On October 8, 2000, the television comedy series “Ed” premiered in the United States. The premise of the show was that a successful lawyer, named Ed Stevens, was fired from a prestigious law firm in New York because of a grammatical error and returns to his small home-town in Ohio, to end up owning and running the local bowling alley. His mistake was misplacing a comma in a multi-million dollar contract that cost his firm $1.6 million. The series was hugely popular during its four-season run, not only because viewers found the contrast in Ed’s change of life-style entertaining, but also because they found funny the notion that a grammatical error so insignificant could be made by a competent legal professional, and that it could have such huge repercussions.
Unfortunately, these situations not only happen on television… and they are not always funny.
“Sometimes, what is not written says more, and is more consequential, than the words that appear on the paper.”
On March 13, 2017, a U.S. Court of Appeals reversed a multi-million dollar decision from a lower court – because of a comma. Labor laws in the State of Maine establish that overtime will not be paid to work pertaining to “…the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of…” perishable goods. Truck drivers of Oakhurst Dairy argued that since there was no comma between the terms ‘packing for shipment’ and ‘distribution,’ the alternative conjunction ‘or’ indicated that both are two different terms of the same activity; so ‘distribution’ itself was not included in the list of exceptions and should be paid overtime. The company, on the other hand, maintained that the disjunctive conjunction ‘or’ served to enumerate all activities in the list of exceptions, so that ‘packing for shipment’ and ‘distribution’ were two individual activities within a list of others, none of which generated overtime. Ultimately, the court agreed with the truck drivers and ordered Oakhurst Dairy to pay more than $10 million.
Businesses lose millions of dollars each year due to grammar or spelling mistakes that result not only in economic losses, but also in damages to the image and commercial reputation of the company which leave an impression of negligence in the minds of consumers. Many of these errors are typographical mistakes, such as in the case of Italian airline, Alitalia, which in 2006 offered flights from Canada to Cyprus for only $39, because the executive in charge of publishing the fare misplaced the decimal point in the normal rate of $3,900. This mistake cost Alitalia $7.7 million in losses in the almost 2,000 tickets that were purchased before it had time to correct the mistake. Others, are due to carelessness, such as in the case of the Japanese company Mizuho, who tried to sell shares of a subsidiary in the Tokyo Stock Exchange. Their intention was to sell individual shares for a price of 610,000 Yen each, but due to negligence by the broker, they ended up selling 610,000 shares for only one Yen each; incurring in a $340 million loss.
However, other mistakes are due to a lack of language proficiency on the part of the lawyer, and these are the most concerning because it is precisely the lawyer’s job to ensure the integrity and clarity of the document. Lawyers work with the written word and are obligated to handle the language with mastery, accuracy and precision. Their main duty is to adequately articulate the positions and the arguments of their clients, and know how to clearly communicate their ideas. The legal professional not only requires the analytical capacity for creative problem solving, but also the skills to write and express himself in a clear manner, leaving no gray or vague terms which may call into question the interpretation of what he is trying to convey. This is especially relevant in the case of contracts and other legal documents, in which parties exchange obligations and whose default may entail serious financial consequences.
In 2005, the Canadian telecommunications company, Bell Aliant, entered into a contract dispute with the cable company, Rogers Communications, seeking the early termination of their agreement. The termination clause in the contract provided that “…this agreement 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.” Bell Aliant argued that they had the right to terminate the agreement at any moment, as long as they gave Rogers a one-year written notice; while Rogers argued that this right only applied until after the first five-year period was concluded. The difference between both interpretations came down to the second comma and represented more than $900,000 in damages. In the end, the courts ruled in favor of Rogers, having to resort to another version of the contract, written in French.
Grammar and spelling do have significant value in the writing and revision of legal documents. Ed’s comma cost his firm $1.6 million, a decimal point cost Alitalia $7.7 million, and the conjunction ‘or’ cost Oakhurst Dairy $10 million. The proper use of language and rules of punctuation are absolutely essential for a literal interpretation, free of ambiguity. Nevertheless, it is not enough to verify that spelling and grammar are correct during a process of legal revision, as some lawyers unfortunately limit themselves to do.
It falls within the scope of a lawyer’s responsibility to foresee and avoid the possibility of confusion when interpreting legal documents that may give rise to disputes and result in detriment to the interests of the parties. Sometimes, what is not written says more, and is more consequential, than the words that appear on the paper. And this is twice as relevant where the lawyer is also a notary, and assumes the professional responsibility for the drafting of the document and its compliance with legal formalities. A constant and meticulous revision of the text and the periodic edition of what is written, become necessary tools for the author or reviewer of legal documents. Impatience and haste are his main enemies.
Typographical errors, carelessness, poor spelling and grammar mistakes are luxuries that lawyers, unfortunately, cannot afford. It is important to remember that “Don’t be thorough” and “Don’t; be thorough,” are not the same thing.
