This is a guest post by Khor Huy Jye.
Lawyers talk and write a lot; we make a living from using words. From litigators to transactional lawyers, it pays (well, that’s subjective) to have our craft perfected.
It seems foolish to have the value of our work and credibility discounted by the inept use of words. Let’s discuss about some of the common mistakes we might routinely make in the course of our careers! For the purists out there, I hope this serves as a fun refresher.
1. OXFORD COMMA
The Oxford comma, also known as a serial comma, is the comma between the penultimate and final items in a list, often preceding the word “and” or “or”.
Example A
Let’s start with a classic example from the Times of London.
The sentence contains more than one misleading element.
Yes, an Oxford comma would have prevented Mandela from being a dildo collector, but it is plausible that he is indeed an 800-year-old demigod.
Example B
O’Connor v Oakhurst Dairy 851 F.3d 69 (1st Cir. 2017)
As the adage goes, “There’s no use crying over spilled milk”. This oft-quoted case involves an interpretive dispute over a lack of an Oxford comma between a dairy company and its milk-truck drivers.
According to Maine’s overtime law, the following activities do not qualify for overtime pay:
“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 delivery drivers contended that without a comma after “shipment”, the combination of words refer to the single activity of “packing”, i.e. whether the “packing” is for “shipment” or for “distribution”. Quite obviously, the delivery drivers are not involved in the “packing” of dairy products, which are perishable; they drive trucks and deliver them.
On the other hand, the employer argued that the disputed words refer to two distinct activities, either “packing for shipment” or “distribution”. As the delivery drivers clearly engage in the “distribution” of perishable food, they fall within the exemption and were thus outside the protection of overtime law.
The United States Court of Appeals for the First Circuit agreed with the delivery drivers on the interpretation of the scope of exemption regarding Maine’s overtime law. The parties eventually reached a $5 million settlement.
For comma connoisseurs, it was presumably a moment to rejoice. However, it is pertinent to note that Court’s decision did not hinge solely on punctuation; it also took into account Maine’s rule of construction that ambiguities in laws are construed liberally in order to accomplish their remedial purpose.
As an update, the commas have since been removed from the statute and replaced with semicolons (more on that later!).
Example C
In this case, the Supreme Court discussed the significance of the Oxford comma after “the Secretary General of the Ministry of the Federal Territory,” in Section 4(7) of the Federal Capital Act 1960 (“the Act”).
Example D
Areson v Areson 3 Denio 458 (1846)
However, you can also have too much of a good thing.
Here, the Oxford comma was the root of the conundrum. The testator in this case wrote in his will:
“Second. I give and bequeath unto my beloved wife, Mary, all my real estate, one clock, and the interest of five hundred dollars during her lifetime.”
The lower court held that the life estate only applied to the $500 interest whilst the land and the clock belonged to Mary’s estate. The judgment, however, was reversed as a result of a narrow split of an 11-10 decision on appeal.
What do you think? Does “during her lifetime” apply only to the $500 interest, or to the real estate, clock, and the interest?
2. SEMICOLON
In general, semicolons are used to connect two or more closely related, but independent, clauses in the same sentence; they are also used in place of commas between items in a complex series, especially when one or more of those items is already punctuated with at least one comma.
Let’s take a look at some examples!
- I like semicolons; I think that they are underrated and underused.
- Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.
- I have heard it said that lawyers who use too much Latin are probably practiced deceivers and we all know that we must be on guard against Greeks bearing gifts; perhaps those who attend to the wisdom of both Rome and Greece, listening to both, but deferring to neither, are protected from the perils of fraudulent misrepresentation and sudden assault.
- Subject to Clause (9), the Federal Government may, upon application made by any person of or over the age of twenty-one years who is not a citizen, grant a certificate of naturalization to that person if satisfied — (a) that — (i) he has resided in the Federation for the required periods and intends, if the certificate is granted, to do so permanently; (ii) (Repealed); (b) that he is of good character; and (c) that he has an adequate knowledge of the Malay language.
Unlike the usage of the Oxford comma which may or may not add clarity to the reader’s experience, the semicolon has the effect of marginally reducing confusion among readers.
In any event, some of us love it; some of us don’t. Should you be swayed to start using them more liberally after this, do ensure that you use them properly!
3. REVERT
Lawyers, of all people, should avoid accepting incorrect practices merely because others persist in practising them.
So pervasive is the improper use of this word that I doubt if reform is possible.
Revert DOES NOT mean “reply”; rather, it means “return to (a previous state)”.
Though the accurate usage of the word has been explained to many, most will revert to their old ways.
Some examples you may use in lieu of reply include, “Please respond / get back to …”
4. REFER TO
Refer to is a phrasal verb. Going with the Merriam-Webster dictionary on this one, the definition of a phrasal verb is a phrase (such as take off or look down on) that combines a verb with a preposition or adverb or both and that functions as a verb whose meaning is different from the combined meanings of the individual words.
I urge you to STOP using “Your email below refers.” in all correspondence. There is absolutely nothing wrong with the classic “I refer to your email below.”
5. CORAM
This is a Latin term which means “in the presence of”; it is used in phrases that refer to the appearance of a person before another individual or a group. It is often seen in judgments.
The improper usage of this term is apparent among the “recently admitted lawyers”.
Coram and “panel” are not interchangeable. The common question “Does anyone know the Coram for Federal Court 1 today?” is inaccurate. Please take note, counsels!
“To succeed in the profession of law, you must seek to cultivate command of language. Words are the lawyer’s tools of trade.”
Lord Denning, “The Discipline of Law”
Isn’t English a strange language? So, are you with me, against me, or undecided? Leave your examples and questions in the comments and let’s quibble over semantics!
Author’s Biography
Khor Huy Jye received her Bachelor of Laws from the University of Hertfordshire in 2016 and completed her Certificate in Legal Practice in 2017. She joined Messrs Raja, Darryl & Loh as a pupil in 2018, where she remains in practice to date. She does corporate, commercial, and litigation work, with particular emphasis on investment management, insurance, corporate, and commercial transactions. When awake and not at work, you’ll find her drinking or eating, at times in tandem.