Breach of Contract

• Author: T. Evan Schaeffer
• Pages: 573-659

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

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

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

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

§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

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

DISCOVERY COLLECTION 9-2

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

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

§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 CA SE

A. Setting the Stage

§9:180 Overview

§9:181 Timing

§9:182 Practice Tip: Expert Designations

9-3 BREACH OF CONTRACT

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 Identifying 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 Overview of the Expert’s Work on the Case

§9:253 Cross-Reference: Practice Tips From the Products-Liability Chapter

§9:254 Communication With Lawyers About the Case

§9:255 Communication With Others About the Case

§9:256 Practice Tip: Take Your Expert to the Deposition

§9:257 Preparation for the Deposition

7. The Expert’s Opinions

§9:270 Report Prepared by the Expert

§9:271 Practice Tip: Using Professional Jargon

§9:272 Process by Which the Report Was Prepared

§9:273 Opinions Contained in the Report

§9:274 Practice Tip: Opinions the Expert Does Not Plan to Give

§9:275 Opinions Not Contained in the Report

§9:276 Questions Regarding Opinion One

§9:277 Questions Regarding Opinion One, Continued

§9:277.1 Practice Tip: Walking the Expert Out on a Limb

§9:278 Additional Questions Regarding Opinion One

§9:279 Questions Regarding Opinion Two

§9:280 Practice Tip: Neutralizing the Expert

§9:281 Questions Regarding Opinion Three

§9:282 Questions Regarding Opinion Three, Continued

§9:283 Follow-Up Questions About the Expert’s Opinions

§9:284 Practice Tip: In a Deposition, Your Natural Curiosity Is an Ally

8. Testimony That Supports the Plaintiff’s Case

§9:290 Knowledge of and Disagreement With Other Experts

§9:291 Practice Tip: Get the Expert’s Assent to Undisputable Facts

9. Closing

§9:300 Closing Questions

V. SAMPLE DEPOSITION: PURCHASER OF A CAR DEALERSHIP IN A BREACH OF CONTRACT CASE

A. Setting the Stage

§9:310 Overview

§9:311 Timing

§9:312 Practice Tip: Distinguish Between Custom and Legal Requirements