as if the comma had been included. So don't use it here. (BTW it is a title for the piece and so no full stop).

Ah, but does this mean that the Oxford comma should be banished to outer darkness? Here St. Therese is wrong.

I shall attempt to demonstrate this by reference to an American case, O'Connor & others v Oakhurst Dairy & another (2017).

Under a statute of the State of Maine, workers were entitled to receive overtime payments unless they undertook specified exempt activities. The list of exempt activities included:

'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.'

The action was brought by delivery drivers. The drivers delivered meat and fish. The drivers did not pack the products.

Were the drivers entitled to overtime for their delivery work? The Court determined yes - not what their employer expected.

Why? The critical words were 'packing for shipment or distribution'. As written, that was one activity, and so was an exempt activity. There was no exempt activity of distribution alone.

You will be with me at this point in appreciating that the meaning would have been different Oxford comma had been inserted after 'shipment', making 'packing for shipment'  the penultimate item in the list and 'distribution' the final item, so that now, without stating the obvious, distribution alone would have been an exempt activity.

A line of analysis that a Court can take is to look at two alternative meanings in ambiguous wording, and to discount one if that meaning would be patently absurd. Maybe here one could argue that 'packing for shipment or distribution' cannot make sense, as 'shipping' and 'distribution' are synonymous and surely 'distribution' belonged as an independent item. But the practical point is that this involves accepting apparent ambiguity and then attempting to force an argument as to preferred meaning. Why leave yourself in this bind if the bind is avoidable?

Thus the principle has to be: avoid risk by getting your intended meaning unequivocally clear. The worse the consequences of ambiguity eg the hell of Court, the greater the care that should be taken. This is a point I ram home when teaching drafting and written communication to junior lawyers.

As to Therese Coffey, this feels like a Rees-Moggish attempt to stamp one's authority on Departmental minions, possibly based on some ideological view concerning plain English. The problem with ideology is that it is occasionally blind to reason.

Whoops - I seem to have strayed into another, and significantly more substantial, area where an ideological approach has led to a game of high stakes. Time to stop.



The author is a writer, speaker, historian, occasional tour guide, and former Managing Partner of a City law firm. He also teaches ethics and legal practice skills to junior lawyers.