A Break from ‘Nits’ With Downton’s Legal Drama

With the coming Season 4 of “Downton Abby,” I've been reviewing the earlier seasons. The show has been characterized by many as a “Legal Drama” based on the first season's underlying legal dilemma concerning England's inheritance and estate law. But as the drama progresses, the series is rife with collateral circumstances that present legal questions.

To me, one of the most compelling in the first season was the miscarriage suffered by Lady Grantham, especially as it turned out that it would have been a boy, and solved the quandary for a male to inherit the title and estate.

Here’s how I see that episode if presented in the form an MBE question:

O’Brien works for Lady Grantham as a lady's maid and personal care assistant. One day, O’Brien eavesdropped on a conversation of Lady Grantham. O’Brien jumped to the erroneous conclusion that Lady Grantham was about to terminate O’Brien’s employment. O’Brien became angry and bitter at the possibility of such callous treatment after O’Brien's 10 years of loyal service to Lady Grantham. The next day, O’Brien was assisting Lady Grantham with Lady Grantham in her bath. Lady Grantham dropped the cake of soap outside the tub. The cake of soap broke in two. O’Brien retrieved one half and handed it to Lady Grantham in the bath, explaining, “The other half is under the tub.” As O’Brien said this, O’Brien intentionally and surreptitiously moved the second half of the soap with her foot to the side of the tub so that Lady Grantham might step on it and slip. O’Brien did this knowing Lady Grantham was four months pregnant. O’Brien left the room for other duties, but then had second thoughts and decided to alert Lady Grantham. However, just at that moment, on exiting the bath tub, Lady Grantham stepped on the soap cake, slipped, injured herself and suffered a miscarriage that killed the unborn fetus. The jurisdiction retains the common law.

What crime or crimes can O’Brien be prosecuted for?

No crime because O’Brian renounced her attempt when she changed her mind and turned to warn Lady Grantham and thus there was no concurrence between actus reus and mens rea.

Murder with Malice Aforethought for causing the death of the unborn fetus, because O’Brien intentionally moved the soap.

Depraved Heart Murder for causing the death of the unborn fetus, because O’Brien acted with wanton indifference to human life and a conscious disregard of the unreasonable risk of serious injury or death by moving the soap and increasing the risk Lady Grantham would slip on it.

Voluntary Manslaughter of the unborn fetus because O’Brien was genuinely outraged and in the heat of passion by the possibility of being fired by Lady Grantham after 10 years of loyal service.

Battery for injuring Lady Grantham; Misdemeanor Manslaughter of the unborn fetus because O’Brien had no intent to kill the fetus.

Battery for injuring Lady Grantham; no crime for causing the death of the fetus because at common law, no homicide was possible until a human being was “born alive.”

Any thoughts?

The fact pattern probably lends itself even better to an essay question either in crime or torts. The potential for O’Brien’s tort liability is considerable: Battery; Wrongful death of the unborn fetus (loss of consortium); negligent infliction of emotional distress; intentional infliction of emotional distress . . . what else?

Legalese: Who’s the -EE, and Who’s the -Or?

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

If I had a nickel — or a fraction-lower blood pressure — for every time I re-read a passage to sort out (again) who was the “mortgagor” and who was the “mortgagee” . . . .

Legalese has long proven an unnecessary barrier.

Hornbooks and scholarly law journal articles everywhere still insist on weighing down readers with annoying, often unnecessary legalese. This, in a discipline that pervades and affects the daily life of every person in society, and whose members should be able understand those legal principles by which they’re expected to govern themselves.

And it’s just as true in law school, bar review programs and of course the MBE.

I’m not referring to terms of art developed to communicate explicit legal concepts, but rather the chaff of legal language: The jargon.

As a longtime journalist, I am the first to promote economy of words, but not at the expense of clarity.

There is particular unhelpfulness in the unnecessary confusion that can be generated by words ending in “-ee” and “-or” in the labels referring to participants involved in the matter at hand. No doubt they were generated as a sort of short-hand among lawyers to more easily identify the parties, their relationship to each other and to the matter. But because most are not employed in common use, the more unusual can be confusing.

Here are a few:

Lessor / Lessee

Grantor / Grantee

Assignor / Assignee

Obligor / Obligee

Mortgagor / Mortgagee

Bailor / Bailee

Promisor / Promisee

Offeror / Offeree

These last two — “offeror” and “promisor” — have been common enough in popular use that they, at least, present little problem of clarity. Not so their passive counterparts of “promisee” and “offeree,” which are not so commonly used.

The first six terms, however, are on the opposite end of the use spectrum, having little to no common use and representing the embodiment of unnecessary legalese.

These terms are common in law and on the MBE. On one hand, economy of words is to be applauded in the timed, speed-reading environment of the MBE. On the other, the split seconds added by using common-use terminology to label these participants probably more than make up for the time otherwise wasted by the confusion generated by the legalese labels.

Short fact pattern MBE questions don’t present much of a problem even when they employ these labels. But the longer, half-column to column-long 400-word patterns weaving a complicated story of “mortgagors” and “mortgagees,” “assignors” and assignees” or “obligors” and “obligees” can be torturing. (They can also present pronunciation conundrums: Is that a hard or soft “g” in “obligee”?)

For the MBE taker and law students trying to absorb and recognize these uncommon terms, try to think of them in terms of the active and passive nature of the roles they’re trying to identify.

But even that is no guarantee: an argument could be made that “mortgagor”” and “mortgagee” could easily swap places in terms of their active and passive roles.

