Thinking Like a Contract Litigator

AuthorFranklin G. Snyder, Mark Edwin Burge
Unit 2
Part Two
Thinking Like a Contract Litigator
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 beforecases, 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 unitevaluating 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
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).
Here is one such diversion.
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.”
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 casesuch as the parties to the agreementas 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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