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True story: Recently, a colleague handed me a markup of a brief I had written. His revisions drove me into an uncharacteristic fit of rage because of one unpardonable sin: He removed three commas. Not just any commas, but serial commas. You know the serial comma. When you have a list of three or more things, the serial comma comes after the penultimate item. For example, in the phrase “red, white, and blue,” the serial comma is the one after “white.” The Oxford University Press embraces the serial comma, while others, including The New York Times, eschew it. In the world of legal writing, the status of the serial comma keeps many of us — well, me — up at night. Linguist Peter Tiersma reports that most lawyers omit the serial comma, and he seems not the least bit worked up about it. In “The Elements of Legal Style,” Bryan Garner insists that good usage requires the serial comma. Meanwhile, in the recent book “Eats, Shoots & Leaves,” Lynn Truss advises us not to be “too rigid” about it. Heretic! Garner, of course, is correct. As he writes: “Omitting [the serial comma] may cause ambiguities, while including it never will.” If your contract states that the vendor must deliver “eggs, milk and macaroni and cheese,” the serial comma will clarify whether the vendor is supplying pasta and cheese separately, or boxes of mac and cheese. Before anyone dismisses such talk with a brisk “get a life,” just remember that punctuation has decided many a lawsuit and has even sent men to the gallows. THE PREGNANT PAUSE It wasn’t always so important. In fact, punctuation got off to a slow start in the law, since medieval scribes were surprisingly lackadaisical on the subject: a dot here, a slash there. But when the English began printing their statutes in the 1480s, the printers insisted on things like section headings and consistent markings, ultimately leading to the enthusiastically punctuated creature that law is today. The rise of punctuation went hand in hand with the law’s addiction to run-on sentences. Tiersma points out that while scientific prose has a mean sentence length of 27.6 words, one California penal statute alone consists of a single sentence of 150 words. At times, punctuation has turned deadly. In United States v. Palmer, the U.S. Supreme Court in 1818 upheld the death penalty for two Bostonians who had robbed a Spanish ship on the high seas. The conviction turned on how to read the statute, which defined piracy as “murder or robbery, or any other offense, which, if committed within the body of a county, would, by the laws of the United States, be punishable with death.” The defendants argued that, although they had committed robbery, it was not the sort that would have been punishable by death if committed within “the body of a county” of the United States. The prosecution countered that the bit about “punishable with death” only modified the phrase “any other offense,” so that any robbery or murder committed on the high seas constituted piracy. The majority agreed with the prosecution, to which a horrified Justice William Johnson said in his dissent: “Singular as it may appear, it really is the fact in this case, that these men’s lives may depend upon a comma.” THE MISSING LINK Lest anyone think that ambiguous punctuation is a historical oddity, note that in 1991 the Supreme Court interpreted the federal removal statute based, in part, on the placement of commas. The International Primate Protection League sued in Louisiana seeking to enjoin the National Institutes of Health from using primates in medical research. The NIH tried to remove the case to federal court on the strength of a law allowing removal when the defendant is “any officer of the United States or any agency thereof, or person acting under him.” The Supreme Court read the statute to mean that removal is allowed only when an officer of the United States, or an officer of any agency thereof, is the defendant. Had Congress meant to include suits where the agency itself is a defendant, the Court held, it would have put a comma after “United States.” Clearly, the justices were in no mood to monkey around with the statute’s punctuation. Adam Freedman is an associate at New York’s Schulte Roth & Zabel. He writes the “Lingo” column for New York Law Journal Magazine, an American Lawyer Media publication.

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