More broadly, lawyers everywhere, especially those writing hornbooks, law review articles and law test materials, should be encouraged to make a conscious effort to employ more commonly used terms, even if it generates a few more words.

What’s wrong with using “tenant” for “lessee” and “landlord” for “lessor” when referring to a real property situation? Or using “lender” instead of “mortgagee” once the transaction of a mortgage has been explained. (Oops! Did I mean “mortgagor”?)

When MBE takers read a 400 word contracts fact pattern and it seems like every other word is “assigned,” “assignment,” “assignee” or “assignor” it’s pretty easy to get confused and lose track of who made the assignment and who received the assignment (not to mention remembering at that point who is the “obligor” and “obligee”!)

There is no doubt that more clearly labeling participants — “X, who assigned . . .” and “Y, who received the assignment . . .” will add words to the fact pattern, and therefore take more time to read. But, in the MBE context, if it helps easily identify the participants’ roles in the action, it seems likely to more than make up for it by saving time, aggravation and mistakes in formulating an answer.

The purpose of language is communication, and assuming the purpose is to affirmatively convey information, clarity should be the core, guiding principal. It is for Messrs. Strunk & White: Browse “The Elements of Style” and take note of how often the guide expresses that objective.

But the language of law is often anything but clear, despite that possibly having been the original objective: providing precise descriptions and trying to leave no room for doubt. In its efforts to be painstakingly precise, uncommon words and use might be employed that actually cause confusion.

Every lawyer considers himself an accomplished writer, and yet, the use of legalese, unfortunately, abounds. This, despite attempts by the judiciary at large to promote plain, simple and clear language in memorandums, briefs, motions, instructions and every other document they’re forced to read. It’s disappointing that lawyers in general are not more rapidly embracing that concept in daily practice, let alone in law learning material.

Law is an arena that pervades every aspect of the man’s society, and it is vital that the principles be clearly communicated, easily understandable and accessible to everyone, even MBE takers, and not just to other lawyers.

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.

Gremlins in the Joint

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

In the language of law, the term “joint" can play gremlin to the unwary.

Another driver and the defendant were racing along a two-lane road. While the other driver tried to pass in the lane to the left of the center line, the plaintiff’s car came into view, heading directly at the driver’s vehicle. The driver lost control of his vehicle and collided with the plaintiff’s car. The defendant’s car, was not involved in the collision. The plaintiff brings suit against the defendant for damages suffered in the collision.

Which of the following would be the defendant’s best course of action?

A.    Seek dismissal of the claim, because the defendant did not cause the plaintiff’s damage.

B.    Seek indemnification from the other driver, if the plaintiff recovers a judgment against the defendant.

C.    Ask the court to limit his liability to one-half of the plaintiff’s damages.

D.    Seek contribution from the other driver, if the plaintiff recovers a judgment against the defendant.

Contribution or indemnification?

Two terms themselves that can play gremlin with tricky concepts each involving two or more tortfeasors — the notorious “joint tortfeasors” — and the apportionment of liability. The concepts of contribution and indemnification are easily confused and often mistakenly interchanged by the unwary, which is why they’re brought into play in this type of question.

Indemnity totally shifts liability in the interests of justice: where there’s a secondary tortfeasor perceived to be responsible as a matter of law rather being than the primary tortfeasor, who is responsible in fact. The classic illustration is vicarious liability, when an employer is sued for the torts committed by an employee during the course of employment. Though as a matter of law the employer is vicariously liable to the plaintiff for the damages to plaintiff, the employer is entitled to seek indemnification from the employee. The law prefers to ultimately sanction the party who was in fact at fault — the employee — by reimbursing the party that was not at actually fault, the employer.

Contribution, meanwhile, is the applicable concept for this question: two tortfeasors are each causes in fact and justice sees damages as apportionable in equal share, even where one tortfeasor may be more at fault than the other. The one who pays can seek contribution from the other.

Here the plaintiff brings suit against defendant even though it was the other driver’s car that in fact collided with plaintiff, and defendant’s own vehicle wasn’t involved in the collision. Both drivers were negligent by racing, jointly creating the unreasonable risk of harm to a foreseeable plaintiff that no ordinarily prudent person would create. The defendant is wholly liable under the concept of joint and several liability for the plaintiff’s indivisible injury. However, both tortfeasors were at fault. Indeed, it could be argued — not unreasonably — that driver was more at fault than defendant. But under joint and several liability either is liable to plaintiff for the entire injury, and in this case it was defendant who faced the music in court. But defendant, who has been made to compensate defendant for defendant's entire injury, is entitled to make driver face the music as well, by suing driver for contribution: driver, the joint tortfeasor, perceived by law as being liable for an equal share of damages recoverable by plaintiff. If three cars were racing, defendant could seek contribution from the other two racing drivers as joint tortfeasors.

The joints can be like gremlins assailing the unwary.

Meanwhile, on the property side of law, the term “joint” may also play gremlin.

The fact pattern begins: “A mother’s will left her farm to her son and daughter ‘jointly, as tenants in common.’”

You guessed it: The classic distractor — and incorrect — answer choice included reference to “the other joint tenant” and the consequent right of survivorship.

When two or more people receive a devise or conveyance of property together, the presumption is they take as tenants in common, and not as joint tenants. Tenants in common each have a share of ownership coupled with an undivided interest to the right of enjoyment in the whole. That share of each tenant in common is freely alienable — available to be sold or given away, or devised by will.

