Contracts – Section B: Exam Instructions for Fall 2014

[The format and instructions for the final exam for the Fall 2014 edition of Contracts (Section B) will be substantially in the following form. The content of the exam will focus principally on the material discussed in Sections V and VI of the Syllabus. It is expected, however, that students will know and be able to use and apply the major contract law concepts and tools introduced and discussed throughout the course.]


Three (3) Hours, open book

This examination consists of [number] pages, including this page. Make sure that you have all [number] pages. If you do not, notify the proctor immediately.

This is a three-hour, open-book exam. You may use any books or materials you wish. You may not submit any prepared notes with your answer, and you may not discuss cases or sections of the UCC or the Restatement that were not on the Syllabus.

You will have one hour to read the exam and think about your answer, making rough notes if you wish. During that hour you may not write in your blue book or work on your computer. After that hour is over, you may begin outlining and/or writing your answer.

Your answer must consist of two parts.

In the first part, you will outline the legal issues you identify in the fact scenario (the “issue spotting outline”). Use complete sentences; for example, an issue involving mutual assent might be phrased as follows: “The defendant may argue that its promise is unenforceable because the defendant did not timely accept the plaintiff’s offer.” You should identify all legal issues that are reasonably presented by the facts. You should break major legal issues into related legal and factual sub-issues as much as you see you fit. If you have a factual question or note a factual ambiguity, you should note that explicitly and identify how further factual clarity would affect your issues outline. You should cite a case (briefly, just by name), Restatement or UCC section if that is necessary to make clear the legal basis for an issue you are raising, but there is no need to cite any cases, Restatement or UCC sections for basic propositions about contract law. Do not include any analysis of the issues you identify in the outline. The total number of points for this exam is 100; this issue spotting outline is worth 50 points.

When you are finished with your outline, you must choose one legal issue that you judge to be important to the advice you are asked to give in the problem. This legal issue may involve legal sub-issues. You must then analyze that issue in depth and write out and reach a final assessment of the strengths and weaknesses of your client’s legal position [or of the argument that you are asked to analyze] with respect to that issue only. Be sure to frame your assessment as a response to the question or questions posed in the fact scenario. You may, if you wish, explain or justify your choice of issue. In grading the exam, I will not assign points separately regarding the choice of a legal issue for this portion of your answer. However, the quality of your analysis will be assessed in part based on whether the legal issue that you choose is important to analysis of the fact scenario taken as a whole. Your analysis is worth 50 points.

In the event that you change your mind about what issue to write about after you begin your analysis, do not change issues. Instead, you should explain at the end of your analysis why your judgment has changed and what other issue you would have written on had you recognized this sooner in the exam. I will take your explanation and proposal for an alternative issue for analysis into account when assigning points for this part of the exam.

As a guideline, you should spend equal time on the issue spotting section and the analysis sections of the exam.

The problems posed in this examination take place in the hypothetical State of Sell. You should assume that the State of Sell is a common law jurisdiction that has endorsed the Restatement (2d) of Contracts as part of the common law of that state. Its legislature has also enacted Articles I and II of the Uniform Commercial Code in their current form.


Contracts – Fall 2014: Sample Assignment Two Answer (excerpt)

Following requests in class that I sketch a sample, model answer to the second assignment, I promised to supply one model paragraph. I invested a little more time than expected in writing something up. Here is a top-to-bottom version of how an answer to the assignment might have been presented. To be clear: This is only one version of an answer, and an incomplete version at that. For example, below I have relied essentially on Section 201 of the Second Restatement, but it would be equally plausible to organize the answer around the plain meaning rule, from Lou’s standpoint, and then to consider the likely application by WJM of the rule on contract interpretation and parol evidence described by the court in Taylor. An answer that used those legal principles, instead of the rule I included below, would lead to an analysis of the facts that is substantially the same as the one presented, I think.  But the outcome of the case (i.e., who should win) is not the point to take away; reasonable minds could differ on that.  And reasonable minds could and probably should find additional legal arguments to raise and consider on the facts. The point to take away is the structure of how the material is presented.

[If you wish, state a conclusion as the introduction:]
I counsel Lou that his potential case against WJM is weak, because he will have a hard time proving that WJM knew or should have known of Lou’s present interpretation of the agreement at the time that the parties signed it. Here’s why.

