« on: November 06, 2008, 09:35:17 PM »
I'd advise treating it like a tennis match.
P would argue X, D would counter by arguing Y. P would respond by noting X, but D would counter by stating Z. If there's not so many claims and responses, the approach should be, for K's, to (1) state the claim, and (2) state all the defenses to the claim. Different classes (and professors) may call for different strategies but it's more or less the same in every class--state what the respective parties would argue, and then state what you think the court would likely say. If there are elements, go through each one. There may not always be multiple elements, though.
Here's an example from a practice exam I did 1L year for K's:
Claim #1: Alberto v. Beryl for breach of assurances during negotiations
Alberto will assert a claim against Beryl for making countless promises during negotiations, and failing to honor them by not giving them the job or – at the least – not giving him the chance to negotiate for the job to completion. Beryl promised Alberto that, if given the job, Alberto would make more than he was making, and indicated that he’d get the position by discussing the matter with him to the extent that she did including her suggestion that “if an attorney could secure the regulatory approvals, he or she would have a position for life.” Because Beryl breached these assurances and Beryl relied on them by turning away new clients, hiring a nanny, and researching regulatory laws, Alberto will claim that promissory estoppel should force Beryl to pay reliance damages. See Hoffman v. Red Owl Stores.
Beryl will counter that there was no breach of assurances during negotiation because she never indicated that she would give Alberto the position and manifested any type of assent to be bound. However, since Alberto is arguing on the basis of promissory estoppel to force Beryl to honor her assurances during negotiations, whether she manifested any assent is not as important. However, since Alberto’s claim invokes reliance, it is important that 1) Beryl would have expected Alberto to rely and 2) injustice can only be avoided by the enforcement of the promise. Beryl will claim that neither of these preconditions are met because Alberto’s reliance was not really that great – he merely hired a nanny, did some research and turned away a few clients. Further, Beryl will claim that she, a reasonable person would not have expected one to rely to such an extent on such vague, empty promises (particularly when Beryl claimed “presidents don’t make final employment decisions in casinos.” Beryl’s argument in this regard is somewhat compelling because here – unlike Hoffman – the plaintiff was not actually told to take the steps that he did, but rather did so on his own volition based on his understanding of the circumstances.
Additionally, Beryl will counter that the assurances she made were not sufficiently definite to be enforced. She said, for example that he would make “more than he was making” and changed her mind over night over the extent of the commitment she needed – nothing was, at any point, set in stone. In order to be enforceable, the promise must be reasonably certain such that what a breach would be is clear and what an appropriate remedy for a breach is clear. See Varney v. Ditmars. However, when promissory estoppel is invoked courts are more flexible as to the definiteness of a contract and would likely nevertheless allow the contract to be enforced if they determined that the Alberto relied, did so reasonably as Beryl should have expected and injustice can be avoided only by enforcing the contract.
Alberto will seek reliance damages as he is seeking recovery on the basis of promissory estoppel. Reliance damages amount to the amount necessary to put Alberto in the position he would have been in had he never entered into the contract which equals the cost of the nanny, the research he did, and the clients he turned away. Beryl might counter that these damages should be limited because they were unforeseeable – she could not possibly have known that, due to her supposed assurances, Alberto would hire a nanny because he never indicated as much and it could not be reasonably expected. See Hadley v. Baxendale.
Claim #2: Alberto v. Beryl for breach of contract to offer 2 year employment or, in the alternative 1 year employment
Alberto will sue Beryl for breach of contract for promising to provide him with one year employment when she stated that “initial employment” of CFS’s offer was 1 year and assured Alberto that he’d be making more than he was making which he accepted by stating “I’m sold! Let’s settle the details in the morning.” This, as Alberto will argue, constituted an acceptance of Beryl’s offer to employ him for a year. Additionally, Alberto may claim that Beryl breached a contract by promising to hire him for two years by stating that they’d “need a two-year commitment from whomever it hires” to which Alberto accepted by stating this was fine.
Beryl will defend by noting that there is no breach because she did not assent to be bound. Contractual liability is voluntary. Accordingly, for a contract to be enforceable the promisor must assent to be bound by his or her promise. Beryl will argue that the purported promises were mere preliminary negotiations. Context is generally indicative of assent and courts use an objective standard by which to assess whether a party assented to be bound. Here, it is likely that a court would side with Beryl because she was continuously noncommittal throughout the process. She stated, for example that “if an attorney could secure regulatory approvals, ’he’ would have a position for life” and that the company would need a two year commitment from “whomever” it hires. Both statements stress the extent to which Beryl was talking in generalities and not making any specific offers to Alberto.
Further, Beryl might argue that the promises were not sufficiently definite as discussed under the heading of Claim #1. The argument is more compelling here, because ostensibly Alberto will be seeking expectation damages rather than reliance damages. Given that none of the contractual terms were clear, it is likely that a court would find the contract to be unenforceable just as in Varney where it was unclear what a “fair share of the profits” was.
Additionally, Beryl might claim that the statute of frauds bars enforcement of the promise because – at the very least – the second “offer” to employ for two years could not possibly be completed within a year. It is likely that the first offer could similarly not be completed within a year because it suggested that performance wouldn’t commence initially (N.B. the fact that it stipulated he could work for life if he did something a particular way is of no bearing because he could have died early). A promise in which one party could not possibly completely perform within exactly one year must be evidenced in writing to be enforceable. Alberto will claim that the promise is evidenced in writing by Beryl’s “call me about the job after 10:00 a.m. Beryl” napkin. This is a weak argument at best, because it does not relate to the contract in any way. Alberto may seek to ameliorate the statute of frauds by relying on promissory estoppel although only a minority of states allow the statute of frauds to be avoided in this sense. See Monarco v. LoGreco. If Alberto relies on promissory estoppel, he would – as above – have to seek reliance damages.
Alberto would seek expectation damages which would be the costs of whatever he was going to make (ostensibly, more than he was currently making) minus the costs he would have incurred subtracted by those he already incurred in doing the research, and hiring the nanny. Beryl would claim that some of the damages could have been avoided without undue burden, risk or humiliation because Alberto could have gotten another position which was in no way inferior. See Parker v. Twentieth Century-Fox. At the very least, he could have retained his other position and received the extra money he would have made however hard it would be to measure as discussed above.