Archive for September, 2012

Wear the jersey, dude

Hard on the heels of my recent revisitation of Lucy v. Zehmer, comes the news that Green Bay Packer quarterback Aaron Rodgers welched on a “deal” with R&B group Boyz II Men in connection with the Packers 2012 opening day NFL match up with the San Francisco 49ers at Lambeau Field.  The alleged deal?  Boyz II Men would sing the national anthem before the game if Aaron Rodgers agreed to wear a 49ers jersey in the event that the Packers lost.  And guess what?  Boyz II Men sang, the Packers slumped to a 30-22 defeat… but Rodgers is yet to don the red and gold.  A “joke between friends” that has been “blown out of all proportion” says Rodgers.  Sound familiar?

It surely looks like a contract to us reasonable football-watching folk, and, in that regard, I can do better than refer you to the tongue-in-cheek legal analysis of the matter over at the ContractsProf blog.

Back in the real world, it is hard to see how one goes about putting a value on performance of a promise to wear a football jersey on the happening of a contingent event (though no doubt someone somewhere would argue that the promise at the time Rodgers made it was worth to Boyz II Men whatever they would usually charge to sing a song to an NFL football crowd discounted for the contingency…).

But lest you think I am taking all of this celebrity nonsense a little too seriously, contract or not, for me, the legal latin maxim, “de minimis non curat lex” (the law is not concerned with trifles) applies with full force!

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There is a wealth of great material on the internet about the craft of transactional lawyering and the skills that young lawyers need.  One service that the Walters Way can provide is to help you distinguish the good from the not so good from the “do-not-touch-with-a-barge-pole” (or “do-not-touch-with-a-ten-foot-pole” as I believe you say here in the United States…).  So from time to time I will post about other blogs and resources that have particularly caught my eye.

To get us started, I warmly recommend these three blogs:

  1. theContractsGuy, a blog by Brian Rogers, a business attorney here in the MidWest.  Brian’s stuff is terrific because he combines posts about developments in the substantive law (with a particular focus on Illinois and Missouri) with insights into business law practice and real life drafting of contracts.  For a taster, take a look at Brian’s recent post, “Contracts Quiz: Is This Email Settlement Binding?” and the comments that it generated.  I hope that my 1Ls will immediately recognize that the hypo Brian discusses (derived from a real case in Missouri) raises very similar issues to those that can arise in the context of letters of intent.
  2. Ken Adams’s the Koncise Drafter.  Ken is a renowned authority on the drafting of contracts with a strong commitment to the use of clear, comprehensible and concise language.  He has set up a business, Koncision, which generates automated contract templates for law firms and other organizations.  Aside from Ken’s blog, his book, A Manual of Style for Contract Drafting (ABA 2d ed., 2008) is a “must read” for would be transactional lawyers.  Ken also posted recently about an exchange he had with a young lawyer working in-house.  This really resonated with me as I remember feeling just like that young lawyer when I first started out all those years ago!  theContractsGuy also posted a great follow up to Ken’s post sharing his tips for young lawyers.
  3. Michelle Hynes’s Leagleeaglemhm Blawg.  Michelle has a different focus from Brian and Ken.  She’s a Scot, based in Glasgow, who recently switched to a law career having worked for several years in marketing and running her own small businesses.  She has a particular interest in law, business and technology – an interest that I know a number of my students share.  As she has just started her job as a practicing attorney (what we Brits call a “trainee solicitor”) she is well placed to provide insights into legal practice from the perspective of a new lawyer!

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Lucy v Zehmer revisited

Two guys sit down in a bar in Virginia one evening, just before Christmas 1952. They share a few drinks. Quite a few drinks, or so we are led to believe. One guy (Hardy Zehmer) owns a farm that the other (William Lucy) has tried to buy from him before. Their conversation turns once more to the farm… and the events that subsequently unfolded on that December evening would become part of American legal folklore…

The case that arose from this seemingly mundane social interaction, Lucy v. Zehmer, 84 S.E.2d 516 (1954), is a terrific teaching case: a great story that provides wannabe lawyers with lessons on several levels.

Lucy claimed that Zehmer had agreed to sell him the farm while they were down drinking at the bar. He sought specific performance of the agreement. Lucy could point to a proverbial “smoking gun”. Zehmer had written on a bar check the words, “[w]e hereby agree to sell to W.O. Lucy the Ferguson Farm complete for $50,000, title satisfactory to buyer” and he and his co-defendant wife had both signed the writing. The language could not have been clearer. It left nothing open to negotiation. On its face, it manifested the Zehmers’ unequivocal present commitment to sell the farm.

The Zehmers main line of defence was that the whole thing was a joke gone wrong. Hardy Zehmer had never intended to sell and had said as much to his wife when, out of earshot of Lucy, he had got her to sign the “agreement”. His testimony was colourful. He didn’t believe that Lucy could raise $50,000 and so the “agreement” had been nothing more than an attempt to call Lucy’s bluff. “I was as high as a Georgia Pine”, he said, and the “agreement”… well that was “just a bunch of two doggoned drunks bluffing to see who could talk the biggest and say the most.”

