Civil Litigation Defense Tuesday, October 9, 2018
While this is a bit odd, and a bit funny, the lesson of this case coming from the First Circuit Court of Appeals is super-important. The failure of using an Oxford comma in a statute led to a $10,000,000 judgment being entered against a defendent, because the last two words were read together without a comma, an ambuigity that was not intended.
When writing, it is important to recognize the need for such a comma. That is, when writing a list (John, Mary, Tim and Pete) without the comma between “Tim”, and “and” causes “Tim and Pete” to be conjoined for the purposes of the list, meaning both of them. If the writer meant the equivalent of Tim seperate from Pete, it should be “John, Mary, Tim, and Pete”. Even though the statue in question in this case probably meant that the last two items in the case were not conjoined, the failure of the comma created an ambiguity that was construed in favor of the party arguing it was meant to be conjoined. That party won $10,000,000 as a result.
I followed this case because I already had a case where I made the same arguement regarding a statutory interpretation, and relied on the lower court’s ruling (which has now been affirmed).
The lessons: Draft carefully and use the Oxford comma where required to avoid ambiguity; and if the language being used against you fails to include what should be a necessary Oxford comma, you may have hit the jackpot.
About the Author: Ron Berutti, Esq. is a complex litigation specialist. He is often called on to represent clients in the most difficult of cases, regardless of the subject matter. This breadth and diversity of his litigation experience is invaluable to his clients. He has tried both complex and general cases for institutional and individual clients , particularly in the areas of business torts, real estate, utilities, employment, and professional malpractice. With a tenacious focus on the client’s goals, Ron employs ethically creative strategies and strives to achieve the best results possible. Ron regularly practices in the state and federal courts of New Jersey and New York at both the trial and appellate levels.