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Have no fear, hyphens are here

By Ian Lewenstein   
ian@capyourpenconsulting.com

Lawyers, whether or not by their own admission, aren’t the best punctuators. True, this lawyerly difficulty extends to other professionals. But because drafting and editing sit at the core of a lawyer’s work, proper punctuation skills are a must. If lawyers better understand and use punctuation, they will reap great dividends through clarity, persuasiveness, and overall readability in their work. Furthermore, some punctuation marks (such as the comma) engender mountains of litigation, so proper punctuation skills can minimize legal risk.

Perhaps the most polarizing punctuation mark—the hyphen—functions as a great example of how a lawyer’s punctuation habits can serve the reader or, alternatively, inhibit the reader’s understanding.

But first, an ode to punctuation generally.

Punctuation was once frowned on, but no more

Lawyers’ propensity to dismiss punctuation traces to 17th-century England, where punctuation was primarily used for rhythmical and elocutionary purposes,1 not for syntactic functions, in which punctuation structures the sentence and guides meaning. In addition to its limited purposes, punctuation was relegated to scribes, who each had different training and preferences.2 Scribes—and later engrossing clerks in the U.S.—were responsible for punctuating, while legislators voted orally on bills and had no need to “see” punctuation marks.3

Yet if a legislator today opined punctuation to be trivial, the legislator would have to be living under a rock like Patrick the starfish from SpongeBob SquarePants. Only a sea creature living under a rock would be caught unaware that punctuation—for some time now—has been seen by the courts as a permissible indicator of meaning.4 Although courts (consisting of lawyers) have “hedged their bets on punctuation,”5 they still have given punctuation its due and examined it when interpreting legal documents; thus poor punctuation can confuse and serve to heighten legal ambiguity.

Generally, courts treat punctuation as a part of their legal analysis, not as a definitive answer to ambiguous and vague drafting. So if five factors support one conclusion and contradict a sixth factor of punctuation, a court won’t (or shouldn’t) automatically defer to punctuation usage to support a different conclusion—in fact, the Supreme Court followed this holistic-analysis principle in a 1993 case involving errant quotation marks.6 The Court held that a 1916 statutory provision had not been repealed despite missing quotation marks surrounding legislative language.

But occasionally punctuation, or its omission, can generate a legal surprise, as was the case in O’Connor v. Oakhurst Dairy,7 in which a missing serial comma resulted in Oakhurst Dairy owing dairy-truck drivers about $10 million for overtime back pay (they later settled for $5 million). Although other factors such as a nonparallel list supported the ruling, the omitted serial comma was the main attraction.

Because Oakhurst showed how a tiny mark can engender such legal havoc, one wonders why lawyers—and writers generally—neglect to take out an insurance policy by always using a serial comma instead of guessing when it’s safe to omit it.

Punctuating for clarity

In addition to functioning as legal insurance, punctuation guides the reader by (1) providing signposts for when to stop, start, and pause; (2) indicating where to draw logical connections; and, crucially, (3) helping the reader easily find, understand, and use the presented information. 

Try reading this Minnesota constitutional provision without punctuation:

In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the county or district wherein the crime shall have been committed which county or district shall have been previously ascertained by law In all prosecutions of crimes defined by law as felonies the accused has the right to a jury of 12 members In all other criminal prosecutions the legislature may provide for the number of jurors provided that a jury have at least six members The accused shall enjoy the right to be informed of the nature and cause of the accusation to be confronted with the witnesses against him to have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel in his defense.8

Kind of difficult, no? Tough to read. Confusing. Garbled. Now let’s add punctuation back in (including some left out of the original):

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the county or district wherein the crime shall have been committed, which county or district shall have been previously ascertained by law. In all prosecutions of crimes defined by law as felonies, the accused has the right to a jury of 12 members. In all other criminal prosecutions, the legislature may provide for the number of jurors, provided that a jury have at least six members. The accused shall enjoy the right to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel in his defense.

