The Language of Lawyers, From “Jingle Mail” to “Benchslap”

by Ken Bresler
Massachusetts Lawyers Weekly, September 15, 2014

A legal dictionary has just recognized additions to the language of lawyers – and it’s not the new edition of Black’s Law Dictionary. The 2014 supplement to the Modern Dictionary for the Legal Profession contains an entry for “Romeo and Juliet Bill”: legislation “to spare teenagers and young adults who engaged in consensual sex from being branded as sex offenders….” It also defines “Swatting” as “[t]ricking a police dispatcher into sending an emergency response team….”

If the 2014 Supplement, more formally, the “Fourth Edition 2014 Cumulative Supplement,” reflects any single impact on the legal system, it’s probably the Great Recession’s damage to the real estate market. “Jingle Mail” is an “[i]nformal foreclosure technique in which the defaulting borrower (buyer) mails the keys to the property to the lender (seller or mortgage company).”

A “Zombie Title” is “[r]ight to ownership and possession of a home that remains with a person who believes he or she has lost the property to foreclosure.” Zombie titles arose when banks decided “it was not worth their while to complete foreclosures….Unsuspecting homeowners have had their wages garnished, credit destroyed, and…tax refunds seized.”

And the supplement contains an entry for a more familiar term, “Underwater,” which occurs “when a debtor owes more on a secured loan than the collateral…is worth.”

Professor Gerry W. Beyer of the School of Law at Texas Tech University edited the Fourth Edition and its recent supplement. W.S. Hein & Co. issued the 2014 supplement in August. Professor Beyer said that he “combed judicial opinions and the popular press to find new terms which attorneys need to understand.”

The supplement does more than define new legal terms, such as “Wet signature”: a “[s]ignature physically written on paper contrasted with a faxed or digital signature.” It alerts lawyers to the existence of new phenomena. They include the “Red Market,” the market “on which body parts and organs are bought, sold and traded,” and “Sleepover”: “Practice in which an election worker takes voting machines home” before an election “to protect them from tampering….”

Some definitions in the supplement are specific to lawyers. “Quotient Verdict” is the “[p]ractice of jurors determining damages by averaging the amounts each juror believes the plaintiff should recover….” A long entry defines the “Lodestar Method,” which is “used to determine what constitutes a reasonable attorney’s fee.”

The continuing influence on the law of Western culture, specifically the influence of Shakespeare and the Bible, is reflected in the definition of a “Romeo and Juliet Bill” and an updated entry for “Baby Moses Law.” The definition: “Also known as Safe-Haven law, it provides confidential and safe places for parents to relinquish newborn infants….” All 50 states have Baby Moses Laws, the supplement reports.

Islamic law, sometimes called sharia, earned a definition in the supplement, “Mahr,” the “Islamic religious custom in which a husband enters into a contract to give his wife a designated amount of money either at the time of their marriage or upon divorce.” Mahr is only the second Islamic legal practice defined by the Modern Dictionary for the Legal Profession. The first was “Fatwa,” in the Fourth Edition, published in 2008: an “Islamic religious edict that proclaims a death sentence on an individual.” (Beyer acknowledges the need to revise the definition.)

The 10th edition of Black’s Law Dictionary, edited by Bryan Garner, also appeared in 2014. Its 7,500 new entries comprise long-established terms, such as “rationale,” and new ones, such as “Benchslap: A judge’s sharp rebuke of counsel, a litigant, or perhaps another judge….”

Oliver Wendell Holmes Jr. wrote in 1899, “A word generally has several meanings, even in the dictionary. You have to consider the sentence in which it stands to decide which of those meanings it bears in the particular case, and very likely will see that it there has a shade of significance more refined than any given in the wordbook.”

Holmes may have been right. But judges do rely on dictionaries. Justice Scalia referred repeatedly to dictionaries in his contentious concurrence in NRLB v. Canning. The case concerns the Recess Appointments Clause; the U.S. Supreme Court issued it on June 26, 2014. Judges’ reliance on dictionaries means that legal lexicography really matters, cases can turn on what “wordbooks” say, and the writer of legal definitions may be powerful indeed – not as powerful as those who write statutes, but powerful nonetheless.