Thinking Like a Contract Litigator

• Author: Franklin G. Snyder, Mark Edwin Burge
• Pages: 13-34

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UNIT 2: THINKING LIKE A CONTRACT LITIGATOR 13

Unit 2

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INTRODUCTION TO CONTRACT LAW

Part Two

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Thinking Like a Contract Litigator

FOCUS OF THIS UNIT

In the previous unit, we considered an agreement from the perspective of a

forward-thinking transactional lawyer, seeking to understand what the agreement

means and what its legal implications are. Transactional lawyers don’t work in a legal

vacuum, however. Even the newest contract is affected by the legal environment in

which it comes into existence. A twenty-first century practitioner of American

contract law must, accordingly, consider that which has come before—cases, statutes,

and even the brooding presence of centuries-old English common law. The underlying

analytical skills for both a litigator and a transactional lawyer necessarily have a

great deal of overlap. Both are working in an environment of pre-existing law.

Looking Backwards. As our ultimate goal is for you to be a well-rounded

lawyer, we will now undertake the task set out in this unit—evaluating a transaction

after the fact. The Surrogate Parenting Agreement from the previous unit did indeed

end up in a lawsuit. Two opinions resulting from that litigation follow in this unit

and will be instructive to us in understanding the basic issues and outline of the law

of contracts. While transactional lawyers are generally forward-looking in their focus,

we mustn’t lose sight of the fact that thinking about the future requires a solid

understanding in what came before. The traditional law school case method of

instruction, whatever its faults may be, excels in training lawyers to deconstruct the

past.

Just Enough Procedure to Be Dangerous. We think that your Civil Procedure

professor is a better source of information about civil procedure than we are.

Nonetheless, we’ll make some occasional brief diversions into civil procedure when

we think it helpful to your understanding of how courts are grappling with matters

of contract law (which is a far more interesting subject, in our unbiased opinion).

1

Here is one such diversion.

1

Don’t tell your Civil Procedure professor we said that. We don’t want to cause trouble unless

we have a really good reason to do so. An old lawyer’s maxim is “Never offend anyone unintentionally.”

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14 CHAPTER I: INTRODUCTION TO CONTRACT LAW

The two court opinions that follow arise from the agreement we considered in

the previous unit. The first opinion is from a trial-level court that considered evidence

presented by the parties in a bench trial. When we imagine a trial, we usually

envision a judge who resolves questions of law while an empaneled jury deliberates

and decides disputed facts. In a bench trial, the judge fills both roles and no jury is

involved. In this trial court opinion, the judge heard testimony from fact witnesses

with personal knowledge of the case—such as the parties to the agreement—as well

as from expert witnesses, like psychologists who could opine on matters calling for

expertise outside of the law. After the parties have presented their cases in a bench

trial, a judge will typically report findings of fact (resolving factual issues) and

conclusions of law (resolving legal issues). Based on those findings and conclusions,

a court will render its final judgment. While the parties may file various post-trial

motions, the final judgment is the point at which parties unhappy with the trial court

decision are able to appeal based on alleged error by the lower court.

The second court opinion in this unit is the appeal of the trial court’s decision

in the first opinion. Most cases you read in law school are appellate opinions, and the

second opinion is one of these, a decision by the New Jersey Supreme Court. As an

appellate court, a state supreme court has no ability to engage in its own fact finding.

In a sense, the higher court (much like the parties, for that matter) is stuck with the

factual determinations by the lower court. An appellate court can, however, fully

review the conclusions of law and the methods by which the trial court reached its

factual conclusions.

As you read these two opinions arising from the same trial and same dispute

by the parties, consider the legal bases by which the courts reach their decisions. We

especially want you to focus on the role of contract law in the two opinions, including

the role that contract law plays in relation to other bodies of law, such as family law

and criminal law. Because trial court opinions are less common in law school, we have

taken the liberty of adding a few box annotations to help you through it. For the

appellate opinion, however, you are on your own. Good luck!

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