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Elves and goblins and consumer transactions

A couple of months ago, Court of Appeals Judge Robert N. McDonald, in the concurring opinion in Ford v. Antwerpen Motorcars Ltd., did something we do not see often enough but helped give context to the court’s decision: He appended to the opinion the contract being interpreted. By simply attaching a few pages of contractual language, readers now see just how illegible fine the “fine print” really is and how confusing a contract could be to a consumer.

Interestingly, in the majority opinion, the arbitration clause at issue (ugh — see here for a few of my thoughts on pre-dispute arbitration clauses in consumer contracts) is set forth in clear, large-scale font. That said, I challenge the legal community to read the following:

Arbitration Clause

Is that important, dispute resolution language clear to you? Tellingly, McDonald begins his concurring opinion with an homage to Tolkien and the struggle between lawyers’ instincts for clear writing and hedging for clients’ sake.

“In fantasy literature devoted to the battle between good and evil, the allegiance of elves, orcs, dwarfs, and goblins is readily apparent,” McDonald writes. “In the battle between clarity and obfuscation in legal instruments, it is sometimes uncertain which side attorneys will take.”

Even where obfuscation is not the ultimate goal, it can be the end result. As lawyers strive for clarity, they often add definitions, cross-references and lengthy disclaimers and waivers that raise the level of complexity in everyday consumer contracts that serve not to inform but to discourage understanding.

In the Ford case, McDonald’s concurrence noted that “[t]his case turns on the drafting and placement of an arbitration agreement in one of several legal documents concerning the sale of a used car….The Majority opinion – a model of clarity itself – is able to navigate these documents. But a lay person interested in buying a used car would be well advised to bring along a lawyer, a magnifying glass, and perhaps an English major, to decipher their meaning.”

Depending on how you look at that passage, those who believe the law should not be applied in a vacuum and that the reality of modern life should be kept out of courtrooms could get a bit discouraged. Despite two of members of the highest court in Maryland subscribing to the idea that a Marylander interested in buying a used car might need counsel, magnification devices and a college-level student of literature in order to understand the terms of an agreement, the contract and its serious implications were enforced against the lay-person buyer.

The positive news for consumer advocates is that the concurrence provides building blocks of change. While ultimately upholding the lower court’s decision to compel arbitration in the sale of a used car, it offers some fuel to fire the engines of those interested in promoting justice and preserving important rights for individuals.

Perhaps the legislature and our attorney general should take a look at these issues to determine whether our state wants to promote a system in which everyday folks cannot decipher contracts that are offered on a take-it-or-leave it basis.

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