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Insist mark order

good morning welcome to all of you my name is Mark Pettit and I am one of the contracts teachers here at BU law school Sullivan versus O'Connor is one of the cases that I teach on in my first year contracts course so today I plan to conduct this class just as I would a normal first year contracts class just a few minor exceptions one is that we are being videotaped we're being videotaped so that we can present this mock class to people on the web who can't come to campus so the focus is on me not on you so I hope that doesn't deter anyone from speaking up also in this class I will call on volunteers only in the actual class I call on people at random and finally I'm going to keep the last ten minutes of the class available for questions that you have to ask me about what goes on in a law school classroom about bu law school law school in general any questions that you might have of a faculty member I assume that you all had a chance to look at the case I recognize that some of you haven't had a chance to look at it very thoroughly if anyone needs a copy I think there are additional copies in the back but I really hope is that I can entice many of you most of you to participate in the discussion that's what a law school class is it's a discussion as a general matter we don't lecture to you we don't talk at you we engage you and you have to contribute to the discussion okay so is there anyone brave enough to get us started by telling us the story here the facts of the case without using any legal terms anyway I want to break the ice and tell us about Alice Sullivan yes thank you I also said that she entered a contract have Kasich surgery done who knows okay what line of work was out Sullivan it's just a professional entertainer okay what was wrong with her nose too big all right so she's an entertainer her nose is too big so she goes to dr. O'Connor and what is he going to do for her right smaller and shorter and more pleasing in relation to her other features to operations okay she agrees to this does the operation happen I do have a visual aid here too they described the nose you know so she's asking for a smaller nose and this is what she gets okay it says her nose now had a concave line to about the midpoint at which point it became bulbous viewed frontally the nose from bridge to midpoint was flattened and broadened and asymmetric okay so I think this is a pretty good representation of the nose that was delivered to Alice Sullivan okay and it took three operations to get this right how much did she pay okay you have to remember this is cases from 1973 the events were in the 1960s you know you couldn't get a doctor to give you an aspirin in a hospital for $600 today but this was quite a while ago okay so what happens after that is can I get someone else to volunteer what happens after you know she gets this gross nose I'll leave this a little uncomfortable going to leave this as plaintiffs exhibit a okay so we'll leave that right there okay so what does Alice Sullivan do when she's disappointed in the results of these operations yes she brings dr. O'Connor to court and what claims does she bring from her appearance instead he performed her nose to other damaging expense okay so that was count one breach of contract you promise me to improve my nose and this is what you delivered okay he didn't perform the surgery with the kind of care expected of a plastic surgeon okay she brings these claims how does she do in court is there a trial by jury okay what does the jury decide okay so Alice Sullivan wins four on the breach-of-contract count but loses on the negligence the malpractice count and does the jury award her an amount of money yes $13,500 okay what happens next says that that was unfair that the judge miss instructed the jury what to take into account for damages okay go back go back and say to the jury hey let's do this all over again they don't go back so what do they do anyone yeah they filed exceptions that's during the trial but after the trial is over the jury gives the thirteen five what do they do yes they appeal to a higher court okay then I'll go back in the sense they don't go back to the same court they're appealing to another court they're saying to the higher court the lower court made mistakes I want a new trial and in fact both sides appealed okay so that's the story I usually provide some additional information to my students about the case one is that the record indicates that the doctor dr. O'Connor promised Alice Sullivan a nose that would look like Hedy Lamarr's nose have any of you ever heard of Hedy Lamarr she was a movie star Hollywood movie star from you came from Europe a big movie star back in the day you probably can't see this very well but she has a very nice nose so this is what Alice Sullivan was promised this is what was delivered another interesting fact is that dr. O'Connor after this case himself went to law school out in California and the main reason that he went to law school was to defend himself in the 42 lawsuits that had been brought against him that's a true statement okay some of you may have heard this but there's a tradition in my classes of students giving me creative submissions about the cases so they write them and I'm supposed to deliver them and here is a poem called a nose by any other name by dr. Seuss written by one of my contract students O'Connor's my name and noses my gain a nip and a snip and you won't even drip that was the call that lured in poor Alice who desperately wanted a shorter proboscis she sang and told jokes that left the crowd weak but was really displeased with the length of her beak she went to O'Connor and said help me Kenya I always look like I'm eating a banana no problem he smiled you don't have to search I can stop birds from using your nose as a perch