June 15, 2006
Don't Ask Me No [Certified] Questions...
A previous post mentioned King v. Fox, which involved claims by a member of the band Lynyrd Skynyrd against his attorney. In that case, the Second Circuit certified to the New York Court of Appeals three questions concerning ratification of an attorney's fee agreement.
(1) Is it possible for a client to ratify an attorney’s fee agreement during a period of continuous representation?
(2) Is it possible for a client to ratify an attorney’s fee agreement during a period of continuous representation if attorney misconduct has occurred during that period? If so, can ratification occur before the attorney has committed the misconduct?
(3) Is it possible for a client to ratify an unconscionable attorney’s fee agreement?
In this recent decision, the New York court answered all three questions "yes, but with significant qualifications." The decision reads well and the reasoning appears sound, but reference to Lynyrd Skynyrd's Don't Ask Me No Questions would have made it a hit.
[Meredith R. Miller]
June 14, 2006
The Legality of Oral Promises by NBA GMs to Potential NBA Draft Picks
There's an interesting post on the Sports Law Blog about the apparently standard practice of a team's General Manager promising a draft-eligible player that if he is still on the board when the team selects, the team will draft him. Jeff Clark of Celtics Blog raised these questions about the practice:
What kind of agreement is in place here? Is it considered an oral contract? What are the ramifications of backing out? I believe the Celtics asked Orien Greene if they could back out of their promise last year when they saw that Amir Johnson was still on the board.
Sports Law Blogger Michael McCann adds the following:
And let's try this hypo: Celtics GM Danny Ainge promises point guard Marcus Williams
that if he is still on the board at #7 (when the Celtics pick), Ainge
will take him. But on draft night, something strange happens: power
forward LaMarcus Aldridge--who,
as I note above, is projected by most draft experts to be a top three
pick--is still on the board at #7. And Ainge decides to take Aldridge
Can Marcus Williams successfully sue Danny Ainge and the Celtics for breach of contract or detrimental reliance? The answer is probably "no" but not without some decent arguments by Williams.
To check out more of the discussion, go here.
June 12, 2006
Debunking "Tested" Language
Contract lawyer and adjunct Penn law professor Ken Adams has a great post over at his AdamsDrafting blog on the fondness for "tested" contract language, in preference to drafting new, explicit language. He does a nice job of filleting the argument for such "tested" phraseology in a lot of cases.
Just to pile on, there are two other potential problems: (a) the likelihood that a court will later change its mind about what that language means when it surveys the landscape again after a few years, and (b) the likelihood that a court will let in parol evidence (see the previous post!) to show that these two particular parties really, really meant something different than what other people meant when they used the same language. That latter risk is much more formidable if the parties have used a piece of complex off-the-shelf boilerplate that if they wrote their own explicit language.
Adams, incidentally, is the author of a popular book on the subject, called A Manual of Style for Contract Drafting.
Life Without Parol Evidence: A Utopia?
by Hila Keren (Hebrew-Jerusalem)
Sometimes comparative law allows us to play the "what if" game without taking risks. A recent decision of an enlarged panel of the Israeli Supreme Court may have such an effect; so forget about Anglo-American law for a second and make room for lived experience from afar.
Until a decade ago the Israeli contract law had a norm of interpretation very similar to the American parol evidence rule. Then a revolution took place: in a landmark case called Apropim the Israeli court decided to release itself from firm constrains and to allow the use of any source of information -- be it written or oral, pre-contractual or post-contractual -- in order to learn as much as possible about the shared intentions of the parties to a written contract. As any other revolution this one too raised objections and fears.
Lawyers, for example, were said to have pulled their hair with frustration, because they felt that they could no longer ensure their clients that the contracts they draft for them will be interpreted in a way that follows their texts. After all, it has been said, who knows which wild conclusions the courts may arrive at under this new, flexible, open-ended regime of interpretation. By and large Apropim was taken by scholars as bringing new levels of uncertainty to the domain of contractual interpretation. Some judges were suspicious too. One of them, the powerful Supreme Court Judge Heshin, was worried enough to decide, long after Apropim had become the rule of law, that it calls for re-consideration. Using a special procedure of juridical re-examination which is saved for matters of the highest importance, J. Heshin asked his peers to retrospectively assess whether the intentions-based approach established by Apropim (i.e. no parol evidence rule) was an appropriate dismissal of an unhelpful formality or a precarious mistake of the sort which was anticipated by its opponents.
The much-awaited decision in the case of Megadlei Ha'yerakot was announced only a few weeks ago. It is a collage of nine judicial opinions that, albeit being written from diverse perspectives, all embrace Apropim and admit the value of deserting the former rigid rules of interpretation. J. Proccacia beautifully captured this value when she wrote (unofficial translation from Hebrew):
[The Apropim decision] gently makes a way into the depth of the human dynamics and in a nuanced manner gives the written text its appropriate specific gravity under the circumstances that surrounded the parties' contractual engagement. It creates a harmonious tie between words, written or spoken, on the one hand, and the parties' behavior and the external conditions, on the other hand.
Even skeptical J. Heshin, who wrote an elaborate critique of the possible misuses and abuses of Apropim (which he compares to the risk of a Tsunami), acknowledged the basic logic of Apropim: forsaking the traditional model of interpretation in favor of a more flexible search of the contract's meaning.
For those of us who look critically at the Parol Evidence Rule (as I do in a recent paper), this new development has more than a comparative power, it may also be empowering.
June 11, 2006
Sex, Truculence, and Alpacas
The June 2006 issue of the ABA Journal devotes a column in its "Obiter Dicta" section to a pending case in Indiana in which the owner (Cathy Crosson) of a registered female alpaca (Peruvian Lily) is suing the owner (Larry Johnson) of a registered male alpaca (Snowmass Casanova) for breach of contract over an alleged date-and-switch. Crosson claims that Johnson substituted another male alpaca for Snowmass Casanova and that Johnson refuses to disclose the identity of Casanova's stand-in, preventing Crosson from registering the baby. How does Crosson know that the baby is not Casanova's offspring, you might ask? She alleges that a blood test has ruled out Casanova as the sire. The ABA Journal reports that Crosson, who complains that Johnson "is merely being truculent," is seeking specific performance. (I wonder whether anyone has asked Peruvian Lily how she feels about it.) Unfortunately, the ABA Journal in not readily available online. Here's a link to a somewhat shorter story about the affair.