CONTRACTS - 101

By Stockton

A contract (or K) is a promise enforceable at law. That means that if someone breaks their promise, you can take them to court.

Not all promises are enforceable at law. For instance, the following does not create a promise enforceable at law.

Her: Honey, does this dress make my ass look fat?

You: No.

Her: You promise?

You: Yes.

A breach of that promise (the dress does indeed make her ass look fat) is not enforceable. It is not enforceable for three reasons; 1) No consideration has been given by either party; 2) At early common law, almost all judges were men; and 3) She has no remedy except to diet (that is, you cannot make her ass look less fat in the dress).

A valid contract requires:

1- Mutual assent;
2- Consideration;
3- A Piece of Paper;
4- A Pen;
5- Two or more parties;
6- Reasonably specific terms.

Mutual Assent

The parties must be agreeing to the same thing. If one person is agreeing to buy "yellowcake" from Niger and Niger is agreeing to sell Rice Crispy Treats, there is no mutual assent.

Consideration

Each party must have something of value on the line, whether time or money.

Piece of Paper, Pen and Two Parties

Most contracts should be in writing, so have paper and pens readily available. You cannot enter into a contract with yourself, so round-up another warm body if your just dying to go out contracting.

Contracts for political assassination and mob hits should never, ever be put in writing. The very suggestion is considered bad form. In these situations, never make the other party 'nervous' or 'jumpy'.

Further, illegal contracts are never enforceable, so make all you want. However, be forewarned, if you hire someone to 'off' your Contracts professor and that person does not perform, no remedy is available.

Reasonably Precise Terms

The terms of any contract must be reasonably precise. Not every detail need be memorialized but the major ones should be set forth for there to be a valid contract. Agreeing to sell the "watcha-ma-callit" for "a couple two-tree hunrid C' notes" to "what's-his-face" is probably not precise enough to be a valid agreement.*

*You may nevertheless want to go forward with the deal to avoid orthopedic surgery

The Statute of Frauds

Not all contracts need to be in writing. However, some contracts must be in writing, hence the Statute of Frauds. The Statute of Frauds requires certain contracts be reduced to writing, including;

1- Contracts for the sale of real property;
2- Fraudulent Contracts for the sale of real property the 'owner' doesn't really own.

A Wide Variety of Contracts

There are many types of contracts; quasi-contracts, contracts implied in law and contracts implied in fact. These contracts are typically found when a 'real' contract is absent but the judge is so disgusted with one of the parties that he wants to screw them over for being such assholes.

Court created contracts are my favorite type of contract because they are designed to stick-it to really cheap, sleazy bastards. Example:

A is a residential home painter who has a contract to paint B's house. A accidentally goes to C's house which needs a really bad paint job. A begins work believing that he is painting B's house. C, a real piece of shit, knows A is mistaken and doesn't say anything but only snickers. C allows A to paint his house and then denies him fair compensation. A is distressed because he doesn't know the other letters in C's name and believes he's out of luck.

In that example, the Court will tell C to pay up and to reveal the other letters in his name. There was no true contract but the court will apply equitable principles because C is a scum-bag.

That's about all you need to know about contracts for now.

Practice Tip #1 Another Perspective

By Tweed

Stockton and I could not have more different practices: he defends lawyers, architects and engineers from paying their fair share of the damage and misery they cause, while I negotiate lucrative business deals for them to make them richer (enabling them to continue to cause misery). And the legal markets in which we practice are vastly different: he works in a mid-size metropolitan area and most of his clients reside or exist within New York State, while my clients come from all over the country and world.

Despite these differences, Stockton's Practice Tip #1 applies with equal force to my practice - though for different reasons. I rarely negotiate deals against the same lawyer twice - it happens, but rarely. Nonetheless, I'm extremely conscious of how I'm perceived by my opponent; does he/she respect my analytical skills, am I treated with respect, does my new briefcase make my ass look fat. I want him or her to know that we can work together. There are times when client needs require me to be obtuse, mean or hard. But these times are few and far between.

