By John G. Browning
Lawyers are in the business of communication and persuasion, and poor, imprecise, or even sloppy writing diminishes our abilities to effectively communicate and persuade. But if simply being better at two of the most important aspects of your job isn’t motivation enough, consider the costly consequences of poor legal writing. For example, one professional negligence insurer in the United Kingdom revealed that drafting errors by lawyers accounted for one out of every eight claims. And in a LexisNexis survey, 33% of respondents admitted to skipping proofreading on a regular basis. Drafting errors can change the meaning of a sentence, create ambiguities, and lead to both litigation and reputational damage for lawyers. Unfortunately, the case law abounds with cautionary tales.
The Andy Warhol Estate
Pop artist and cultural icon Andy Warhol once said that everyone will have their 15 minutes of fame. Unfortunately for his lawyer, Edward Hayes, infamy lasts even longer and costs a great deal. After Warhol’s death, one of the assets in his estate was Interview magazine. The estate sold it based on a down payment secured by a promissory note and a personal guaranty, payable not to the estate but to a company called Andy Warhol Enterprises, Inc. Unfortunately, Hayes had dissolved that company a week before the promissory note was signed, but had neglected to ensure that the guaranty was made payable to the estate (the promissory note had been revised, but not the guaranty). As a result, the guaranty required payment to a nonexistent entity. In the ensuing litigation, the court struck the promissory note and held that it was unenforceable. The $7 million balance owed to the estate was lost.
“For Want of a Comma, We have This Case”
That was the introduction in the First Circuit’s opinion in O’Connor v. Oakhurst Dairy, 851 F.3d 69 (1st Cir. 2017). The case involved truck driver employees of a dairy company in Portland, Maine, who alleged that they were owed years of unpaid overtime wages. The statute in question declared that overtime wasn’t due for workers involved in “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.” Counsel for the truck drivers successfully argued that because there was no comma after “shipment” and before “or distribution,” the employees were owed overtime pay. If a comma had been there, the statute would have expressly ruled out those who distributed perishable foods. Although the district court ruled in the dairy’s favor, on appeal, the First Circuit held that the provision was ambiguous and so should be more liberally construed to give credence to the drivers’ interpretation. That ruling kept the $10 million lawsuit alive, and shortly thereafter, Oakhurst Dairy settled for $5 million.
This is hardly the only case that hinged on the Oxford comma. In one recent case, a federal district court in Virginia found that a warranty provision in a contract was unclear for inconsistent use of the Oxford comma and conjunctions. Source One, Inc. v. John Zink Co., LLC, 2021 WL 1626256 (E.D. Va. Apr. 27, 2021). In another case, use of the Oxford comma helped an Illinois judge to interpret a legislative act. Oommen v. Glen Health & Home Mgmt., Inc., 2020 WL 6822702 (Ill. App. Ct. 2020). And in Sullivan v. Abraham, a defamation case that involved interpretation of Texas’ anti-SLAPP statute, the Oxford comma also proved pivotal. The Supreme Court of Texas opined that “Although the use of the Oxford comma is not definitive, we agree that its use here together with the inclusion of the word “other” and the absence of the other comma . . . indicate the Legislature intended to limit the justice-and-equity modifier to other expenses.” 488 S.W.3d 294, 299 (Tex. 2016).
Proofread, Proofread, Proofread
Carelessness can be costly for lawyers and their clients. In December 2005, Mizuho Securities Co., a division of one of the largest national banks in Japan, tried to sell shares of a recruiting company on the Tokyo Stock Exchange. But instead of offering simple shares for 610,000 yen apiece, a drafting error resulted in the sale of 610,000 shares for 1 yen apiece. In less than a day, the company lost almost $340 million. In 2006, two Canadian telecommunications companies, Rogers Communications and Bell Aliant, went to court over the wording of a contract to replace utility poles around the country. The dispute stemmed from a single sentence: “This agreement shall be effective from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party.”
Each side had a different interpretation, based on the comma placement after “five (5) year terms”: Bell Aliant argued that the simple year’s notice of termination applied at any time, while Rogers maintained that it only applied after the first five-year term ended. This difference was significant, since Rogers had originally contracted in 2002 to lease the poles from Bell Aliant at a cost of $60 (Canadian) per pole. By 2004, the cost was nearly twice that, and Bell Aliant voted (understandably) to renegotiate at the newer and higher price. Rogers naturally didn’t want to do so. Courts and regulatory authorities had a tough time as well, with a regulatory agency, CRTC, initially ruling in Aliant’s favor in the $2.3 million dispute. On appeal, Rogers eventually prevailed when justices compared a counterpart French language version of the contract.
Professional negligence claims don’t happen in a vacuum. The errors in drafting, careless or nonexistent proofreading, and imprecise or ambiguous writing that can lead to costly litigation for clients can also come back to bite the lawyers. On the flip side, litigation can be avoided entirely, or minimized by well-crafted documents that prevent opponents from taking advantage of an ambiguity or error to support a position that conflicts with the parties’ original understanding. And even when litigation is inevitable, well-drafted documents can lower litigation costs by circumventing procedural disputes over things like indemnifications, choice of law, and forum and venue selection. Better writing = happier clients + fewer claims.
John Browning is a partner at Spencer Fane LLP and is a former justice on Texas’ Fifth Court of Appeals. He is the author of 5 books and hundreds of legal articles, and has won numerous legal writing awards. He is the Vice President of Scribes, the American Society of Legal Writers.
Information provided by AttPro Ally is not intended as legal advice. This publication provides best practices for use in connection with general circumstances and ordinarily does not address specific situations. Specific situations should be discussed with legal counsel licensed in the appropriate jurisdiction. By publishing practice and risk prevention tips, Attorney Protective neither implies nor provides any guarantee that claims can be prevented by the use of the suggested practices. Though the contents of AttPro Ally have been carefully researched, Attorney Protective makes no warranty as to its accuracy, applicability, or timeliness. Anyone wishing to reproduce any part of the AttPro Ally content must request permission from Attorney Protective by calling 877-728-8776 or sending an email to [email protected].