a surgery or two and things will work out your face will be gorgeous you'll love your new snout he cut some and snipped some and cut down some more he took out the membrane that caused her to snore when he was done she expected a thrill to come when she saw what he'd done to her bill but she wasn't too happy with what he had saved it was flattened and bulbous and also concave in fact when she saw it she felt pretty glum for now she looked like she was eating a plum you didn't perform as she as you promised she said you stuck this gross nose on the front of my head you blew it three times and for that I want loot for the anguish you caused by miss shaping my snoot it's true I'm still working my fan still applaud with no thanks to you you olfactory fraud the court puts some limits on what she could take as pay for O'Connor's nasal mistake but Alice had suffered through her day in court and thoughts of O'Connor will still make her snort the case of MS Sullivan should give you a pause if you're thinking of chopping off part of your schnoz for as Alice will say you won't know how it goes and when it's all over a nose is a nose okay so after we state the facts and the procedural history the history of the court handling of the case what is the first question that is considered by the appellate court okay so we have an opinion here from the Supreme Court of Massachusetts Supreme Judicial Court of Massachusetts the highest court in Massachusetts one thing to notice is that the justice is justice Kaplan and the thing that's notable about him is that before going on to the bench for many years he was a contracts professor at Harvard Law School so this is someone who knows something about contract law okay so what is the first question that justice Kaplan considers in reviewing this case of Sullivan versus O'Connor yes okay whether it is actually an enforceable contract and why wouldn't it be doctors can't really guarantee your work in certain situations and especially with psychological issues with their patients that since it's a very very bad person it's hard to guarantee anything so in order to keep doctors able to practice they kind of said that maybe it contracts such as those or not okay very good so the first question is should courts enforce agreements in which doctors promise certain results to patients okay and just as you say he's saying there's good reasons maybe we shouldn't because of the uncertainty doctors seldom actually promise specific results sometimes optimism is heard as a promise so you don't want your doctor to say well gee I'll try this but boy I'm not sure it's going to work you know you haven't won somebody be upbeat right we're going to do this you're going to be better and that might be interpreted as a promise where it's merely optimism okay and then you made a point he says that he's concerned that enforcing these promises may cause doctors to practice defensive medicine okay what does that mean why wouldn't we want doctors to practice defensive medicine what is defensive medicine anyone yeah okay but are we concerned about patients rather than medical science to say well I'm going to experiment on you I'm going to risk on you so I can advance medicals I said no thank you you find someone else to experiment on I'd rather just take care of me and not all the medical science right it often may be in the patient's interest to take some risk it's a risk worth taking but the doctor wouldn't do what was in the patient's best interest because the doctor was afraid of being sued okay so how does justice Kaplan resolve this question should courts enforce this kind of promise yes where's she taking middle ground okay why not just say no oh because otherwise doctors would have a pretty hand to do whatever they wanted and they wouldn't have if they weren't given defensive medicine he was saying that doctors basically could be given whatever they wanted really if they didn't have to fear being sued okay they always can be sued for malpractice but why not say you can be sued for if you screw up the job if you're negligent in the job but we're not going to force any promises against you why does justice Kaplan say well I want to go that far yeah but he's worried about the enticements of charlatans right charlatans will promise all kinds of things and even if they do the procedure it never had a chance in a chance of succeeding and so we're going to have a middle ground alright and what is the middle ground yes we will enforce them but will insist on very clear proof and we'll tell the jury that they need very clear proof before finding one of these promises enforceable okay so that's the first question should these promises be enforced at all what's the next question and really the main question in this case yes should she be able to recover for more than out-of-pocket expenses that's a good statement of the specific issue here phrased more broadly we might say assuming that we're going to enforce this contract what should the remedy be what damages should she get well that's why do we even talk about damages why don't we just say dr. O'Connor you promised a hedy lamarr knows you deliver a hedy lamarr knows are you go to jail or will find you a certain amount until you do okay would that work here yes and that pendulum bar is not going to be in this woman's future so I think that we'll have to just get damages because if you just keeps working on this person it's going to get worse okay there's something very specific in the case about this what does it say in the case let me catch this yes okay they say this configuration referring to this could not be improved by further surgery okay let's say it could would you want the doctor be ordered to perform the surgery I'm seeing people shake their heads no I'm shaking my head no why yeah yeah I mean you're going to he's performing the surgery only because