Friday Frivolity: Law & Order, Breach of Contract Edition

It is a great tragedy that there has never been a successful television series about contracts lawyering, akin to the innumerable televisions series about criminal law. My curiosity was piqued when I started watching The Burial, featuring Tommy Lee Jones and Jamie Foxx, and realized that it was a movie about a breach of contract claim. Moreover, it was about a case that I remember because it was litigated while I was in law school, and its outcome incensed my international law mentor, Thomas Franck, for reasons that are beyond the scope of the movie.

The movie’s setup is pretty interesting from a contractual perspective. Tommy Lee Jones plays Jeremiah O’Keefe, who needs to sell off some of his funeral homes in order to raise cash to meet the liquidity obligations necessary to keep his insurance business afloat. The insurance business is what keeps everything else going, so he can’t afford to lose that.

Mr. O’Keefe flies up to Canada to meet with the rapacious businessman Ray Loewen (played by Bill Camp), who is buying up as many funeral homes as he can so that he can be on hand to offer his condolences when the Baby Boomers start shuffling off this mortal coil. The character provides a rather one-dimensional foil for Mr. O’Keefe’s salt-of-the-earth shtick. They enter into an oral agreement. The Loewen group will buy three funeral homes for a price to be determined. Mr. Loewen will pledge not to offer funeral insurance in southern Mississippi, where Mr. O’Keefe operates his business.

Mr. O’Keefe returns to Mississippi and sends in a signed contract. The Loewen Group never signs. Worse, they start selling funeral insurance in southern Mississippi. A young attorney, Hal Dockins (a fictional character added to the story and played by Mamadou Athie), who is advising Mr. O’Keefe realizes that the Loewen Group is stalling. They figure that Mr. O’Keefe is headed for insolvency, and then the company can purchase Mr. O’Keefe's entire operation in a fire sale. Mr. O'Keefe decides to sue, and he courts fast-talking Willie Gary (Jamie Foxx), a flashy personal injury litigator with Rolls Royces and a private jet. Improbably, Mr. Gary agrees to represent Mr. O'Keefe, despite the fact that he has previously: a) only represented Black people; b) only done personal injury cases; and c) only taken cases that he knows he can win. I assume that these facts have been exaggerated for dramatic effect. 

So, it’s a good setup for a simple David v. Goliath morality tale, but from the contracts law perspective, the wheels come off. The movie skips discovery entirely. There are no motions in limine, no jury selection. We go straight to trial without even the benefit of depositions. It’s quite ridiculous, especially as it seems like, as presented in the movie, Mr. O’Keefe has no basis for a claim when all he’s got is an oral agreement without a price term and a written agreement that only he has signed. A bit of background reading suggests that the facts of the actual case were closer. The way Jamie Foxx plays Mr. Gary's character is more Jacky Chiles than Johnny Cochran, and he comes up against an experienced litigator, a young Black attorney invented by the director, who is backed, again rather ridiculously, by an all-star cast of Black attorneys, rather than by a team of associates who specialize in contracts litigation.

I don’t want to give away the rest. It is an uplifting movie, and we could use something to make us feel good about things. The movie does not go into the important NAFTA implications of the verdict and the Canadian company's inability to meet its bond requirements to appeal outsized punitive damages due to the vagaries of Mississippi law. You can read about that here.

On the upside, there remains a niche for a great movie or television series that does for contracts law what Queen’s Gambit did for chess tournaments. The competition for the rights to my screenplay based on the ContractsProf Blog will now only get tougher.