I have not taught first semester 1Ls since the fall semester of 2005, and I've got one of our evening sections of Contracts (100 students) for this entire year (on Mondays beginning at 8:25 p.m. and running until 9:40 p.m., a time of day at which, until this semester, you had a better than even chance of finding me out for the night). I've already written about the synergies between teaching and theory; it's also an interesting learning experience for me in sensing fundamental confusions, particularly as they gather momentum in the classroom, and pull us off topic. In the give-and-take (or the heat of battle, depending on your mood), that sense may well be intuitive; you know the students aren't getting it, but you haven't quite put your finger on it, nor figured out a way to bring it back to the point you want to teach. That happened to me last Wednesday and I thought about it and returned to it last night.
The case we are studying is Lucy v. Zehmer, the contracts chestnut in which Lucy comes into Zehmer's restaurant one night, and in an atmosphere of drinking and conviviality, has an odd negotiation that results in a contract, documented on the back of a restaurant check, for Lucy to purchase a piece of land from Zehmer. Zehmer contends later he thought it was all a joke, but the Virginia Supreme Court, reviewing the record de novo (there were no factual findings below), holds that the objective indicia are of a contract, and that Zehmer's unexpressed subjective intentions, even if true, are of no weight in that determination. There was a factual issue at trial. Zehmer and his wife contended that they had expressed to Lucy before he left that they thought it was all a joke, but the Virginia Supreme Court, as part of its de novo review, found that the evidence did not support the factual claim.
I was using Lucy not only to teach the "objective theory" of contracts, but as an example of how to read a case. What went off-topic (in my view) was the students' desire to debate the factual issue as though the point of the case were to analyze trial tactics. The questions were about the relative weight of the conflicting testimony, or what the lawyers could have done to bolster Zehmer's contention that it was a joke, or even some confusion about why the court was saying that it wasn't a joke when one of the parties was contending it was. What I had said to them last week as class was concluding was: "We are off-topic. Debating the factual conclusions or trial tactics of the lawyers is not our job."
Like Novak Djokovic with the rain delay, I got to use the several days until the next class to regroup on a topic that I realize is fundamental, jurisprudential, impacted by popular culture, and not intuitive. So I started class last night with the semi-lecture that follows the break.
We need to step back and revisit a bit of confusion from last time. We got into a discussion about whether the Zehmers ever really communicated the "it's a joke" to Lucy. I said pretty emphatically: "That's not our job." I want to spend a little time explaining why.
We talked last time about the difference between a factual finding and a legal conclusion. This can be confusing. Is "was he drunk" a fact question or a law question? Whether we conclude he was drunk by the way he acted or by observing a blood alcohol level, in this context, drunkenness is a FACT issue. But if I was drunk at midnight in my own house by myself with eight hours to sleep it off, who cares? What is the legal consequence of that fact? As far as we can tell, there isn't one. But being drunk while driving on the Mass Pike, or while you are negotiating a land sale in Zehmer's Restaurant might well have a legal consequence.
There will be a time and place in law school where you learn how to be a lawyer regarding the proof of facts. There will be an evidence class. There will be a trial practice class. That's not what we are doing here. We are not Jack McCoy trying to determine what actually happened in that Upper West Side apartment when the rich guy died. In first year contracts, we are learning to understand the relationship between the reality of the world – its facts – and the way that the law, or participants in the legal system from their frames of reference, characterize those facts into legal consequences.
Let's go back to our after the fact frames of reference (Ed. note: see earlier post) and look at the different between fact issues and legal issues in the litigant's frame of reference. There's an old saying among trial lawyers: if you have the law, use it, if you have the facts, stress them, and if you have neither, pound on the table.
What does that mean? It is that the best way to win is with a legal theory that supports the consequence your client wants. "I was upset with the result" may be a true conclusion (and even persuasive emotionally), but it's not a legal theory.
A legal theory expresses the legal consequence that arises when a given set of factual elements exist. A promise is a legal conclusion. The factual elements are (1) manifestation of an intention to act, (2) made so as to justify another in understanding, (3) that a commitment has been made. Lawyers plead counts because they want to argue the law. Arguing breach of contract as a legal theory is so much more effective than "because I want it" or "it's just unfair." (Ed. note: these are the visual aids I had used a couple weeks ago on this point).
Now let's look at the judge's frame of reference. It's the judge's or the jury's job to resolve disputes of fact. Here there was a "he said/she said" about whether the Zehmers ever communicated to Lucy that it was all a joke. But the court has resolved it! Why? Because the court also expresses its reasoned legal conclusions in terms of a legal theory. Where there was a choice of theories, the choice may depend on the facts, or if there's just one theory, the facts will determine if the elements are satisfied.
Finally, we come back to our scholar-student frame of reference. Is it our job to assess the court's fact finding? NO NO NO. Our job is to understand how a given set of facts creates a legal consequence. The correct question for debate in our context is NOT: "Did Zehmer communicate that it was a joke?" The correct question is: "if the court HAD found that Zehmer did so communicate, would it have made a difference in the legal consequence?
I think it worked, at least by my perception that some heads were nodding. But it was nevertheless difficult. Some students still wanted to go back to the trial tactics issues, at which point I responded, "don't go all Jack McCoy on me!"