he doesn't want to he's ordered by the court to do it you're unconscious he's got a scalpel on your face you know I don't think I want to have that situation okay so in some cases that's what we do we say you have to perform mr. promise or or you go to jail you're in contempt of court but in this case and lots of other cases we say well we can't do that or we don't want to do that and so the best we can do is what yeah expensive fix it or just the damages that make them pay money okay we don't really call it a fine but yeah make them pay some money to the victim of the breach of contract okay so the case is mainly about how we figure out the proper measure of damages the proper theory of damages that Sullivan can collect okay and in doing so and the reason that we assign this case is the court talks about three ideas okay first idea justice cap and calls restitution okay this is a theory of recovery what canal assault and recover she can recover the amount of benefit that she conferred on dr. O'Connor in performance of the contract okay the benefit that Sullivan conferred on O'Connor in performance of the contract this is quoting from the language of the opinion okay the second idea it's talked about last but it's the second idea I want to talk about justice Kaplan calls reliance and the idea there is to give Alice Alvin enough money to put her back in the position she occupied before she ever crossed paths with dr. O'Connor that's our goal get her back where she was before dealing with dr. O'Connor at all and then finally expectancy also called expectation our goal here is to give Alice Salomon enough money to put her in the position she would be in if the contract had been fully perform performed okay those are the three ideas okay and what I'd like to do is try to put those ideas into operation by applying them to possible claims that Alice Sullivan can make against dr. O'Connor so let's put these some of these on the board so what's the first obvious claim that Alice Alvin can make against dr. O'Connor for money it's so obvious that dr. O'Connor didn't even complain about it he said yeah there should be at least this okay yes okay so her out-of-pocket expenses okay this was six hundred twenty two dollars plus right and I'm just going to break that into the doctors fee and hospital expenses assuming that the 622 covers both okay what else could she ask what did she want what did she think the recovery should be what did she want the trial judge to tell the jury about how to come up with the damages yeah that's not what she asked for in the instruction okay but I want to get to that so so pain and suffering again I'm going to separate these into operations one and two and operation three okay what did she ask for yes okay the difference in value between knows promised hedy lamarr and those after our knows delivered Balbus asymmetric exhibit a over here okay that's what she wants what else might she asked for yes okay employment the court says she didn't prove any loss of employment but conceivably she could have so lost income from employment okay anything else be creative here be imaginative sky's the limit anything else yes number two but if she wanted to have another operation from a different doctor fix it to get her the nose I promise okay the problem with that in this case is they said it couldn't be done by anybody okay news so costs of new surgery another doctor anything else yes okay all right sad story yes okay anything else loss of love interest okay all right one more yeah yeah and she's had a look in the mirror every day and see this you know the mental anguish of that okay so let's say mental anguish okay so this is a good enough list for our purposes all right so now what I want to do is ask which of these are recoverable under these theories okay that's you know that's the client wants to know what can I recover what money can I get okay if our theory is that of restitution which of these items is recoverable all right have start at number one out-of-pocket expenses doctors fee random people shaking their head yes okay why yes so I'm going to put here restitution yes why so obvious you don't need to state it yeah that was the benefit he got from performing the operation the money that she paid to him in performance of the contract okay that is restitution how about the hospital expenses okay did he get a benefit from this okay if the money isn't paid to him it doesn't look like it's restitution it's not a benefit that he got okay difference invariably nose promisin owes delivered I'm asking only about restitution now okay what I'm gonna do is going to go through with restitution through with Reliance and then through with expectation okay anyone want to say yes to this no it's not this because this is focusing on her right restitution focuses on him what benefit did he get okay this is her loss not his benefit pain and suffering unless he's a sadist no okay lost income from employment no again this is her loss not his gain cost of new surgery another doc no loss of love interest no mental anguish no okay this is all this is all any other possible benefit that the doctor got out of this yeah could he say because the bad publicity you received from the court case that he didn't receive any benefit or receive any benefit possibly possibly that the net gain was zero because of the publicity he lost other jobs because of it okay so any other benefits to him well the only other possible one might be the benefit of getting the experience okay let's take Reliance okay doctors fee all right now we're focused on her not him we want to get her back to where she was before she even met up with dr. O'Connor okay we give her a doctor's feedback yes hospital expenses yes difference in value between those promise and those delivered you're saying no okay if we're getting up getting up to knows promise