In order to create that near-magical status of “joint tenant” so that the property interest passes on death of one concurrent owner to another by operation of law, the devise, deed or gift must be explicit by using unequivocal terms on linguistic par with “joint tenants with right of survivorship.”

The language of law is full of terms that can play gremlin and muddle the unwary: they're everywhere, so watch out!

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.

Words Unsaid

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

In the following constitutional law question, the key was to spot the words or phrases left unsaid and force test takers to fill in those blanks.

Congress enacted a law requiring all civil service employees to retire at age 75, except when such employees are employed by the armed services. Civil service employees of the armed services are required to retire at age 65. An employee of the armed services just turned 65 years old. He files suit in the federal district court seeking a declaratory judgment that would prevent his employers from requiring him to retire before age 75.

The employee’s strongest argument in support that the statute’s provisions regarding civil service employees of the armed services are invalid is that this provision:

A.   Denies him the privileges and immunities of natural citizenship.

B.   Denies him a property right without just compensation.

C.   Is invidious discrimination on the basis of age in violation of the Fifth Amendment.

D.   Is not within the enumerated powers of Congress under Article I, Section 8.

Granted this is pretty much a no-brainer through process of elimination of A, B, and D.

What’s interesting is the language in the correct response C: “invidious discrimination.”

The 800-pound gorilla not mentioned by name in the fact pattern is “Due Process” and the derivative incorporated concept of “Equal Protection,” both applicable to the federal government through the Fifth Amendment’s Due Process clause.

I reckon that because the question was so easily disposed of by process of elimination, there was no reason to beat test takers over the head by using either of those phrases in the fact pattern or in explaining the basis of the employee’s suit.

On the positive side --- and making a pleasant change from the constant criticism of questions usually found in this blog --- the phrase “invidious discrimination” is so colorful that it’s bound to have resided prominently in students’ memory, even though there is only a case or two from the constitutional classroom that actually uses it.

My thanks to drafters here for throwing an occasional bone.

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.

How Is It Reasonable, Exactly? 
This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

The slipperiest term of legal language throughout the law, including law school and the MBE, is “reasonable.”

And yet it is the most common, oftenest-used benchmark in almost all areas of the law: “Reasonable person,” “reasonable care,” “unreasonable risk.”

Law students are told from Day 1 that “reasonable people can disagree” on this point or that, and so go to court to help resolve that through the help of a finder of fact and law. And it is that mystical ideal of the “reasonable person” that provides the basis for the standard of care one person owes to another in order to avoid negligence.

Yet, the term is subjective and meanings for “reasonable” are as numerous as there are people and their individual languages: What’s reasonable to CD is unreasonable to MB, and downright senseless (and hateful!) to WJB.

So where is the reason that so many MBE questions require a common understanding of that term “reasonable”?

Perhaps it’s the not-so-subtle psychological component: MBE takers must understand the benchmark of what is “commonly” accepted as “reasonable” either because they are, themselves, “reasonable” within what can be a rather small spectrum of meaning, or at least they have encountered it often enough in society at large to have an understanding of just how the mythical ideal “Reasonable Person” behaves.

But that is a supposition that has no basis in fact, and one that itself may be unreasonable. Consider this fact pattern:

A salesman was employed by a florist, who owned a retail shop adjacent to a large wholesale nursery. The owner of the nursery liked to use a brand-name artificial fertilizer for her plants, although other effective fertilizers were available at comparable prices. She stored a large quantity of the fertilizer in a heap on the nursery’s property, as did many other nursery owners without incident. The fertilizer gave off fumes that caused the salesman to suffer lung irritation. Occasionally, the salesman had to take off from work and seek medical attention. After losing a few hundred dollars in wages and amassing a few hundred dollars in medical expenses, the salesman sued the nursery owner for damages.

My first thought: If he only racked up a few hundred dollars in medical expenses, I sure would like to know the name of his doctor! My second was, what exactly are “ . . . nursery owners without incident?” (Ok, so that’s just a copy-editing “gotcha.”)

But seriously, this example has some issues. I call them problems, but the writers probably don’t.

What exactly is a “large quantity?” A pound or kilogram? 10 pounds? 100 pounds? 1 ton? 10 tons?

That kind of sloppy, vague language in the facts sets MBE takers for a fall right there, requiring a supposition, which they can only solve if their idea of “large quantity” happens to be the same as, or close to, that the of writer’s. Maybe it depends on how a “reasonable” person would define “large quantity.”

The pile of chemical fertilizers (“artificial” = “chemical”) gave off fumes. We are told the fertilizer gave off fumes that caused salesman’s lung condition, so therefore the fertilizer is toxic to humans.

Are we ready? The call of the question for the above fact pattern and answer choices are:

The court is likely to rule in favor of:

A. The salesman, because the nursery owner had equally effective fertilizers available at comparable prices to the fertilizer used.

B. The salesman, because the nursery owner is strictly liable for injuries caused by emissions from her property.

C. The nursery owner, because the selection of the fertilizer was reasonable and it was stored in a reasonable manner.

D. The nursery owner, because the salesman is merely an employee of the florist and does not own the property on which the shop is located.

Throw out A immediately as not being relevant to anything. D is fairly insidious by raising the intangible specter of nuisance. But that would not be the only basis for an action against nursery owner who plays with toxic chemicals in his neighbor’s backyard, so we can throw that one out, too.

So here’s where it gets unreasonable.

