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.