Legal Drafting by Design: A Unified Approach by J. Lyn Entrikin Richard K. Neumann

Author:J. Lyn Entrikin Richard K. Neumann [Richard K. Neumann, J. Lyn Entrikin]
Language: eng
Format: mobi
Tags: Law, Legal Education, Legal Writing
ISBN: 9781454841395
Publisher: Wolters Kluwer
Published: 2018-02-15T21:00:00+00:00

[W]ords and punctuation express meaning. Meaning is the life of language.

—Masson v. New Yorker Magazine, Inc.1

§ 21.1 Punctuation and Sentence Structure: Dual Aids to Meaning

For the drafter, punctuation is essential to clearly and accurately convey legal meaning at the sentence level, and to help the reader easily navigate a legal instrument. Its primary purpose is to clarify meaning and to aid reading; its “sole aim should be to bring out more clearly the author's thought.”2

In the not-too-distant past, English writers tended to punctuate whenever a sentence's grammatical structure appeared to call for it, an approach known as “close punctuation.”3 Contemporary writers tend to favor less frequent punctuation.4 That means a drafter of legal instruments needs to pay careful attention to sentence structure and word order to avoid ambiguity and misinterpretation.

Punctuation and sentence structure work together to communicate the drafter's meaning. Punctuation, isolated words, and sentences alone are unreliable guides to meaning. The Supreme Court has referred to interpretation as “a holistic endeavor.”5 Legal readers assume that effective lawyers follow generally accepted principles of good writing. Drafters who fail to understand that fundamental point unnecessarily create litigation risks and therefore fail to represent the best interests of their clients.

A century ago, punctuation in day-to-day writing was as much a matter of style as convention. The proper use of “points,” as punctuation marks were then called, was essential to enable the reader to better understand the author's meaning and to prevent ambiguity.6 At the same time, punctuation was considered “an instrument capable of manipulation in a thousand ways.”7 The reason was that writers varied in their use of punctuation in the early twentieth century, and inconsistencies were common. What we know today as punctuation “rules” were once more accurately described as conventions. The very idea of consistent punctuation rules was novel.8

But most readers in the twenty-first century understand the basic rules of punctuation, and they rely on the legal drafter to follow those rules to clarify the meaning of written language. Consequently, modern courts around the world generally rely on punctuation as a guide when interpreting statutes, contracts, and other legal instruments, even if punctuation alone is not dispositive when the words themselves plainly convey the meaning.9

A couple of examples illustrate the modern judicial approach to punctuation as an aid to interpretation. The Ohio Court of Appeals recently interpreted a city parking ordinance after the appellant was convicted for parking her pickup truck on the street for more than 24 hours in violation of the following ordinance:

(a) It shall be unlawful for any person…to park or leave standing upon any street, road, thoroughfare or highway in the Village, any motor vehicle camper, trailer, farm implement and/or non-motorized vehicle for a continued period of twenty-four hours.…10

The issue on appeal was whether the ordinance applied to the appellant's pickup truck. She argued that it did not qualify as a “motor vehicle camper” or any other category of roadworthy equipment listed in the ordinance. The Village argued that the trial court had properly interpreted the

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