In law school, I learned there is strict liability for engaging in ultra-hazardous activities, such as transporting nuclear waste, explosive demolition work, and, yes, storing hazardous chemicals, especially in a residential or commercial area near lots of “foreseeable” victims. Ultra-hazardous “strict liability” activities are those that can’t really be made completely safe no matter what reasonable precautions are taken.

So I liked answer choice B.

Will it surprise to know the correct answer choice for this practice question was C?

“. . . the selection of the fertilizer was reasonable and it was stored in a reasonable manner.”

Excuse me?

Pray, where exactly is the “reasonableness” of storing a “large quantity” of fuming noxious chemicals “in a heap” on property located in a commercial zone crowded with employees and customers alike?

Call me timid, call me overly cautious, call me unreasonable, because that doesn’t really seem very reasonable to me. I think the “reasonable man,” who is the progenitor of the “ordinarily prudent person” that sets the standard for negligent behavior, should find storing a large quantity of fuming noxious chemicals openly in a heap on his commercial property in close proximity to others is inherently unreasonable.

Of course, readers are given the additional fact that other nursery owners also stored large quantities of fuming noxious chemicals openly on their commercial property and they never caused an injury. Lucky them!

Surely, this question did not intend to communicate that because a host of other people do something the same way, that makes it “reasonable.” 
(Go read “Extraordinary Popular Delusions and the Madness of Crowds” by Charles Mackay [http://books.google.com/books/about/Extraordinary_Popular_Delusions_and_the.html?id=tDn1nAEACAAJ])

OK, so what everyone else is doing might be a factor in what regular folks consider reasonable, but only a factor. Human beings and ordinarily prudent people are expected to be somewhat more thoughtful in their behavior than lemmings, even if all too often they are not.

I could go on, but I think the point has been made: I guess I just reasonably disagree with the writers on this one.

And if you do, too, it brings up something else to keep in mind in while completing your practice questions and during the MBE itself: There are going to be “correct” answers with which you have plenty of basis to reasonably disagree. So you are going to get those wrong, and you need to learn to live with that, as frustrating as it is. But don’t worry, because they won’t outnumber the ones you get right!

Another exam tip I’d like to point out is the repetition of the term “reasonable” in the correct answer choice. Be advised this is not a smoking gun or giveaway clue! In fact, it should send up a red flag for the test taker to reread the answer choice carefully in light of the fact pattern. The terms “reasonable” and “unreasonable” get thrown around a lot in MBE questions, and they are often inappropriately paired with other words and concepts to camouflage and distract. One unreasonably misplaced use of the term “reasonable” can often be very tempting, so be careful how you reason.

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.

3 Felonies & a Misdemeanor

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

This entry diverges from the standard Nit format of pointing out language tips and traps common on the MBE. This entry focuses on substantive issues and come from one of the major bar review courses from 2009.

Evidence: 3 Felonies & a Misdemeanor

The defendant is on trial for embezzlement. He does not take the stand. Which of the defendant’s previous convictions is most likely to be admitted into evidence against him?
A. A 7-year-old conviction for arson, a felony.
B. A 12-year-old conviction for embezzlement.
C. A 6-month-old conviction for disorderly conduct.
D. A 2-year-old conviction for felonious sexual assault.

It’s short, but it’s a killer: Keep in mind this is a notorious “most likely” question.

Convictions are usually used to impeach, but a defendant who doesn't take the stand is not open to impeachment. Test takers have to spot that critical point.

Once spotted, throw out all those impeachment-by-conviction-related rules covered in the FRE at 609, including the 10-year time limit, felony vs. misdemeanor, et al.

That leaves the introduction of crimes under relevancy, and specifically character evidence, covered in the FRE at 404. And as we all know, character evidence generally is not admissible for the purposes of proving action in conformity with that previous behavior.

FRE 404(b) prohibits evidence of other crimes to prove character and action in conformity with earlier criminal behavior. But — and of course there's a “but” — evidence of other crimes can be used for other purposes, such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.” (FRE 404(b))

So, who can think of a way that arson, sexual assault or disorderly conduct could substantiate motive, opportunity, intent, etc. with respect to the present embezzlement charge? Any postulation would likely present a pretty thin stretch.

That leaves answer choice B: A 12-year-old conviction for embezzlement. And that was the correct answer choice.

Remember on this question it’s the answer that’s “most likely.”
Let’s hope in a real world court room, a timely objection would be made to exclude under the rule that any relevant evidence may be excluded where its probative value is substantially outweighed by the risk of unfair prejudice. (FRE 403)

Admitting the 12-year-old conviction for embezzlement in a current trial for embezzlement would be tantamount to adopting the doctrine of “once a thief, always a thief,” and therefore constitutes blatant prejudice.

There’s already plenty of that kind of prejudice going around in society at large, but let’s hope legal officers keep it out of the courtroom.
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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.

Malapropisms Everywhere

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

“I think we agree, the past is over.”

“Justice ought to be fair.”

Two very memorable quotes from former President Georgia W. Bush on different occasions. These are examples of some of his more innocuous ones, in the course of a presidency notorious for his malapropisms.

Then there’s Sarah Palin, Joe Biden and Dan Quayle; and the list goes on.

Of course everyone makes the occasional language gaffe, or uses a term out of context from that to which the listeners are accustomed. In earlier postings, I’ve pointed out the fact that language really is as individual as each of us, and it’s a constant challenge to ensure there’s enough overlap among our languages that we can effectively communicate.

I was working in a newspaper newsroom in 2008-9 when the Tea Party movement burst into the headlines. Mostly, the editors noticed that movement’s eruption because they initially called themselves “Teabaggers.” 

