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Get to the Point

The $4.85 Million Comma

By Theda C. Snyder

Modifiers can come before (premodifiers) or after (postmodifiers) the item being described. If you want to sound lawyerly — and make sure nobody knows what you are talking about — you could also call these prepositives and postpositives.

He turned the page quickly.

He quickly turned the page.

put the modifier first

In the example above, the adverb “quickly” modifies the verb “turn.” Adjectives usually precede nouns, but not always, as in “everyone present agreed.”

It gets a lot more complicated when a modifying phrase pertains to a series of items.

As this post is written, an appeal is pending in the 11th Circuit that turns on whether a postmodifier pertains to the entire series or only the last item. The argument is whether a comma would make a difference.

Four million, eight hundred fifty thousand dollars is at stake.

It’s About Language in an Insurance Policy

Constantin provided auditing services to ECB USA, which appears to be a food distributor and not a financial institution. ECB sued for professional negligence. Chubb, Constantin’s professional liability insurer, declined coverage on the ground that the services provided were not covered within the policy’s definition of management consulting services. Constantin consented to a $4,850,000 judgment and assigned its rights against Chubb to ECB.

The policy defined covered management consulting services as:

Services directed toward expertise in banking finance, accounting, risk and systems analysis, design and implementation, asset recovery and strategy planning for financial institutions.

The dispositive issue came down to whether the phrase “for financial institutions” applied to all the enumerated types of services or only to asset recovery and strategy planning. ECB argued that controlling law mandates that a qualifier applies only to the last item unless separated by a comma. Auditing comes within accounting. Therefore, Constantin’s services were covered.

In other words, ECB argued that for the definition to apply only to financial institutions, it should have read:

Services directed toward expertise in banking finance, accounting, risk and systems analysis, design and implementation, asset recovery and strategy planning, for financial institutions.

The district court ruled that the phrase “for financial institutions” modified the entire series.

What About the Oxford Comma?

According to “Plain English for Lawyers,” “When a sentence contains three or more items joined with one conjunction, put a comma after each word except the last.”

Style guides differ about whether to add a comma before the last item in a series. “Garner’s Modern English Usage,” the “Chicago Manual of Style,” the “MLA Style Manual” and “Oxford Style Manual” (no surprise there) say to insert it. Journalists and communications professionals abide by the AP Stylebook, which does not use the Oxford comma.

No authority directs a writer to place a comma after the last item in a series.

The “last antecedent rule,” which Brian Garner calls the Last-Antecedent Canon, outlines how to resolve postmodifier ambiguities. In the absence of an apparent contrary intention, those qualifiers refer solely to the last antecedent. Accordingly, ECB argued, the qualifier applied only to the last antecedent because there was no comma after it.

There are actually at least three approaches to solving this ambiguity. Garner’s Canon has been criticized and is not really about commas. 

The Lesson: Put the Modifier First

Why trigger litigation when better drafting can avoid these problems? When a modifier pertains to a series, placing the modifier at the beginning is usually clearer.

Here’s one way the defined term at issue could have been written:

Management consulting services is defined to include the following services provided to financial institutions: services directed toward expertise in banking finance, accounting, risk and systems analysis, design and implementation, asset recovery, and strategy planning.

How would you have drafted the policy’s defined term?

Get to the Point

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Teddy Snyder Theda C. Snyder

Theda “Teddy” Snyder mediates civil disputes, workers’ compensation and insurance coverage cases, including COVID-19 related coverage disputes, in person or by video. Teddy has practiced in a variety of settings and frequently speaks and writes about settlements and the business of law. She was a Fellow of the College of Law Practice Management and is the author of four ABA books, including “Women Rainmakers’ Best Marketing Tips, 4th Edition” as well as “Personal Injury Case Evaluation” available on Based in Los Angeles, Teddy can be found at and on Twitter @SnyderMediation.

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