There are not often clear winners in the age-old battle over style and usage in legal writing. But recently, a United State Court of Appeals issued a ruling in favor of the Oxford comma.

While debates rage over substantive legal rights, reciprocity, and the future of our profession, few topics evoke more passion among members of the bar than whether or not to use the Oxford comma. No doubt you’ve encountered true believers preaching its salvation—or its evils. The Oxford comma—or serial comma—is used before the words and or or in lists of three or more things. Proponents argue it clarifies sentences when lists are used. As Grammarly notes, there is quite a difference between the sentences,

I love my parents, Lady Gaga and Humpty Dumpty.

and,

I love my parents, Lady Gaga, and Humpty Dumpty.

Bryan Garner—legal writing and usage expert and editor of Black’s Law Dictionary—recommends always using it. Still, respectable style guides disagree about whether and when to use the comma.

Most often, of course, it does not really matter. However, the United States Court of Appeals for the First Circuit recently ruled in favor of delivery drivers for Oakhurst Dairy in Maine because the lack of a comma made a portion of the state’s overtime laws too ambiguous.

The state’s law excludes the following activities from eligibility for overtime pay:

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.

The drivers argued that the lack of a comma between “packing for shipment” and “or distribution” meant the law referred to the single activity of “packing,” but not to “packing” and “distribution” as two separate activities. Because the delivery drivers distribute—but do not pack—the goods, they were eligible for overtime pay.

Circuit judge, David J, Barron, reversed the trial judge’s determination in favor of the dairy company, writing:

We conclude that the exemption’s scope is actually not so clear in this regard. And because, under Maine law, ambiguities in the state’s wage and hour laws must be construed liberally in order to accomplish their remedial purpose, we adopt the drivers’ narrower reading of the exemption.

While brevity is the soul of wit, and judges universally prefer shorter motions and pleadings, it is good practice to err on the side of clarity and include the Oxford comma in legal writing. If the Maine legislature had done so, things would have most certainly turned out differently for the Oakhurst Dairy and its delivery drivers.

Ryan Gilbert is an attorney in Gainesville, Florida with Dan Newlin & Partners, practicing in the areas of personal injury and wrongful death. Ryan serves at the elected representative on the Florida Bar Young Lawyers Division Board of Governors for the Eighth Judicial Circuit.