They had apparently always intended to leverage reference to the Boston Tea Party to characterize their populist revolt against tax and spending, one of their signature issues, but alternative possible meanings seemed to have escaped their notice.

But to many segments of society, the term “teabagger” referenced an entirely different activity, that had nothing to do with a tax protest.

It was a prime example of how even “common language” can differ in meaning among different groups and in different contexts.

These days, it is even difficult to find a reference to that time, unless one happens to have been a member of the movement, or like myself, in the news media watching it unfold. After awareness of that gaffe surfaced: then zap! Rewind, revise and reinvent! I give the organizers credit, because in short order they had orchestrated one of the most effective media blitzes that all but eradicated that early gaffe.

I ran across an MBE practice question that reminded me of the “teabagger” affair. It even brought to mind one of Dan Quayle’s more memorable occasions: “Republicans understand the importance of bondage between a mother and child.” Ahem. (Well, I have lived in San Francisco!)

Here it is:

During a gang shootout in a city, a gangbanger looked for a rival among the combatants because he wanted to kill him. Believing a bystander to be the rival, the gangbanger shot at the bystander and missed. The bullet passed through a window and killed a homeowner who was asleep on her sofa.

[I hope everyone sees the “gangbanger” is guilty of attempted murder and murder.]

Maybe it’s my sordid past, and my sordid past  in journalism as well, or maybe I’ve just seen too many Jodie Foster movies, but I just immediately thought the crime of rape was also going to be on the . . . er . . . pinball machine, so to speak.

But nope.

I consulted a long-time police officer friend of mine: he said “gangbanger” is commonly accepted in law enforcement circles as being synonymous with “gang member.” (I was a bit nonplused that after a decades-long career in news media, that I had somehow missed that.)

Urban Dictionary

[http://www.urbandictionary.com/define.php?term=gangbanger]

and even Merrium Webster online

[http://www.merriam-webster.com/dictionary/gangbanger]

both concur with that.

Still, I think the editors here should have heard alarm bells go off and could have been a bit more thoughtful: I wasted 1.8 seconds looking for rape.

Substituting the less inflammatory, and less prurient, term “gang member” would not have affected the fact pattern and may have been just a tad more sensitive.

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.

License or Profit?

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

I agree with Mr. Emerson that “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.”

But when it comes to identifying and referring to legal principles, surely law students everywhere can agree that consistency of terms is not only not foolish, but vital to communicating accurately and effectively, not to mention success on the bar exam and the MBE.

A farmer asked his adjoining neighbor if he could build an irrigation ditch from the neighbor’s natural fresh-water spring to his property to provide water for his cattle. Because the spring supplied more than enough water to meet the neighbor’s needs, she agreed, provided that the farmer construct the ditch in such a manner that it would need the least maintenance possible, so that he did not need to continually enter her land. The farmer constructed a concrete irrigation ditch from the spring to the land at a cost of $25,000. The only maintenance required on the ditch was a semiannual cleaning. Three years later, the neighbor informed the farmer that her water needs had increased, and he could no longer take water from the spring. In addition, the neighbor did not allow the farmer onto her land to do the semiannual cleaning, resulting in the blocking of the ditch. The farmer wishes to keep water flowing through the irrigation ditch to his land.

Which of the following would be the farmer’s strongest argument?

A. The farmer owns a valid easement appurtenant to the neighbor’s property.

B. Because the neighbor has allowed the farmer to construct the irrigation ditch, the neighbor would be estopped from preventing the farmer from coming onto her land.

C. The farmer, although a licensee, has expended such a substantial sum of money in constructing the irrigation ditch that the neighbor may not terminate the farmer’s license now.

D. The farmer, although a licensee, may continue to enter the neighbor’s property to clean and maintain the ditch until he is able to acquire another source of water.

Note the italics that have been added to highlight the term “licensee” in choices C and D.

Use of that term seems to be confusing because there’s a permissive entry by farmer onto the land of neighbor for the purpose of taking something off. If left to that simple formulation, that sounds like the definition of a profit a prendre, or more simply called a profit.

Stoebuck and Whitman in their real property hornbook, the Third Edition of The Law of Property, state: “Profits allow some substance to be severed and removed.”

They further note that the removal of water not owned by the landowner is deemed an easement. That would fit into answer choice A.

Here, the water removed from a spring on the neighbor’s property is likely to be the neighbor’s property. So that seems to put it back into the category of a profit.

Except . . .

Except, one distinction between profit and license is that a profit, as an interest in land, is subject to the Statute of Frauds, while a license, as a mere privilege, isn’t. There are no facts as to that, and full performance removes the Statute of Frauds issue anyway. 

Another distinction is that a profit, as an interest in land is perpetual, terminated expressly by conditions in the writing, or by release from the profit holder; licenses are freely revocable (with some exceptions, of course).

It is said that the MBE is all about testing the fine-line distinctions and nuances in the law. But there are many areas of the law — this being one — where there just aren’t clear distinctions, either fine-line or bright-line.

Stoebuck and Whitman in their hornbook acknowledge the muddle in this area even as they incorporate a discussion of licenses made irrevocable by the licensee expending significant money or labor to make use of the license, and where the landowner should reasonably anticipate that expenditure by the licensee.

Basically, the authors seem to indicate that once a license is made irrevocable, it ceases to be a license and becomes something more: an actual interest in land in the form of a profit or an easement.

Therefore, the use of the term licensee is at best confusing and at worst misleading.