Although the constitutional provision is not a paragon of writing excellence, the punctuation at least helps the reader, well, read; that’s because it makes up for the loss of verbal cues that we gain from speaking. And readers expect punctuation, as aptly stated by David Mellinkoff, a strident critic of incoherent legal writing:

“Judges and lawyers and everyone else are accustomed to reading punctuated writing. If you don’t punctuate, a reader will do it for you, in places you never wanted. Sense can be reversed by punctuation or the lack of it...”9

Don’t hyperventilate, hyphenate

So because proper punctuation is important for legal reasons, clarity, and reader expectations, let’s have the hyphen talk. A multiuse punctuation mark, a hyphen serves many purposes: In fractions and two-word numbers, for dividing elements at the end of a line, in proper names, for accentuating syllables, etc.10 But the hyphen function that strikes up so much debate and discord is that of the phrasal adjective.

A phrasal adjective, or compound modifier, combines various parts of speech together as a cohesive unit that modifies a noun. For example, in hyphen-happy editor, hyphen (noun) and happy (adjective) join to modify editor (noun). The editor is hyphen happy (hooray!). Other variations include but are not limited to:

  • number + noun (five-page filing);
  • ordinal number + noun (1st-degree murder);
  • adjective + noun (high-quality brief); and
  • adjective + participle (nervous-looking defendant).

The emotional dispute on hyphens stems from phrasal adjectives that writers may not think are needed for clarity or to prevent ambiguity. So, for example, is there a chance that the orange juice salesman has bad sunburn and is selling juice, not necessarily orange juice? Or how about if you’ve had a bad hair day: a day of bad hair, or a bad day of hair? Yes, these are comical examples, but hyphenating phrasal adjectives here and in similar phrases (high-school teacher, assisted-living facility, etc.) would save readers from pausing or possibly misinterpreting. 

If a reader starts to slow down, more likely that the reader will get confused, become frustrated, and, ultimately, stop reading. Like the serial comma, the hyphen is a low-cost insurance policy for preventing ambiguity and reader revolt.

And hyphenating phrasal adjectives is more common than you think. For example, publications such as the New Yorker¸ Economist, Atlantic, and the Wall Street Journal all hyphenate their phrasal adjectives. They do so because hyphenating allows the reader to read faster and easier. Hyphens also prevent miscues. Instead of trying to do the impossible and predict miscues, these publications reduce their editors’ stress levels when questioning “should we or shouldn’t we hyphenate” by following a constant rule.

As the foremost defender of hyphens, Bryan Garner notes that a flat rule is better than a case-by-case decision because “almost all sentences with unhyphenated phrasal adjectives will be misread by someone.”11

The courts consist of hyphen-happy justices

Specific to the legal profession, hyphenated phrasal adjectives are prominently featured in both Minnesota courts and the U.S. Supreme Court. The courts not only look to punctuation as a permissible indicator of meaning but also seem to appreciate what a well-hyphenated phrasal adjective can accomplish for readability and clarity in their own writing. The following examples are taken from Minnesota courts and the Supreme Court:

  • judicial-bias issue
  • temporary-injunction motion
  • contested-case hearing
  • black-letter rule
  • free-speech rights
  • state-action question
  • felon-in-possession-of-a-firearm statute (nice!)
  • dual-sovereignty doctrine
  • common-law rights
  • founding-era understanding
  • run-of-the-mill felon-in-possession charges
  • public-policy exception
  • subject-matter jurisdiction
  • ineffective-assistance-of-counsel claim.

And look to the lawyer’s dictionary, Black’s Law. Many of its entries consist of hyphenated phrasal adjectives: excessive-liability damages, prosecution-history estoppel, no-fault divorce, and many more.

Common arguments against hyphens—and the rebuttals

The arguments against hyphenating phrasal adjectives are feeble. Here are the most common arguments against and the rebuttals:


1.  Against: I don’t like how the hyphen looks.

Rebuttal: I don’t like how the semicolon looks, but it’s a useful punctuation mark. Subjective preferences for “looks” shouldn’t govern clarity and punctuation usage.


2.  Against: I’ve determined that no one will find any ambiguity.

Rebuttal: Unless you are omniscient or the Oracle of Delphi, it’s impossible for you alone to determine ambiguity. Better to stick to Garner’s flat rule and not a subjective—and at times hairpulling—case-by-case decision.