that's not Reliance right that's getting to where she was promised not where she started pain and suffering operations 1 & 2 I'm seeing some people say yes and some people say no had she never talked to dr. O'Connor which you have had pain and suffering in operations went on to know we're trying to get her back to where she was so reliance operation 3 yes okay lost income from employment to the extent that it was less than what she was already earning yes okay loss of income from not having a Hedy Lamarr nose instead of the long straight nose no okay cost of new surgery of another doc no because that's going to get her that's trying to get better not unless it's just trying to get back to where she was then maybe yes loss of love interest possibly yes okay mental anguish yes okay expectation out-of-pocket expenses I'm seeing some yes and some no okay I'm going to take a stand on this the contract would have been fully performed she would write and this is what justice captain says if the contract have been performed this money would have been spent so we say no to expectation difference in between value knows promise and knows delivered you've said it twice you're right twice expectation that's the definition of expectation okay pain and suffering operations one and two no Kaplan says no and again for the same reason you know unless it was greater pain and suffering then if he had done the job right but the pain and suffering that she would have to go through to get the hedy lamarr knows no what about operation three yes okay because had the contract been performed as promised there wouldn't have been an operation number three okay lost income from employment okay here you might want to get all the way to what employment you know what income she would have had with the hedy lamarr knows okay costs of new surgery another doc okay depending on what we're trying to do if we're trying to get her up to Hedy Lamarr yes loss of love interest okay assuming that her love interest likes hedy lamarr better than long and straight I guess maybe yes expectation okay again she wouldn't have the mental anguish if the concrete been performed and she got ahead of Lamar okay so this is just very quickly trying to put into effect these three ideas okay there's lots more that we could talk about in this case which one is justice Kaplan choose he says he doesn't have to choose why is it true that he doesn't have to choose do you agree with him when he says he doesn't have to choose between expectation and Reliance okay I do want to move to my next creative submission and I need some help from Kiki Dee to do this hello you said you fix my nose to operations I tried no success my nose is disfigured we'll operate a third time oh I should go hurry fold expectations too big restitutions too small Reliance get you back where you were money for doctors cause but there's no job that you've lost my mental distress is high can't say I didn't try mad at a club non-commercial personal expectations too big restitutions too small rely and sketch is back where you were my cadence of the Ring but you expected those things I wanted a hedy lamarr look hey that's the chance that you took Oh just goes to show you really should no expectations too big restitutions too small Reliance get you back where you were don't go breaking my nose I won't go breaking your nose don't go breaking my don't go breaking mine don't go breaking my nose don't go breaking mine don't go breaking my don't go breaking thank you thank you it's not really Kiki Dee at sera Casco is a 2l I was in my contracts class for this case last time we have a few minutes so there's a lot more that we could talk about this case but I wanted to leave some time for you to ask me questions if you do have a question if you could just wait until the microphone is delivered to you we'd like to get your question on the videotape and this can be about what goes on in law school classrooms anything about bu law school law schools in general anything that you think a faculty member would be helpful with any questions any questions about curriculum about what goes on in a classroom I could ask some more right okay um I'm just wondering how much do you typically deal with students particularly first-year students are you in your office a lot do you do work with them okay the question is what kind of interaction do I have with students particularly first-year students and the answer is an awful lot of contracts in this school is a year-long course so I students get to know me very well I get to know them very well on a personal basis through the first year all faculty members have prescribed office hours usually at least two hours a week and that's a time when you know that you can find the instructor in his or her office and speak with them usually every class students come up with questions afterwards and people can drop in my office at other times so there is an awful lot of interaction between students and faculty here and I think that's particularly true in the first year upper class as you develop specialties you'll tend to gravitate to faculty members who have the same interests in law that you do and you may be involved in a journal and you get a group of friends and faculty members that are involved with that yes microphone oh okay if you could put one major warning label on your first year of law school I guess one piece of advice that we all should know before we come here what would you tell us how one piece of advice you know I think my biggest piece of advice would be let the system work for you that is your goal should be to try to meet the expectations that you that your instructors and classmates have for you so don't look for shortcuts don't panic that's not working by into the system to try every class try to be as prepared as you can for what is going to happen in that class try