The answer key identifies C as the correct answer, apparently because of the farmer’s expenditure, duly anticipated (neighbor’s dictation of condition as to ditch construction) by the neighbor, to transform this into an irrevocable license. But that concept itself turns on a principle of estoppel.

So it seems that answer choice B is just as reasonable. It could be argued it might even be a more reasonable choice because it doesn’t attempt to name the interest as profit or license, which even as experts in this field acknowledge, is not so clear cut as to be easily testable on the MBE through a simplistic multiple choice question.

So the quandary is trying to find consistency of terms in a conceptual area so nebulous: consistency requires definitiveness, and definitiveness requires distinction. Where A could possibly equal C or B, or even A, consistency, Aristotle would have agreed, is simply not possible.

Given the amorphous nature of these concepts in the current law, acknowledged even by textbook authors, this topic needed to be saved for an essay.

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.

Individuals Separated by a Common Language

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

I’ll classify this real property question under “Tricky Diction,” but it could fit just as easily under “Confusion.”

A homeowner, just before going on an overseas trip, gave his brother a power of attorney to sell his house, which stated: “My brother is specifically empowered to sell and convey all or any part of the real property owned by me as of this date.” Several weeks later, the brother sold the homeowner’s house to a buyer and conveyed to her a customary deed containing convenants of title. A year later, when the homeowner returned from his trip, he was served with a complaint by the buyer, who was suing him for breach of covenant because it turned out that the homeowner’s ex-wife owns one-half interest of the house that the brother had sold on his behalf.

In this suit, the buyer should:

I added the italics, and before reviewing the answer choices, let me rant: What the heck is a “customary deed”?

I don’t know about other law school real property courses, but I was taught there are three types of deeds:

1. General Warranty Deed that includes all present and future covenants;
2. Special Warranty Deed that includes only present covenants;
3. Quitclaim Deed that is limited to whatever interest, if any, the grantor may have.

I did not ever learn about something called a “customary deed,” nor did I encounter that term in any of the cases that accompanied my real property course or bar review.

In the cosmic scheme of things, this illustrates an important aspect of the human condition: our vulnerability to the limitations of language as understood by each of us, and the fact that each of us really speaks our own individual language. Hopefully, that language is based on a common root language, and for the most part meanings among individual languages will overlap enough that so that we won’t blow ourselves up as a result of translation confusion — though wars, fisticuffs and verbal offence are common enough from simple language differences and misunderstandings.

Law, of course, depends on language, and understanding the inherent dangers of language limitations is one reason legal documents are so tediously detailed: they attempt to define all the terms so everyone understands the words to have one specific meaning in that specific context.

However, with respect to the MBE and test preparation, the translation confusion such as is presented in the above question is merely a means to muddle the test takers. Is this a serious, legitimate method of testing or is it just that somewhere, in some room, some formulator was having a bad day or is just normally sadistic and thought: “Let’s just rattle their cages by using nonstandard language in this subject area; some will panic and get it wrong.”

And yes, it gets more irritating, because here is the correct answer:

Not prevail, unless the power to “sell and convey” is construed to include the power to execute a usual form of deed used to convey real property.

Here we go again: intentional attempts to muddle our minds with meaningless doubletalk.

Each of the three type of deeds mentioned above ARE, as far as I know, a “usual form of deed,” depending on the circumstances and exactly what the grantor wants to convey. And by definition — assuming we all have the same or closely similar understanding of these words — “customary deed” is perforce a “usual form of deed.”

Also, prospective MBE takers are well acquainted with the negative form of answer, but it is still the most common device used to confuse. If your mind doesn’t automatically translate, and nagging doubts remain, then take the extra few seconds to rephrase into a positive, in this case: “Prevail because the power of the brother to sell and convey homeowner’s real property is valid.”

Too Simple

As long as we’re on real property, try this, though not really a nit:

A landowner gratuitously conveyed his interest in land to a friend by quitclaim deed. The friend promptly and properly recorded her deed. Six months later, the landowner conveyed his interest in the same land to an investor for $50,000 by warranty deed, which was promptly and properly recorded.

As between the friend and the investor, who has the superior right of title to the land?

A.   The friend, regardless of the type of recording statute.

B.   The friend, because she recorded prior to the investor recording.

C.   The investor, regardless of the type of recording statute.

D.   The investor, because it took by warranty deed rather than quitclaim deed.

If everyone is really “promptly and properly” with their quitclaim and warranty, respectively, who wins?

Correct choice: A. It harks back to a basic common law principle still often good law that first in time is first in right. But this is one of those answers where test takers might be tempted to think, “That’s so simple it must be wrong.” One had to remember that a properly recorded conveyance cannot be snatched away through use of recording statutes, and it makes no difference if the grantee was a donee or buyer. Recording provides notice and prevents anyone — in this case, the investor — from later becoming a bona fide purchaser for value or BFP.

One major clue here was that the fact pattern did not mention what type of recording statute, which by deduction indicates that was of no importance.

If the editor in me really wanted to pick nits: some sloppy construction that uses extraneous and unnecessary words, a strange use of a neuter pronoun, and an incorrect pronoun antecedent. But who’s keeping score?

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.

Alliteration Overdose

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

Alliteration Overdose

Obviously, I’m working my way through practice materials from 2009, and this one got under my skin. Maybe it’s just me.

A state’s commercial code provides, in part, that “the minimum price of cheese sold in this state shall be $2.50 per pound.”