Transactional work is tough. It is document intensive, detail oriented and extremely intense. Different styles of lawyer (I'm not talking about decorum here) can make transactional work even more tense. Time is almost always scarce, and timing is dictated by your client's business needs - real or ficticious. Days go by when I cannot download pornography. Yes, it's that bad.

A good working relationship with opposing counsel is essential to a smooth deal. Without it, you're in for a few weeks of torture (and not the good kind).

Sometimes, the lawyers play the bad guys. Unfortunately, lots of lawyers think that that is their job. More than anything, these folks just make a difficult process more of a pain in the ass. Simple points are turned into deal breakers and the client's interests get forgotten as the lawyers bicker.

The key to being a zealot advocate for your client, while making sure that the deal process does not kill you, is to not get too caught up in the process, which is intense and nearly all consuming. Always be able to take a step back and keep your, and your client's, perspective.

That's where a good mentor makes all the difference.

Transactional work is not something that anyone is immediately good at. It takes experience and understanding how business deals are negotiated and closed.

A good mentor will teach you how to work with opposing counsel while still being an advocate for your client. If your mentor is hot, that's an added bonus.

You will have hell days as a transactional lawyer - eleventh hour requests for something that will take 20 hours; your client changing the deal on you, etc. And there are appropriate times to lay into opposing counsel. But when you get that itch, make sure you're helping your client's position and not merely blowing off some steam. A lawyer should never tie his or her ego to the client's ultimate goals. They just might be incompatible.

Practice Tip - #1

By Stockton

Don't make your life more miserable than need be.

As a practicing attorney your feelings about the law will vary greatly from day to day. One day, you'll be filled with utter despair, the next, bitter hopelessness. Don't make your life more difficult than it has to be. There are little things you can do to help yourself.

I am a litigator. The population in the three or four surrounding counties is approximately 800,000+ people. If you open up the phone book there seems to be about 750,000 attorneys. This is misleading. I can't speak to other areas of practice but the litigation community is quite small. Six or seven firms (mine included) handle most of the tort defense work. There are three or four major plaintiffs attorneys and a healthy smattering of general practitioners that dabble in personal injury. It does not take long to gain a reputation, good or bad.

I speak not about a reputation for competence, but professional courtesy, which is the subject of Practice Tip #1.

My business is primarily done on paper; discovery, motions etc. I work within time frames for responding to demands and motions. When an adversary calls for an extension of time, I SAY YES, and so should you. You do not want a reputation as a hard ass; hard asses make life unnecessarily difficult for those around them and eventually for themselves.

Yes, you should be tough and competitive, but I am talking about something different. I speak to the day-to-day management of the reams of paper that flow out of, and into, your and other lawyer's (and their staff's) office. Don't be a prick if an adversary wants an extra two weeks to reply to discovery demands that you won't even get around to reviewing for three weeks.

Thus, we come to a tip I learned from a wise old adversary who made a fortune as a plaintiffs attorney and was later elevated to the bench. "Never use a law book when you can use a phone book."

Translation: Many intra-litigation issues can be resolved via a conversation rather than motion practice. If they can't, they can't; but judges and colleagues will soon come to find you a reasonable attorney who does not unnecessarily bombard opposing counsel and the courts with motions before even trying to work it out with the adversary. Picking up the phone can save you time and save the client money. Everyone will be happy.

Everyone is busy; lawyers, secretaries, judges, law clerks and claims representatives. You can make your life a bit easier by being reasonable and professional when an adversary calls for extra time or a favor. I don't even have to ask for more time from some adversaries. The cover letters I receive from these professionals usually reads: "If you need more time, let me know." It takes the pressure off.

