The $4.85 Million Comma

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Modifiers can come earlier than (premodifiers) or after (postmodifiers) the merchandise being described. If you wish to sound lawyerly — and ensure no one is aware of what you’re speaking about — you would additionally name these prepositives and postpositives.

He turned the web page rapidly.

He rapidly turned the web page.

Within the instance above, the adverb “rapidly” modifies the verb “flip.” Adjectives often precede nouns, however not at all times, as in “everybody current agreed.”

It will get much more sophisticated when a modifying phrase pertains to a sequence of things.

As this submit is written, an enchantment is pending within the eleventh Circuit that activates whether or not a postmodifier pertains to the complete sequence or solely the final merchandise. The argument is whether or not a comma would make a distinction.

4 million, eight hundred fifty thousand {dollars} is at stake.

It’s About Language in an Insurance coverage Coverage

Constantin offered auditing companies to ECB USA, which seems to be a meals distributor and never a monetary establishment. ECB sued for skilled negligence. Chubb, Constantin’s skilled legal responsibility insurer, declined protection on the bottom that the companies offered weren’t lined inside the coverage’s definition of administration consulting companies. Constantin consented to a $4,850,000 judgment and assigned its rights towards Chubb to ECB.

The coverage outlined lined administration consulting companies as:

Providers directed towards experience in banking finance, accounting, danger and techniques evaluation, design and implementation, asset restoration and technique planning for monetary establishments.

The dispositive concern got here down as to if the phrase “for monetary establishments” utilized to all of the enumerated kinds of companies or solely to asset restoration and technique planning. ECB argued that controlling regulation mandates {that a} qualifier applies solely to the final merchandise except separated by a comma. Auditing comes inside accounting. Subsequently, Constantin’s companies had been lined.

In different phrases, ECB argued that for the definition to use solely to monetary establishments, it ought to have learn:

The district court docket dominated that the phrase “for monetary establishments” modified the complete sequence.

In accordance with “Plain English for Legal professionals,” “When a sentence comprises three or extra objects joined with one conjunction, put a comma after every phrase besides the final.”

Type guides differ about whether or not so as to add a comma earlier than the final merchandise in a sequence. “Garner’s Fashionable English Utilization,” the “Chicago Guide of Type,” the “MLA Type Guide” and “Oxford Type Guide” (no shock there) say to insert it. Journalists and communications professionals abide by the AP Stylebook, which doesn’t use the Oxford comma.

No authority directs a author to put a comma after the final merchandise in a sequence.

The “final antecedent rule,” which Brian Garner calls the Final-Antecedent Canon, outlines learn how to resolve postmodifier ambiguities. Within the absence of an obvious opposite intention, these qualifiers refer solely to the final antecedent. Accordingly, ECB argued, the qualifier utilized solely to the final antecedent as a result of there was no comma after it.

There are literally at the very least three approaches to fixing this ambiguity. Garner’s Canon has been criticized and isn’t actually about commas.

The Lesson: Put the Modifier First

Why set off litigation when higher drafting can keep away from these issues? When a modifier pertains to a sequence, inserting the modifier firstly is often clearer.

Right here’s a method the outlined time period at concern may have been written:

Administration consulting companies is outlined to incorporate the next companies offered to monetary establishments: companies directed towards experience in banking finance, accounting, danger and techniques evaluation, design and implementation, asset restoration, and technique planning.

How would you might have drafted the coverage’s outlined time period?