So the issue the court had to decide was whether there was an enforceable agreement even though, as far as one party was concerned, he had never intended to enter into an enforceable agreement.

As my students now know, the Lucy v. Zehmer court ruled that the parties had entered into an enforceable agreement. In so doing, the court adopted what is sometimes referred to as the “objective theory” of contractual intent. If a reasonable observer would conclude from what you say and do that you intend to enter into an agreement, then what’s going on inside your head is irrelevant.

For me, the big learning points from Lucy v. Zehmer are: (i) the critical and pervasive importance of language and context in the law; and (ii) how skillful lawyers can manipulate language and context in practical ways that can affect real world outcomes. If you don’t intend to be bound, use less committing language (in the UK simply writing the phrase “subject to formal contract” at the top of the bar check would have done the trick). If you want to win at trial – though I emphasize repeatedly to students that cases that go to trial and end up in law reports are a drop in the ocean – you need to tell a story that will persuade the court to draw the inferences that are most favourable to your client’s case. This year my students seemed to grasp that the concept of the “reasonable observer” raises some interesting philosophical questions. Who is this reasonable observer? Was he or she in the bar? What characteristics and attributes does he or she possess? Hopefully, they also grasped that, for practical purposes, the “reasonable observer” is the tribunal of fact (the trial court, the jury) and the game is to persuade the fact finder that “our” version of the story – the version that best dictates a legal outcome favourable to our client – is the one that should stick.

There’s little doubt that Zehmer had a pretty good story. His story was that drunks just don’t do major real estate deals in bars. But the court wasn’t convinced. The court bought a different story. And that story was that Lucy and Zehmer weren’t so drunk that they couldn’t get down to serious business…and, that if you sign a piece of paper saying in clear language that you agree to something, you shouldn’t be too surprised if other folk (the folk we refer to as “reasonable observers”) believe that you weren’t joking and meant what you said.

There are other stories that could have been told in Lucy v. Zehmer as a recent article in the Duke Law Journal co-authored by Barak D. Richman and Dennis Schmelzer superbly illustrates. Richman and Schmelzer write about a wider context that is invisible to those of us that have only read the account provided by the Virginia Supreme Court of Appeals. For Richman and Schmelzer, the deal in Lucy v. Zehmer was part of a series of aggressive and predatory land grabs by middlemen seeking to acquire timber reserves for southern Virginia’s thriving pulp and paper industry. Those of my students who worry about whether $50,000 was a fair price for the Ferguson farm may be onto something if Richman and Schmelzer are to be believed. But as I say in class – and I underscore again now – the court was happy that $50,000 was a fair price. And for us as lawyers, what counts is predicting what courts will do, and influencing what courts will do, by the way we tell the story.

Finally, here is yet another retelling of Lucy v. Zehmer. In this version, instead of getting drunk together, Messrs Lucy and Zehmer get high on a brand of marijuana, known as “the Georgia Pine”, with hilarious results…

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(Hat tip to Paul L. Caron at TaxProf Blog)

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In his 1990s TV show, the British comedian, Harry Enfield, used to portray a character known affectionately as Mr You-Don’t-Want-To-Do-It-Like-That. The Wikipedia entry for Harry Enfield’s Television Programme accurately records that this character was an “infuriating know-it-all father” who would proffer advice (usually unrequested) to whomsoever he encountered.  Wikipedia also accurately records that the character’s catchphrases were “Only me!” (used when encountering other people) and “Now I do not believe you wanted to do that, did you?” (used whenever his interference ended up having catastrophic consequences for his fellow man, as it often did).

Being the proud father of a twelve year old “digital native,” I am on the end of my fair share of “Harry Enfield” moments… as, once again, she prises the iPhone from my grasp – “No Dad, you don’t want to do it like that…”

I had another such moment in the first week of Fall Semester while teaching a 1L Contracts class.  I was trying to flick between a powerpoint in “slideshow” mode and something I wanted to demonstrate via the Google Chrome browser on the internet.  And there’s me thinking I’m doing rather well.  I manage to work out in mid-sentence that if I right click in powerpoint there’s a menu that allows me to click “switch programme”.  I couldn’t help noticing that a handful of the digital natives in the audience were looking distinctly unimpressed and becoming somewhat restless. And I could have sworn I heard a small chorus of Harry Enfields telling me that, just possibly, I didn’t want to be doing it like that…

Academic year 2012-13: Things I learned from my students  #1 – “you don’t want to right click like that Professor, you want to press ALT TAB on the keyboard simultaneously”…

Guess what?  They’re right.  And the computer doesn’t explode.

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After 17 years on the faculty at Nottingham Trent University, my hometown institution in the UK, I joined the faculty at the Chicago-Kent College of Law in July 2011 becoming the first Ralph L. Brill Professor of Law.  To mark my arrival as the first holder of the Brill Chair, named for Professor Ralph Brill, a faculty member who had just completed his fiftieth year of service at Chicago-Kent, a ceremony was held on Tuesday 13th September 2011 during which I took the opportunity to speak about my own personal mission as a legal educator.

An edited version of my remarks on that occasion appears here… (more…)

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