By Judge Mark P. Painter

A Panda goes into a bar. He orders a sandwich, eats it, then pulls a gun and shoots the bartender dead. He then starts out the door.

The manager says, “You can’t do that.”

The Panda replies, “I sure can — I’m a Panda — look it up.”

The manager consults a dictionary and, sure enough, finds this entry under Panda: “Furry mammal. Lives in Asia. Eats, shoots and leaves.”

Sometimes punctuation can be a matter of life and death. The bartender would have lived if the dictionary entry had been correctly punctuated as “Eats shoots and leaves.”

That punchline is the title of a book sweeping England, Lynne Truss’s Eats Shoots and Leaves: A Zero Tolerance Approach to Punctuation. It’s on the way to selling more than 500,000 copies and is the number-one bestselling nonfiction hardback in England!

Another example of the difference punctuation makes: A woman, without her man, is nothing. Contrast that with A woman: without her, man is nothing.

Truss begins the book by confessing a lifetime of frustration — being a stickler for correct punctuation. One example:

Everywhere one looks, there are signs of ignorance and indifference. What about the film Two Weeks Notice? Guaranteed to give sticklers a very nasty turn, that was — its posters slung along the sides of buses in letters four feet tall, with no apostrophe in sight. I remember, at the start of the Two Weeks Notice publicity campaign in the spring of 2003, emerging cheerfully from Victoria Station (was I whistling?) and stopping dead in my tracks with my fingers in my mouth. Where was the apostrophe? Surely there should be an apostrophe on the bus? If it were “one month’s notice” there would be an apostrophe (I reasoned); yes, and if it were “one week’s notice” there would be an apostrophe. Therefore “two weeks’ notice” requires an apostrophe! Buses that I should have caught sailed off up Buckingham Palace Road while I communed thus at length with my inner stickler, unable to move or, indeed, regain any sense of perspective.

As you can see, the book — which Truss was told not to bother writing because it would never sell — is written in a light-hearted vein. It’s (not its) fun to read, if a bit too cute at times. But it sets out the punctuation rules — the director’s notes to text. I highly recommend it.

Strangely, the book is not yet available in the states — though we certainly need it. Punctuation here is suffering. Just look at what I call the “wandering apostrophe.” In a local publication (I daren’t say newspaper) two weeks ago was an ad “Tuxedo’s on sale.” A law office plaque reads “Hanaford & Sons, Architect’s.” The apostrophes in those plurals dressed as possessives should have been given to Two Weeks Notice.

You can get the book now — I got mine through Amazon.uk. (and it arrived in two days). But you can wait awhile and save money. Penguin has purchased the U.S. rights and will publish here at the end of April.

You might ask: why the delay — couldn’t they just import some copies here and sell them right away? The problem is that much of the punctuation would be wrong here. Remember, in the U.S., periods (which the English call full stops) and commas always go inside quotation marks. In England, they only sometimes do. It was jarring for me to read a book about punctuation that seemed mispunctuated. But of course it was correct for across the pond. So the book has to be “Americanized” and reprinted.

When I railed about passive voice in The Legal Writer, I did not have yet have this example — the case of Coroles v. Sabey. The plaintiffs were thrown out of court for using passive voice!

Even though they had filed a 600-paragraph complaint, the plaintiffs made no claim. The complaint sounded mainly in fraud, and fraud must be pleaded “with particularity.” The Utah court, in upholding the trial court’s dismissal, stated:

Although not intended to be an exhaustive list, we point out two further deficiencies of the complaint. First, the section of the complaint that purports to describe the “material misrepresentations” that Defendants made to Plaintiffs falls short of doing so with particularity. For the most part, Plaintiffs use the passive voice in this section, failing to identify exactly who made the alleged misrepresentations. For example, Plaintiffs allege that they “were falsely told that professional golfers such as Fred Couples, Craig Stadler and Fuzzy Zoeller were substantial investors in Ganter USA.” Without any indication of who made this statement to them, however, we can hardly conclude that Plaintiffs have pleaded this allegation with particularity.2 (Footnotes and citations omitted.)

Passive voice takes the actor out of the sentence. It is often used to avoid responsibility, as in “an accident happened,” or “mistakes were made.” Using it in a complaint — where you are attempting to assign blame — is suicidal, as the plaintiffs in Coroles v. Sabey learned.

FOOTNOTES:

1 2003 UT App., 339, 79 P3.d, 974.

2 Id., 79 P.3d 974, 981.

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Mark Painter is a judge on the Ohio First District Court of Appeals and an Adjunct Professor at the University of Cincinnati College of Law. He is the author of five books, including The Legal Writer 2nd ed.: 40 Rules for the Art of Legal Writing. The book is available at Joseph-Beth Booksellers in Cincinnati and Cleveland, The Book Loft in Columbus, the Ohio Book Store in Cincinnati, Barnes & Noble in Cincinnati (Kenwood), and from Ohio Lawyers Weekly Books at http://books.lawyersweekly.com. Judge Painter has given dozens of seminars on legal writing. Contact him at jugpainter@aol.com, or through his website at www.judgepainter.org.