Breach of contract

AuthorEvan Schaeffer
Pages479-588
BREACH OF CONTRACT
9-1
CHAPTER 9
BREACH OF CONTRACT
I. THE BREACH OF CONTRACT CAUSE OF ACTION
A. Theories of Recovery
§9:01 Overview
§9:02 Plaintiff’s Cause of Action
§9:03 Existence of a Valid Contract
§9:04 Offer and Acceptance
§9:05 Consideration
§9:06 Competent Parties
§9:07 Legal Purpose
§9:08 Breach and Remedies
§9:09 Damages
§9:10 Practice Tip: If You Plan to Use a Video Deposition at Trial, Use Lots of Exhibits
B. Defenses to a Contract Action
§9:20 Overview
§9:21 Mistake
§9:22 Fraud
§9:23 Duress
§9:24 Undue Inf‌luence
§9:25 Illegality
§9:26 Frustration of Purpose
§9:27 Impossibility of Performance
§9:28 Practice Tip: Depositions as the Reverse of Cross-Examination
II. THE DISCOVERY PLAN
A. Sequence and Timing
§9:40 The Written Discovery
§9:41 Requests for Admissions
§9:42 Practice Tip: The Restatement (Second) of Contracts
§9:43 Depositions of Corporate Representatives
§9:44 Other Depositions
§9:45 Opinions of Defendant’s Experts
§9:46 Practice Tip: Research Prior to a Deposition
B. Documents and Exhibits
§9:50 Liability Documents
§9:51 Damage Documents
C. Typical Deponents
§9:60 Overview
§9:61 The Plaintiff’s Liability Witnesses
BREACH OF CONTRACT
Deposition Checklists and Strategies 9-2
§9:62 The Plaintiff’s Damage Witnesses
§9:63 Practice Tip: Incivility Never Pays
§9:64 The Defendant’s Experts
§9:65 Depositions the Defendant Will Take
§9:66 Practice Tip: Another Reason to Videotape a Deposition
III. SAMPLE DEPOSITION: DEFENDANT IN A BREACH OF CONTRACT CASE
A. Setting the Stage
§9:70 Overview
§9:71 Timing
§9:72 Practice Tip: Documents Before Depositions
B. Goals, Strategies, and Preparation
§9:80 Deposition Goals
§9:81 Deposition Preparation
§9:82 Deposition Exhibits
C. The Deposition Outline
1. Background Facts and Thumbnail Outline
§9:90 Background Facts
§9:91 Thumbnail Outline/Deposition Checklist
2. Preliminary Questions
§9:100 Standard Introductory Questions
§9:101 Practice Tip: Deposition Organization
§9:102 The Witness’s Background: Education
§9:103 Practice Tip: Knowing the Law that Controls the Case
§9:104 The Witness’s Background: Work History
§9:105 Practice Tip: Verifying Details of the Witness’s Background
§9:106 The Witness’s Preparation for the Deposition
§9:107 Practice Tip: Responding to the Answer “I don’t know.”
3. Background About Defendant’s Car Dealership
§9:110 Financial Statements Required by Auto Companies
§9:111 More Background Regarding the “Adjusted Financial Statement”
§9:111.1 Practice Tip: Don’t Be Afraid to Ask Diff‌icult Questions
§9:112 Further Questions About Write-Downs
§9:113 Bookkeeping by the Dealership
§9:114 The Dealership’s Prof‌its Before the Sale
§9:115 Practice Tip: Sizing Up the Witness
4. The Transaction at Issue in the Case
§9:120 Basic Background About the Transaction
§9:121 Practice Tip: Persistence Pays
§9:122 Further Conversations About the Sale
§9:123 Seller’s Obligations
§9:124 Practice Tip: Fireworks? Save It for the End of the Deposition
§9:125 Whether Seller’s Obligations Were Breached
§9:126 Exhibits Related to the Transaction
§9:127 Figuring Adjustments
§9:127.1 Practice Tip: Asking Questions a Second Time
§9:128 Figuring Adjustments: Used Cars
§9:129 Purpose of Year-End Adjustments
§9:129.1 Practice Tip: Agreeing to Breaks Suggested by Opposing Counsel
§9:130 Real Estate Involved in the Deal
§9:131 Financial Statements: Recording New Car Sales
§9:132 Preparation of Financial Materials Provided to Buyer
§9:133 The Seller’s Obligations: Due Diligence
§9:134 More About Write-Downs and Adjustments
BREACH OF CONTRACT
9-3 Breach of Contract
§9:135 More About Prof‌its
§9:136 Practice Tip: Taking Your Time
5. Further Exploration of Seller’s Defenses
§9:140 Other Anticipated Defenses
§9:141 The Dealership Following the Sale
6. Admissions
§9:150 Information Critical to the Sale of a Car Dealership
7. Other Witnesses
§9:160 Other Conversations With the Buyers About the Sale
§9:161 Other Witnesses: Defendant’s Bookkeeper
§9:162 Practice Tip: When the Witness Gets Impatient
§9:163 Witnesses at the Defendant ’s Banks
§9:164 Other Witnesses: Family Members
8. Closing
§9:170 Concluding Questions
IV. SAMPLE DEPOSITION: DEFENDANT’S ACCOUNTING EXPERT IN A BREACH OF CONTRACT CASE
A. Setting the Stage
§9:180 Overview
§9:181 Timing
§9:182 Practice Tip: Expert Designations
B. Goals, Strategies, and Preparation
§9:190 Deposition Goals
§9:191 Deposition Preparation
§9:192 Deposition Exhibits
§9:193 Practice Tip: Courtesy, Not Combat
C. The Deposition Outline
1. Background and Thumbnail Outline
§9:200 Background Facts
§9:201 Thumbnail Outline/Deposition Checklist
2. Preliminary Questions
§9:210 Standard Introductory Questions
§9:211 Past Deposition and Trial Testimony
3. The Expert’s File Materials and CV
§9:220 Identif ying the Expert’s File Materials
§9:221 Identifying the Expert’s File Materials, Part 2
§9:222 The Expert’s CV
§9:223 Practice Tip: How Opponents Might Try to Obstruct Your Deposition
4. The Expert’s Background
§9:230 The Expert’s Educational Background
§9:231 Practice Tip: Investigate the CV Before the Deposition
§9:232 The Expert’s Work History
§9:233 The Expert’s Current Job
5. Past Work as an Expert
§9:240 Consulting Work as an Expert
§9:241 Income From Work as an Expert
§9:241.1 Practice Tip: Deposition Dispute? It’s Essential to Know Your Judge
§9:242 Past Work for the Opposing Lawyer
§9:243 Practice Tip: Persistence Pays Off
6. Work on the Present Case
§9:250 What the Expert Is Charging
§9:251 When and How Was the Expert Retained
§9:251.1 Practice Tip: Ask “ Why?”
§9:252 Over view of the Expert’s Work on the Case
§9:253 Cross-Reference: Practice Tips From the Products-Liability Chapter

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