Last week, the United States Court of Appeals for the First Circuit decided a case that addressed the Oxford comma and how omitting it from a sentence can create ambiguity.
For those who are unfamiliar with the “Oxford” or “serial” comma, it refers to the punctuation convention of inserting a comma before the conjunction in a series of three or more items—A, B, and C. Most U.S. newspapers omit the last comma in a series—A, B and C. The Associated Press style guide canonizes this omit-the-last-comma convention. But the AP’s rule isn’t as simple as just omitting the comma before an and or an or.
Instead, the AP hedges: It tells writers to omit the last comma unless omitting it would create confusion or ambiguity.
There are several problems with the AP’s rule. Read More
The Federal Rules of Civil Procedure are “part of the supreme law of the land.”1 Thus, federal law—not plain-language advocates or well-meaning academics or a faction of forward-thinking lawyers, but federal law—dictates that a complaint “must” contain a “short and plain statement of the claim.” Rule 8’s mandatory must is conspicuously not a discretionary may. No wonder federal courts hang the “requirement” tag on Rule 8’s call for plain language.2
Every state court rule I’ve checked sings the same tune. Alabama, for instance, mandates that pleadings “shall” be “plain.” New Jersey requires “simple, concise and direct” allegations. Michigan says that allegations “must be clear, concise, and direct.” And the beat goes on . . .
So I’m always perplexed when I hear a lawyer announce, “I prefer the traditional style for my pleadings.” Of course, “traditional” style is the common euphemism for turgid and painfully unplain lawyerspeak.
A choice? A matter of personal taste? Read More
It’s been a long, cold winter here in Minnesota. But signs of spring are everywhere. One of my favorites is baseball’s return. This got me thinking about some rather awful legal writing I came across last summer while taking in a Twins game. It occurred to me that I might use it as a real-life example of how to fix bad writing, instead of just ranting about bad writing. Please comment below on whether (and why) I struck out, or at least put the ball in play. (I don’t hit too many home runs.)
If you look at the back of a ticket to a baseball game, you’ll usually find a waiver. It purports to advise you that by deciding to come to the game, you agree to waive your right to sue the league, team, or league employees if you get hurt at the game from a typical baseball event—e.g., a foul ball or a bat flying from a batter’s hands.
But here’s the problem: case law involving waivers tells us that it’s important that a waiver be clear in describing just what rights a person is giving up—one must make an informed choice to waive one’s rights. If the waiver isn’t understandable to a layperson, some courts have held that the rights are not in fact waived. Unlike a lot of legalese, this stuff matters. Read More