As to which of the following persons would the state statute be most likely constitutionally applied?

a.     A resident of the state selling cheese in that state to a manufacturer of snack foods whose plant is located in a neighboring state.

b.    A resident of Canada selling cheese made in Canada to the citizens of the state.

c.     A resident of the state selling cheese to the Commissary at the United States Air Force Base in the state.

d.    A resident of the state selling cheese to the state Department of Education for its use in its school lunch program.

Now, I don’t know about you, but this question really discombobulated me. From the inarticulate call of the question — “… likely constitutionally…” — to the annoying alliteration overdose of “s,” this question just downright irritated me.

Of course, that made me want to get it right even more, but in a timed setting, such emotional responses run the risk of inducing test takers to spend too much time, overanalyzing and second-guessing themselves.

First, the call. Fortunately, this pattern is so short, it’s the exception to the rule and it’s really unnecessary to read the call first, because you’ll only be re-reading it in 15 seconds.

I struggled with the form: “most likely be constitutionally applied.” Maybe that's because students are taught — at least I was — to analyze from the opposite point of view: determine why it’s unconstitutional? So the reversal confused me. There goes a few precious seconds! 

“Which situations are unconstitutional?” is the question I asked myself to check off those circumstances and by process of elimination leave me with the sole remaining constitutional choice.

Remember, states cannot regulate interstate commerce, except where Congress has authorized them to do so, OR where Congress has not expressed an intention dominating a particular area of regulation AND where the state regulation in that area does not discriminate or unduly burden interstate commerce.

Let’s look at the answers and spot the tipoffs.

A.   State resident selling into a neighboring state. Tipoff: interstate commerce where a fixed price would be burdensome if higher than market price, even though the regulation, in applying to all cheese transactions, is nondiscriminatory.

B.   Foreigner selling cheese into the state. Tipoff: international commerce and that power exclusively belongs to Congress.

C.   State resident selling to the federal government. Tipoff: Nothing to do with interstate commerce — states simply cannot regulate the federal government.

And the winner is:

D.   State resident selling to state agency. Tipoff: intrastate and no apparent undue burden on interstate commerce.

Time to move on!

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.

Confusion Challenges Confidence                                                                                                               

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

Confusion Challenges Confidence

Here are a couple of types of MBEs I lump under the “Confusion and/or Supposition” category. Both come from a bar prep course of 2009.

One fact pattern concerns a contract for the sale of a fur coat. 

Upon delivery, a missing button prompts the buyer to reject the coat. The seller offers to have the button replaced at the earliest opportunity, the next regular work day. 

The call of the question asks for the buyer’s legal position. 

The salient point is that no matter how slight, this is an imperfect tender — a tender of nonconforming goods. So the test taker must resolve the perfect tender rule with the legal options available. 

The perfect tender rule allows a buyer to reject any nonconforming tender, even if, as here, the imperfection is not a material breach in the value of the contract goods. 

Complications to the perfect tender rule provide for allowing a seller to cure not just by time due for contract performance, but beyond that time, so long as the extension of time is within a reasonable time. What is a reasonable time extension is a contextual matter of the type and value of goods, among other factors.

The correct answer choice in this case states: “The customer may reject the coat, but she must give the salon owner an opportunity to cure.”

But the structure of this answer is inherently illogical, and therefore naturally confusing.

The concluding clause “she [buyer] must give the salon owner an opportunity to cure” logically implies that the buyer, in fact, has no immediate option to reject; rather she must provide the seller an opportunity to cure, and not just by the contractual time performance is due, but she must give seller a reasonable time beyond.

Law students have seen this often, where the rules of linguistic logic seem to muddle the principle: If the buyer must give the seller reasonable time to cure, then logically there is no immediate right for the buyer to reject the goods.

I, for one, would like to see the writers pay closer attention to their diction in both fact patterns and answer choices. Perhaps a better phrasing would have been to incorporate a qualifier, like “the customer may initially reject the goods . . . but also must give the seller time to cure.”

Try this example, also from the same bar prep course, and also another contracts fact pattern:

Farmer sent an “offer to sell to the bakery 100 bushels of wheat at $30 each.”

That was the “meat of the coconut” so to speak, and seems perfectly straightforward.

Yet, each of the answer choices introduces a novel aspect that somehow that offer was ambiguous. The reasoning in each of the answer choices presents new suppositions. In one answer choice, the farmer failed to state it was a single lot only. In another choice, “attempted formation is flawed by ambiguity so that the minds of the parties never met.” Yet another answer choice suggested that parol evidence is admissible on the question whether the offer contemplated sale of the wheat as a single lot or piecemeal.

This is not an uncommon ploy: The fact pattern is perfectly straightforward, yet new suppositions are insinuated into the answer choices, which, upon reading causes the test taker to doubt what he read to begin with.

We ask ourselves: “What did I miss?”

Basically, this style of question-answer format causes the test taker to question his own understanding of the fundamental principles involved.

This is an insidious format. It would be one thing if the language in the fact pattern had introduced some measure of ambiguity, such as “… offered to sell as many as 100 bushels” or “offered up to 100 bushels.” 

But to read a seemingly straightforward offer and then to have doubt thrust onto the test taker by the introduction of new suppositions in the answer choices is particularly confusing.

It’s a challenge not to let these types of questions chip away at one’s self-confidence. And that effect is cumulative. But self-confidence is a vital component of getting through the MBE: Be confident after having completed all the course work, and also, hopefully, either a third-party or comprehensive home-grown bar review course.

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.