3.  Against: They aren’t necessary for readability.

Rebuttal: They are, actually. Many writers fall into the dreaded habit of noun stacking, in which multiple nouns are stacked on top of each other. But hyphens can make noun stacking more readable: Compare “peace officer discipline grievance arbitrations” to “peace-officer discipline-grievance arbitrations.” The hyphens make the noun stacking readable and clarify what is modifying what. Although noun stacking should be minimized, sometimes we can’t rewrite because it’s impractical or too clunky.


4. Against: Hyphenating could lead to ambiguity and change meaning.

Rebuttal: Yes, it can. That’s why we should carefully and consistently hyphenate. Additionally, there are no Minnesota or federal cases that I can find in which an added hyphen single-handedly changed a legal result.12 But for readability, one court wrote that it was hyphenating risk-adjustment program because the missing hyphen had “the effect of making difficult-to-read materials even more difficult, as the reader has to sort through each such set of words to ascertain which words are modifiers and what words they modify.”13

Overall, lawyers can’t be guaranteed that a court will properly interpret every punctuation mark, including hyphens. But lawyers can also never be sure that a court will interpret their arguments and writing as they want them to. This constant doesn’t preclude proper hyphenation.

When not to hyphenate

Hyphenation standards concern not just when to hyphenate, but when not to hyphenate as well. For phrasal adjectives, we don’t generally hyphenate when the phrasal adjective occurs after the noun: “The court wasn’t hyphen happy.” Or “The brief was well written.”

Don’t hyphenate the phrasal adjective if it is a non-English phrase such as de novo review. And if the phrasal adjective includes an ly adverb, no need to hyphenate phrases such as extremely convincing evidence or the habitually hyphenating attorney. The ly adverb modifies the adjective and also provides a visual clue that the adverb is separate.

For more on when not to hyphenate, including rules on money, prefixes, and proper nouns, consult the Chicago Manual of Style.

Hyphens aren’t ornaments

The best rebuttal to hyphen skeptics rests with the great H.W. Fowler, who said that the hyphen “is not an ornament but an aid to being understood.”14 If your duty as a lawyer is to best represent your client, why not use every available tool when advocating? Don’t present a chance for your writing to be misinterpreted or misapplied. Be clear, accurate, and concise. And use hyphens as you would any other punctuation mark: to guide your reader, ensure clarity, and guarantee reader bliss. 


IAN LEWENSTEIN has worked for the Minnesota Legislature in the Office of the Revisor of Statutes and for several state agencies, helping write clear regulations in plain language. He serves on the board of the Center for Plain Language and has a master’s degree from the University of Chicago and a paralegal certificate from Hamline University.




Notes

1 Richard Wydick, Should Lawyers Punctuate?, 1 Scribes Journal of Legal Writing 14-15 (1990). Wydick also notes that lawyers’ distrust of punctuation extended to the U.S.

2 Id. 16.

3 Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 161 (2012).

4 Punctuation canon, Black’s Law Dictionary (10th ed. 2014).

5 Michèle M. Asprey, Plain Language for Lawyers 108 (3rd ed. 2003).

6 U.S. Nat’l Bank of Oregon v. Indep. Ins. Agents of America, Inc., 113 S. Ct. 2173 (1993).

7 O’Connor v. Oakhurst Dairy, 851 F.3d 69 (1st Cir. 2017).

8 Minn. Const. art. I, §6.

9 David Mellinkoff, Legal Writing: Sense and Nonsense 57 (1982).

10 Chicago Manual of Style 396 (17th ed. 2017).

11 Bryan A. Garner, Garner’s Modern English Usage 692 (4th ed. 2016).

12 A rare example comes from Adamov v. PricewaterhouseCoopers LLP, 2018 WL 6421286 (C.D. Cal. 12/6/2018), in which a plaintiff alleged that he worked overtime and that the company had violated California labor laws. The plaintiff attempted to argue that the phrase first year associate referred to a period spent working instead of a category of a specific group of associates (first-year associate).

13 Minuteman Health, Inc. v. U.S. Dept’t of Health and Human Services, 291 F. Supp.3d 174, 214 n.1 (D. Mass. 1/30/2018).

14 H.W. Fowler, A Dictionary of Modern English Usage 255 (Sir Ernest Gowers ed., 2nd ed. 1965).

 


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