[Set up the problem:]
Lou’s claim against WJM is based on the following provision in the parties’ agreement: ““If the Chuckles Project is produced by WJM as a motion picture, Lou shall be employed by WJM to render all customary services as producer, in exchange for ten (10) percent of the gross revenues associated with distribution of the motion picture.” Lou argues that WJM produced the Chuckles Project as a motion picture but failed to employ Lou as producer; accordingly, Lou is entitled to 10 percent of the picture’s gross revenues. We anticipate that WJM will argue that WJM was required to hire Lou as producer only if WJM agreed to make the movie as a result of its initial review of the Chuckles Project. We anticipate that WJM will support this interpretation with the argument that a different provision of the agreement provides that if the film is not placed elsewhere and WJM is not reimbursed for its expenses before the end of the Turnaround Period, Lou’s rights regarding the Project cease and WJM becomes the owner of the Project. WJM will likely argue that the Turnaround Period has expired and its development costs have not been reimbursed; accordingly, WJM is entitled to make the movie with the producer of its choice and not pay anything to Lou.

[Set up the rule that is relevant to the problem:]
The success of Lou’s claim depends on Lou’s application of the principles of contract interpretation where the parties disagree about the meaning of a contract term. Where the parties have applied different meanings to a promise or an agreement, then the provision in question is interpreted according to one party’s meaning if, when the contract was made, that party did not know of any other meaning attached by the other and the other knew of the meaning attached by the first party, or that party had no reason to know of any different meaning attached by the other, and the other had reason to know the meaning attached by the first party. Restatement (2d) section 201; Frigaliment.

[Apply the rule to the facts of the problem:]
Applying that principle, Lou has two methods of proving the case that he should have been hired by WJM regardless of the expiration of the Turnaround Period or repayment of WJM’s costs. He must show either (1) that WJM knew that Lou expected to be hired as producer of the Chuckles Project if and whenever WJM made the film, and that he (Lou) did not know that WJM believed that the contract required hiring Lou only if WJM made the Chuckles movie as a result of its initial review; or that (2) WJM had reason to know of Lou’s intended meaning, and Lou had no reason to know of WJM’s meaning.

Each argument will be difficult for Lou to sustain. Lou is an “A-list” Hollywood producer, famous and successful for his work with comic book movies. It is reasonable to suppose that he was familiar with Hollywood contracts and with “first look” producing contracts in particular. Even if Lou was not personally familiar with contracting language and contracting customs, it is reasonable to suppose that Lou had sophisticated agents and counsel who are familiar with both things. It is reasonable to suppose that WJM, likewise, was familiar with movie industry contracts and customs and had access to sophisticated lawyers. Moreover, the initial facts provide that both parties knew, by industry custom, that the contract language was intended to provide a level of financial reassurance to WJM in connection with the studio’s costly up-front investigation of the wisdom of making the movie, and that Lou would be paid either by WJM, or by a second studio that might pick up the project if WJM passed on it. The “termination of rights” provision will be offered by WJM as evidence that the contract advances that customary understanding.

Further research, such as further interviews with Lou and possible depositions of key WJM executives and/or industry experts, may flesh out that story and possibly provide more compelling evidence that Lou did not know of WJM’s interpretation and had no reason to know of it, and that WJM knew or should have known of Lou’s interpretation. WJM’s interpretation of the “termination of rights” provision may be challenged on the ground that it creates ambiguity that needs to be resolved via further testimony. The need for further testimony in general, however, suggests that as the matter now stands, the evidence appears to be (at best) equally divided, for and against Lou. On analogous facts regarding the weight of the evidence, the plaintiff in Frigaliment was denied relief.

Therefore, I would advise Lou that he has a weak claim.

10 Tips for Better Legal Writing

10 tips for better legal writing, from legal writing guru Bryan Garner:

Throughout your career as a lawyer, you’ll be judged professionally on two main things: your interpersonal skills and your writing. Although the requirements of writing assignments will vary depending on your organization, your supervisor and your clients, here are 10 pointers that will improve your work product.

Trademark Law Slides, Fall 2014