Smoke & Mirrors

Smoke & Mirrors

Let’s try this sample questions from one of the bar review course practice exam material from 2009: the dreaded subject of real property:

Thirty years ago, a power company constructed a power dam on a river. At the time the dam was constructed, the power company solicited easements from all of the landowners in the river valley, including a farmer. The power company paid fair value for the easements, which would allow the company to release water from the dam at certain times of the year, resulting in flooding of the land in the river valley.

In the 30 years since the dam was constructed, the farmer’s property has never been flooded, and the farmer has been using his land in the same way as he did 30 years ago. Now, however, the power company wants to substantially increase power production from the dam. All landowners in the valley were notified by the company that henceforth all 200,000 acres (including the farmer’s 200 acres) would be flooded in accordance with the company’s easement. The farmer reviewed the easement for his property and discovered that it lacked the requisite grantor’s acknowledgment and thus was improperly recorded. The state’s adverse possession statute requires hostile occupation for a period of 20 years.

May the power company properly flood the farmer’s land under the terms of the easements?

This is a prime example of many different principles of MBE preparation. First, note the multitude of issues raised by the language of this fact pattern:

— “solicited easements”; raising the issue of easements in general.

— “paid fair value”; raising the notorious bonafide-purchaser-for-value (BFP) specter.

— “farmer . . . using his land in the same way as he did 30 years ago” and coupled with the later phrase “state’s adverse possession statute”; raising the issue of termination of easement by prescription.

— “Now . . . power company wants to substantially increase power production”; raising the issue of surcharging the easement.

— “farmer reviewed the easement . . . discovered that it lacked the requisite grantor’s acknowledgment and thus was improperly recorded”; raising both a possible conveyancing signature issue and the statutory recordation issue.

And those issues with corresponding language are used in the answer choices.

This question illustrates why MBE takers should always read the call of the question first, as advised by review courses for both MBE and essay questions. By reading the question first, takers are alerted to the specific issue(s) involved and better able to focus. 

Failing to read the call first, an astute reader gradually becomes overloaded as he registers each of those distinct issues that could possibly be involved in the correct answer. If the test taker reads the call first, that narrows the correct answer choice as he reads to involving the validity of the easement. So armed, after reading first that there exists easements, the taker moves beyond issue No. 1, and quickly sees issue No. 2 of BFP as simply a gratuitous distractor. The taker does have to consider issues Nos. 3 and 4: whether the farmer terminated the easement sufficiently by prescription. But those issues only need to be considered if issue No. 5 is resolved positively; that is, if the easement was validly created in the first place.

So issues 1 through 5 are “smoke.” The “mirrors” come in on issues No. 1 and No. 5: and they're not simple mirrors, but ones more likely comparable to those in carnival funhouse, where appearance is distorted. And here, there’s not much fun in the distortion.

The only issue that matters, as indicated by the call of the question, is issue No. 5: the legal validity of the easement. The facts specifically state that Power Company “solicited easements” and “paid fair value,” so presumably, straightforward express easements in gross were created. Easements are an interest in land, so express easements must comply with the statute of frauds and be in writing and signed by the person to be charged — in the case of easement, the holder of the servient estate. So, to be valid, the easement granted to Power Company by the Farmer would have had to be signed by the Farmer.

But it’s important to note the fact that the indication that each landowner signed their respective grant of easement is perforce a supposition. The facts don’t indicate it specifically, which they might have done simply with language like “the easements were all properly executed” or similar. Such language would have definitively indicated that each landowner had signed the easement conveyance. So readers in this case don’t know definitively, but are left to suppose that the easements were validly executed by including the signatures of the grantors. 

This is a common tactic in MBE practice questions: readers are required to “fill in the blanks” through supposition. Make the wrong supposition, or fail to make any supposition, and the reader will quite understandably be led astray into choosing the wrong answer.

So, in this case, here comes that “funhouse” mirror distoring the appearance of the circumstances, and placed just before the question call: “The farmer reviewed the easement for his property and discovered that it lacked the requisite grantor’s acknowledgment and thus was improperly recorded.”

Where does that come from? What does “requisite grantor’s acknowledgment” mean? My Real Property course didn’t include any lectures on that requirement of a “grantor’s acknowledgment,” and I don’t remember any cases from the course work using that language. Could it be that “grantor’s acknowledgment” is a synonym for “signature”? As a matter of logic, common use and tradition, a person’s signature in a transaction is of course an acknowledgment that an agreement was made; an acknowledgment of the meeting of the minds, so to speak.

Ack! Confused? That, I regret, is the point.

The distortion is meant to confuse meanings, make test takers second-guess themselves and wonder what the words really mean, if anything.

The only clue here is that end phrase “improperly recorded.” Is there a recordation issue here such that the easement grant might be invalidated? Conveyances of interests in land do not have to be recorded to be legally valid. Recordation becomes an issue only when a party seeks the protection of the recordation statutes to prevail in ownership. Because the recordation issue is raised as part of this inexplicable “acknowledgment” issue, and there is no recordation issue, I surmise that this is a convoluted distractor, which is presented as an alluring answer choice.

Leveraging the recordation non-issue to eliminate that as a distractor, leaves the reader with the determination that the “solicited easements” were in fact validly executed, with the all necessary signatures. Therefore, the easement granted by Farmer is legally valid (mere nonuse insufficient to terminate), and the Power Company has the right to use the easement according its terms. It’s the simplest answer, and in this case was the first presented. 

But all that smoke, let alone the mirrors, made this a rather challenging example.

Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.