First-Year Contracts (Mock Class, BU Law)

Sullivan v. O’Connor is a case standardly taught in 1st year contracts

A law school class is a discussion.

The facts of the case:

• Alice Sullivan is a professional entertainer. She thought her nose was too big.
• She goes to Dr. O’Connor, who promised he could make it smaller, shorter, and more pleasing over the course of 2 operations.
• She agrees.
• It takes 3 operations, and when it’s done she says it’s bent, asymmetrical, and worse than before.
• This was back in the 1960s, she paid around $622

She brought Dr. O’Connor to court on breach of contract, claiming he disfigured and deformed her, which caused physical and emotional anguish, hurt her earnings, and secondly claimed malpractice.

She wins on breach of contract (an award of $13500), but loses on malpractice. Both sides appealed, for various reasons.

Interesting facts about the case: Dr O’Connor had promised a “Hedy Lamarr” nose. After this case, Dr. O’Connor went to law school so he could defend himself in the 42 lawsuits brought against him.

[8:10] a poem, submitted by a former student, about the case

Justice Caplan, of the Supreme Judicial Court of Massachusetts, was previously a contracts professor at Harvard. The first question considered in reviewing the appeal was whether it was an enforceable contract.

Why is that relevant? Doctors can’t guarantee the results of their work. Sometimes optimism is heard as a promise. Secondly, if doctors were held to results in a strict fashion, they might start to practice ‘defensive medicine’: they would become risk averse, and the liability would have a chilling effect on risks that are a net positive for the patient.

Justice Caplan suggested that courts should take a middle ground on these kinds of promises. On the one hand, making these promises binding is technically sufficient as long as doctors can be sued for malpractice/negligence. On the flipside, making them completely nonbinding invites doctors to offer services they couldn’t possibly provide (“the enticements of charlatans”).

The middle ground is that they are enforceable, but very clear proof has to be provided.

The main question in this appellate case is what remedy/damages Sullivan gets–whether she’s entitled to recover for more than out of pocket expenses.

[15:40]

Why do we even talk about damages. Why don’t we just say, “Dr. O’Connor, you promised a Hedy Lamarr nose, you deliver a Hedy Lamarr nose, or you go to jail. Or we’ll fine you a certain amount until you do.” Would that work here?

Basically, the nose could no longer be improved by further surgeries. Moreover, even if it could be, would you want that doctor to perform further surgeries on that patient? Given that the doctor had done it poorly the first time, would this patient want to go under the scalpel, while anaesthetized, of this same doctor, who was being forced to do this after years in court?

In lots of cases, asking the promissor to fulfill their contractual obligations is not possible or desirable, so we ask them to pay damages. And that’s relevant here, so instead this case ends up being about determining a relevant theory of damages.

Theories of recovery / damages assessed on pl:

• restitution: damages to the plaintiff are exactly the benefit conferred by the Plaintiff to the Defendant in performance of the contract
• reliance: put the Plaintiff back in the position Plaintiff occupied before the agreement
• expectation/expectancy: put Plaintiff in the position as if the contract was faithfully performed

What are the claims Sullivan made or could have made against O’Connor, and which of these are recoverable under each of the theories?

• (1) her out of pocket expenses ($622)
  • (1a) doctor’s fee - Restitution, Reliance
  • (1b) hospital expenses - Reliance
• (2) the difference in value between the nose promised and the nose delivered - Expectation
• (3) pain & suffering
  • (3a) from operations 1 & 2 - Reliance
  • (3b) from operation 3 - Reliance, Expectation
• (4) lost employment income
  • (4a) from the job she had at the time of the agreement - Reliance, Expectation
  • (4b) from future jobs - Expectation
• (5) cost of new surgery from another doctor - Expectation
• (6) loss of love interest - Reliance, Expectation
• (7) mental anguish (of having to see the bad nose for the rest of her life) - Reliance, Expectation

For Restitution, you rule out anything that Dr. O’Connor did not receive.

[30:42]

Justice Caplan weighs these 3 theories, concludes that reliance and expectation are the only two relevant ones and that he doesn’t have to choose between them.

Q&A

[33:35]

Q: One piece of advice for first year law students?

Let the system work for you. Don’t look for shortcuts, don’t panic that it isn’t working. Try to get on the wavelength of your instructors, do what your instructors ask/recommend, try to support your fellow students.

If you sort of let the system work, you’ll find that you learn an awful lot. And you’ll come out of the first year and people will be asking you–all your friends and family’ll be asking you all kinds of legal questions, and you’ll be saying “Well, I don’t know about that”, and “Y’know, different laws are different”, and “each state has different laws”, and “I can’t answer that question”. But most students come out with an intellectual self-confidence they didn’t have before–an ability to sort of speak more clearly, argue more persuasively, get to the heart of an issue much more quickly–and that’s greatly empowering.

[38:00]

Q: Is there a point when students start to see the forest for the trees?

Not really.

It’ll start off, like, it’s not clear what you’re getting out of this, so. You have a law school class, and instead of lecture, you have questions. And often those questions never get resolved, and you say, “well, I understand this question and this other question, but what are the answers to these questions?” But the process is in developing the questions, learning to find the right questions. And not so importantly what the right answers are. And that can be intellectually unsettling. And, you know, you’re not lectured at, so it’s not just acquiring knowledge, it’s skills training, building skills, how to read, how to speak, how to argue, how to think, and those things are often hard to measure.

[40:00]

Q: How are contracts classes structured?

Most first-year classes are case-oriented. There won’t be a lecture on grand theory, there will be stories with specific issues at play, and use those to build up the doctrine and the larger theory.

The reading assignments aren’t long, but you have to read them with a degree of care that people rarely have to read things. You have to know every line of the case, be prepared to answer any question about that case.

[43:10]

Q: Anything an entering law student should know?

Not really. Law school doesn’t assume any particular knowledge or skills. Colleague Ward Farnsworth has written a book, “The Legal Analyst: A Toolkit for Thinking about the Law” to try to orient the law student around different ways of thinking about law. Similarly, surveys and breadth are probably the way to go (the top review for this book on goodreads makes additional recommendations)

[44:30]

Q: If you don’t get any assessment until the end of the course, how do you prepare for the exams?

Look at previous exams from the instructor. Often they have memos describing how they graded those. It can help to do this exam for yourself, trying to replicate exam conditions (same time limit). Ideally you and your study group can do this and assess one another. Some instructors might be willing to look at a practice exam and let you know how you did.