If you know appellate judges, you know they are all about style. Fashion, maybe not; but style, yes—writing style, that is. Most people think nothing of composing an email or letter off the top of their head. But these wizards of words labor over the smallest details. One favorite is the Oxford comma.

Commas generally break up a sentence and allow the reader to pause. So what is an Oxford comma? An Oxford comma, sometimes called the "serial comma," is the final pause separating the items in a list, prior to the conjunction "and." It also is appropriately inserted when "or" is used in a series.

This comma is not ordinary, rather it is THE comma, whose absence may change the entire meaning of a sentence. Proof of its prominence: the Oxford Comma has its own Facebook page. See https://www.facebook.com/The-Oxford-Comma-48254769340/.

Although grammatically optional in American English, many abhor the utilization of this clarifying comma, by weakly suggesting the Oxford comma is an unnecessary character appearing in already lengthy legal scholarship. See, e.g., The 2019 Associated Press Stylebook, Basic Books (found at https://www.apstylebook.com); see also Vampire Weekend's song, Oxford Comma ("Who gives a [$#%&] about an Oxford comma?").

The Oxford comma's significant role may not be readily apparent. In an effort to drive home the point, consider the following sentence with and without the Oxford comma:

In New York, I saw my parents, Elton John, and Alicia Keys.

Here, the Oxford comma precedes "and." By using the comma, the speaker describes seeing separate people: parents, Elton John, and Alicia Keys.

Now consider the same sentence without the comma:

In New York, I saw my parents, Elton John and Alicia Keys.

The absence of the Oxford comma recasts the meaning of the sentence. Note the fantastic musical lineage, as this sentence describes Elton John and Alicia Keys as the writer's parents!

Appellate opinions may already be cumbersome and, too often, New Jersey's statutes are obtuse. So why add grammatical mayhem or impose the need for syntactical analysis because of ambiguous punctuation? Importantly, struggling is unnecessary, and precision is preferred.  "Proper punctuation is both the sign and the cause of clear thinking." Lynn Truss, Eats, Shoots & Leaves: The Zero Tolerance Approach to Punctuation, Penguin Press (2016).

Regrettably, inexact punctuation is excused by our courts. For example, divining the parties' intent in a contract, our New Jersey Supreme Court has stated:

Punctuation marks are rarely, if ever, an infallible token of intention, for punctuation is to a large degree arbitrary and very often a matter of individual taste unrelated to the expression of the intention, and the comma is frequently employed merely to indicate rhetorical pauses and interruptions in continuity of thought and sometimes with an eye to structure without regard to precision in the delineation of the common purpose.

Casriel v. King, 2 N.J. 45, 50 (1949).

Yet, our Supreme Court offers mixed signals when examining punctuation ambiguity in legislation. On the one hand, we are told: "Punctuation is part of an act and may be considered in its interpretation." Moore v. Magor Car Corp., 27 N.J. 82, 87 (1958). On the other hand, the Court in Perez v. Zagami, 218 N.J. 202 (2014), reversed the Appellate Division's strict construction of a statute as punctuated, observing "the punctuation of the clause confounds its clear meaning," allowing the court to reason, "we are not persuaded that the absence of a comma in such a complicated statutory sentence is dispositive on the question of legislative intent. We note, again, punctuation, though important, is not necessarily controlling in the search for legislative intent." Zagami, 218 N.J. at 215.

"Other courts have exercised their discretion to correct so called 'scriveners' errors.'" Morris-Sussex Area Co. v. Hopatcong Borough, 15 N.J. Tax 438, 450 (1996). See also U.S. Nat. Bank of Oregon v. Indep. Ins. Agents of Am., 508 U.S. 439, 454 (1993) (Justice Souter, without dissent, changed the punctuation and meaning of a statute relating to the rights of national banks to write insurance, commenting: "a statute will typically heed the commands of its punctuation. But a purported plain-meaning analysis based only on punctuation is necessarily incomplete and runs the risk of distorting a statute's true meaning.").

While New Jersey's courts overlook hazy drafting precision, other courts are not so easily persuaded. Most recently in O'Connor v. Oakhurst Dairy, 851 F.3d 69, 70 (1st Cir. 2017), the court wrote:

For want of a comma, we have this case. It arises from a dispute between a Maine dairy company and its delivery drivers, and it concerns the scope of an exemption from Maine's overtime law. 26 M.R.S.A. § 664(3). Specifically, if that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform. And, in that event, the drivers would plainly fall within the exemption and thus outside the overtime law's protection. But, as it happens, there is no serial comma to be found in the exemption's list of activities, thus leading to this dispute over whether the drivers fall within the exemption from the overtime law or not.

Thus, the Oxford comma's absence changed the law!! See also, Morillo v. Torres, 222 N.J. 104, 120 (2015) (noting statute's omission of comma may alter its meaning); Weinacht v. Bd. of Chosen Freeholders of Bergen Cty., 3 N.J. 330, 335 (1949) (concluding bid specifications that listed categories of items, required combining last two items as one because they were not separated by a comma); In re Estate of Fisher, 443 N.J. Super. 180, 192 (App. Div. 2015) (reviewing statutory provision of "items in a list joined by a comma … with an 'or' preceding the last item, the items are disjunctive" making the three clauses distinct and separate from each other).

My caution to you is avoid undermining your intent when writing, and do your clients and the courts a favor. Accordingly, when distinguishing items in a list, choose critical clarity, avoid confusion, and include the Oxford comma!

Marie E. Lihotz is a retired Presiding Judge of the Appellate Division, who currently is Of Counsel to Archer & Greiner, P.C., Haddonfield, Princeton, Red Bank and Hackensack.