Like everything else in law, there are exceptions to this general rule. An adversary may forget a date and fail to submit something. This omission could result in a dismissal of his or her case. If you can't agree to an extension, just say so. In many cases, the judge will not want to dismiss a case on anything other than the merits, and your adversary will probably receive an extension of time from the judge. Then you can say, "I can't stipulate to this but I won't vigorously oppose it." If the omission by the adversary is fatal to his case, then you have to swoop in for the kill. Also, if an attorney has been utterly obnoxious all through the litigation, especially towards you or your client, then go for the jugular. If he's been unbearably obnoxious with you, he's done it to others and no one really cares about extending him courtesies. Plus, it feels good.

I practice in an area where litigation is still a gentlemen/ladies game. If you will be practicing in an area where everything is a battle, where lawyers rarely meet the same adversary or judge twice, these tips may not help you. If you practice in a small or medium size market I think you'll find this tip useful as you progress through your career.

This may sound like mere commonsense. It is. Therefore it is doubly important to reinforce this rule in newer attorneys. Newer attorneys sometimes mistake being obnoxious for being tough. They sometimes get caught up in time-consuming fights that will have absolutely no impact on the ultimate resolution of the matter. Make your life easier and pick up that phone book before you draft that motion.

TORTS

Tort is Latin for "You fucked up". Torts can be broken down into two categories: civil wrongs and French pastries. We are concerned with the former.

Civil wrongs can be broken down into sub categories such as:

1) Negligence;
2) Intentional Torts;
3) Strict Liability;
4) Peach Newtons (which may also be a criminal offense).

We'll begin with negligence. The elements of a cause of action sounding in negligence are:

1) Duty
2) Breach of Duty
3) Proximate Cause
4) Injury
5) Damages
6) Settlement Check (always make sure it's divisible by 3)

Negligence is all about being careful. That's it. That's all you need to remember. Was the defendant careful enough when he plowed his car into the Plaintiff. Or, to be more accurate, would a reasonable person have plowed into the Plaintiff after blowing off a stop sign.

The reasonable person standard is the sine quo non of negligence and its greatest fiction. The law's reasonable person is very reasonable and very careful. Don't be surprised if you and your friends do not have the sensibilities of the law's reasonable person. In fact, Tweed successfully passed his torts classes using the George Costanza method - determining what he thought the law's reasonable person might do, and then using the opposite to answer questions.

Recent research indicates that the law's reasonable person would look something like one of the Easter Island statues. Others speculate that the law's reasonable person would look exactly the opposite of a composite of Ariel Sharon and Yasir Arafat.

Regardless, Stockton & Tweed suggest that if you ever come across the law's reasonable person, either kidnap him or her for your torts examine, or run shrieking.

Duty and Foreseeability

For some reason, law students get quite confused about these concepts. It may have to do with the atrocious writing that often graces judicial opinions. Duty and foreseeability are important concepts in negligence. Always remember, Duty is almost always a legal question. That is, for the judge to determine. Foreseeability is all wrapped up in determining whether an act is reasonable, a question for the jury.

If there is no legal duty, there can be no negligence. It does not matter how foreseeable an injury might be. Without a legal duty, you're off the hook.

Intentional Torts

Intentional Torts include assault, battery, false imprisonment, false arrest, all the really fun stuff.

This is where it gets tricky. In New York, the Statute of Limitations for negligence is three (3) years, with some exceptions. The Statute of Limitations for Intentional Torts is one (1) year. I'll assume most jurisdictions have a longer Statute of Limitations for negligence than for Intentional Torts. So, if you're going to commit a tortious act, say, against the asshole sitting next to you in Contracts, you have a decision to make. Go with the Intentional Tort when you punch him or feign a negligent act. This will all depend on how easy it will be for you to evade the Process Server. If you think you can get away with it, go with the negligent act. You'll have to lay low longer but there are generally no punitive damages. If it has to be an Intentional act, you'll only have to lay low for a year (+120 days, but that's another post). Also, try and avoid witnesses.