Some Comments on the Briefs Form

I have been reviewing the briefs turned in by students last week.  I have some comments.

For question 2, it doesn’t do anyone much good to know that Hannewald is the plaintiff.   We need to know what part he plays in the case.  In Hannewald, the plaintiff is a creditor.  The defendant is an individual who owns a corporation that Hannewald entered into the contract with.  How can the individual be liable for a debt of the corporation.  Isn’t there “limited liability?”  That is what this case is about.  This is “creditor of corp versus owner of corp.”  That is what question 2 should say.

For question 3, just say that the plaintiff wants damages.  He also wants an order saying that the owner is liable for the corp’s debt, or more precisely, an order that he can collect the corp’s debt from the owner.  (The holding is not that the owner is liable for the debt but it is that the owner must nevertheless pay the debt.  How can that be?)

For question 4, state the cause of action.  In bus org, the c/a is most often breach of contract or breach of fiduciary duties.  Sometimes it is violation of some statute.  If the c/a is breach of contract, think to yourself about who the parties to the contract are.  If it is breach of contract, the result should be easy.  The cases in the textbook tend to be a plaintiff suing for breach of contract against a person who is not a party to the contract.  There are very few exceptions to the limited liability status of corporate owners.  If the c/a is fiduciary duties, think to yourself whether the defendant owes fiduciary duties to the plaintiff.

For question 5, think about the cause of action as you review the facts.  If it is breach of contract again, the facts must be that pl and def entered into a contract – def didn’t do what he was supposed to do and there are damages.  As to fiduciary duties, I will discuss that more next week.  If the c/a is breach of a statute, we must know what the statute says and then facts showing the def did something that violates the statutes.

For question 6, the procedural posture should be thought of first as “is trial over?”  In other words, is this an issue which is arising before trial or after trial?    If it is before trial, is it summary judgment or something else?  If it is something else, the ruling from the court is often not that someone wins but that someone got over some hurdle that permits the case to go to trial (or not go to trial).  If it is summary judgment, are there really no material facts?  That is often the crux of the ruling.

For question 7, you can skip that.  I will talk about it is class.

For question 8, we get to the defendant.  I think it is very interesting that we can talk so much about a case before even considering the defense.  Plaintiff must establish that he has a cause of action against this defendant before the defendant must proceed with his defense.  If the c/a is breach of contract, the defense will be “I was not a party to that contract.” Or  I didn’t breach, or the breach caused no damages.  If the c/a is breach of fiduciary duties, the defense will likely be either “I do not owe fiduciary duties to plaintiff” or the business judgment rule – which will talk about a lot in the coming weeks.  If it is a statutory violation, the defense will usually depend on the exact language of the statute.  “I didn’t do that.”

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