Punctuation – the commas, periods, apostrophes, hyphens, columns and semi-columns are all often the source of a headache. The topic of punctuation is certain to be part of the 1L writing instruction. It is not only the writing instructors emphasizing the need to pay attention to detail and use punctuation correctly, but it is also the courts reinforcing the same idea.
The first post titled Ambiguous punctuation leads to loss of attorney’s fees (or is it attorneys’ fees?) brings brings the readers’ attention to the case Bradshaw v. Boynton-JCP Assocs., Ltd., No. 4D11-4242 (Fla. App. 4th Dist. Apr. 10, 2013), in which the Florida Appellate Court reversed “the award of attorney’s fees pursuant to an offer of judgement because ambiguities in the offer prevent its enforceability.”
The offer was apostrophe-challenged, creating ambiguities as to whether the drafter intended references to singular or plural defendants or plaintiffs. The offer, entitled “Defendant’s Joint Proposal for Settlement,” also appears to have been adopted from a form without sufficient editing; it requires “Plaintiff’(s)” to “execute a stipulation,” and “Plaintiff(s)” to “execute a general release of “Defendant(s).”
The second blog post titled For punctuation geeks, an interesting decision by the U.S. 2nd Circuit highlights AIG v. Bank of America, No. 12-1640-cv (2d Cir. Apr. 19, 2013), in which the Second Circuit Court addressed the use of modifying phrase following a list of nouns or phrases.
Defendants, in their effort to support removal jurisdiction, argue for an interpretation of § 632 which not only violates grammatical rules, but also would result in an arbitrary and illogical meaning. Citing a principle of construction which favors reading a “limiting clause or phrase . . . as modifying only the noun or phrase that it immediately follows,” Barnhart v. Thomas, 540 U.S. 20, 26 (2003), Defendants argue that the phrase “either directly or through the agency, ownership, or control of branches or local institutions in dependencies or insular possessions of the United States or in foreign countries” should be read to modify only the immediately preceding clause, “arising . . . out of other international or foreign financial operations,” and not as modifying the other preceding clauses specifying suits that arise out of “transactions involving international or foreign banking, or banking in a dependency or insular possession of the United States.” We can see no merit, grammatical or otherwise, to the argument.
The Court analyzes that
[o]ne of the methods by which a writer indicates whether a modifier that follows a list of nouns or phrases is intended to modify the entire list, or only the immediate antecedent, is by punctuation—specifically by whether the list is separated from the subsequent modifier by a comma. When there is no comma, as in the statute considered in Barnhart, the subsequent modifier is ordinarily understood to apply only to its last antecedent. When a comma is included, as in the Edge Act provision, the modifier is generally understood to apply to the entire series.
The Court continues by applying the rule to an example
[T]he statement, “This basketball team has a seven-foot center, a huge power forward, and two large guards, who do spectacular dunks,” differs from the statement, “This basketball team has a seven-foot center, a huge power forward, and two large guards who do spectacular dunks.” The first statement conveys that all four players do spectacular dunks. The latter statement conveys that only the guards do so.
And the lesson learned? Punctuation Matters!