Lawyers in Need of Linguistic Training

[Jonathan Lighter]

One reason for the furor may be that the "ambiguous comma" is a staple of academic folklore.  About twenty years ago I was discussing with a pair of colleagues the often omitted "final" comma in a series such as "Tom, Dick, and Harry." Frankly, I recommend the comma because I find it aids my limited comprehension, but recent practice, particularly among journalists, varies as to including or omitting it. One yung colleague solemnly insisted that the comma was absolutely essential, and that he drove the point home to his students by telling them of the "multi-million dollar lawsuit" that turned finally on the interpretation of the comma's absence.  Needless to say, the sympathetic party in the story lost out to the evil, Pharisaic party that had seized upon the comma issue to win the day in spite of all other human factors.

  Also needless to say, the story-teller knew nothing about the suit's details, except that he had "read about it," and that it involved a giant inheritance.

  Since you bring the subject up, John, do you know anything of a notorious *actual* lawsuit that turned crucially on a comma of that type?

  JL
"Baker, John" <JMB at STRADLEY.COM> wrote:
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Poster: "Baker, John"
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Or so says the headline on a posting at Language Log,
http://itre.cis.upenn.edu/~myl/languagelog/archives/003425.html. The
posting discusses a dispute between two Canadian companies as to the
meaning of the termination provision of a Support Structure Agreement
(SSA), which stated:

<shall be effective from the date it is made and shall continue in force
for a period of five (5) years 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.>>

One company, Rogers Communications, argued that the "plain and
ordinary meaning" of the provision was that the agreement could only be
terminated at the end of the five-year (current or renewal) term. The
other company, Aliant Telecom, argued that the provision could only be
interpreted as to allow the termination of the agreement, by either
party, after providing one year's prior notice at any time. Each
company contended that its interpretation best reflected the intent of
the parties.

The Canadian Radio-television and Telecommunications Commission
agreed with Aliant,
http://www.crtc.gc.ca/archive/ENG/Decisions/2006/dt2006-45.htm. The
Commission said that the wording was clear and unambiguous and that, had
the intention been to limit the right to terminate to the end of the
current and any renewal term of the SSA, clear wording would have been
included specifying by what date the notice was required. It added that
this interpretation does not bring about an unrealistic result or a
result that would not be contemplated in a commercial environment.

So far, so good. The CRTC's interpretation appears to be
exactly right as a matter of applying the contractual language, and
while I do not know whether a floating one-year termination provision is
commercially reasonable in this industry, I expect that the CRTC does
know and is correct in its judgment. We do not know where Rogers went
wrong; perhaps it failed to ensure that the contract reflected its
contractual understanding, or perhaps its lawyers reviewed the agreement
after the notice of termination was received and wrongly thought they
could argue that the notice was premature. If the former, it isn't
surprising that in a long and technical contract, drafted by human
beings, there was a drafting error.

So why are lawyers in need of linguistic training? An article
in the Toronto Globe and Mail,
http://www.theglobeandmail.com/servlet/story/RTGAM.20060806.wr-rogers07/
BNStory/Business/home, essentially claimed - based on no evidence, or at
least none that is cited in the story - that Rogers Communications'
understanding was that intended by the parties, but a superfluous comma
(the one after "terms") gave Aliant a $2.1 million windfall. Ignoring
the discussion in the CRTC decision, which did not rely just on the
comma, the Globe and Mail called it a "grammatical blunder" and "the
most costly piece of punctuation in Canada."

Mark Liberman in the Language Log, following the Globe and Mail,
commented, "Lawyers with a bit of common sense, combined with elementary
skill in analyzing ambiguities of structure and interpretation, should
have seen the problem coming, and re-worded that part of the contract so
as to make it entirely clear who was entitled to cancel it when. Given
the importance of such ambiguities of interepretation [sic], in
construing laws and judicial orders as well as contracts, I've always
been puzzled that lawyers aren't routinely educated in basic practical
syntax and semantics. . . . Ironically, we've learned a lot over the
past century about the analysis of structure and meaning. It's too bad
that lawyers and their clients so rarely get the benefit of that
knowledge."

Having written a contract or two, I suspect that lawyers do know
something about drafting and construing contracts. In any case (and on
this point, at least, Liberman seems to agree with me), it wasn't about
the comma.


John Baker

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