to get on the wavelength of your instructors do what your instructors ask you to do work with your fellow students support them they'll support you don't be unduly anxious about things you know it's part of a process any process that is worthwhile it's going to stretch you everybody else is going to have the same feelings of being stretched and feeling incompetent at times but believe in the system and then after the first year talk to me and if you say well didn't work for me you know then we can talk about that but I think for most people 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 be asking you all your friends and family be asking all kinds of legal questions and you'll be saying well I don't know about that and you know different laws are different and state the state has different laws and I can't answer that question but most students come out with an intellectual self-confidence that 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 so I think let the system work for you is my one if I had to pick a single piece of advice that would be it I don't know whether this is going to be this thing on okay I don't know whether this is going to be possible to answer even if there is an answer but at what point do you find that your students all of your students start to see the forest for the trees in your course is there like a point in the semester where it's like and all of a sudden everyone's getting it or I don't think so a lot of people not everyone would agree with me on this some people think that you know in the middle or you know 2/3 for the semester it all starts to come together I teach a year-long course sometimes people say in the middle of the second semester it comes together but I think it really is different for different people and I think you know the problem with saying at this point you're supposed to get it you get to that point say well I still don't get it oh I'm the only one no you just different people get it in different ways and sometimes you're not sure of everything that you do know you know more than you think you know so I don't think I would look for a particular point in time where it's all supposed to click it'll start off like you know 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 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 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 does it speak how to argue how to think and and those things are often hard to measure so no magic time everybody is different yes down here in this row how is the typical I guess in your case a contracts class sort of structured like do you do sort of you teach the theories and then do we look at a lot of case law what would a sort of standard structure be like okay different instructors have different methods but most first-year instructors most first-year classes are case oriented and that's definitely true for my case so I don't begin with grand theory I begin with what did Alice Sullivan say to dr. O'Connor and what did dr. O'Connor say to alice Sullivan so I start with the stories and then we build up from reading all these stories actual cases okay these aren't hypotheticals this is actual disputes people have had and use those to build what the doctrine is and then larger theory but it's very much the particular in most courses and 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 know you have to know every line of the of the case be prepared to answer any any question about that case now one other question sure um do law students do I guess drafting or I mean in terms of the exams and how that's structured is it sort of writing a lot of I don't know I'm not sure exactly if I'm okay none see obstacle drafting how does the exam process work a sample brief or something like that okay in addition to your for substantive courses each semester and a couple of courses are year-long so they count as one each semester you have a first-year writing program and in that program you will write memos briefs you will do oral argument legal writing of various kinds it's in a small group supervised by a lawyer and graded by a lawyer the exam process usually have either just one or two exams in the entire course a major exam and a final or sometimes just a final exam and usually those exams are essay exams and okay in my situation I would just tell you a story right I would tell you the story of Sodom versus O'Connor and then you would have to determine what are the problem what are the legal issues that are involved in this story and then you try to bring to bear on those issues the course material and try to make you know what are the arguments that Sullivans lawyer would make one of the arguments that dr. O'Connor's lawyer would make and how do I expect them to be resolved so it's an essay type question and instructors grade those questions that's the professor's agreed we don't have any teaching assistants doing any of the grading yes is there anything in particular that a entering student should know before entering law school or if not is anything that be beneficial to know like in terms of books writers and we've um I don't think there's anything necessarily that you need to know there are a number of books of introduction to law school I don't think they're all that important sometimes they can reduce anxiety a little bit one of my colleagues here Ward Farnsworth who many of you will have the first year instructor has just written a book which has a toolkit for legal arguments economic arguments psychological arguments philosophical arguments and I think that of all the books I've seen I think that's one of the best it's by Ward Farnsworth and I'm not sure of a title but it's a legal practitioner or a toolbox for Law School it just came out so that's one book that I think could be useful but you'd do perfectly well you know we don't expect you people come from all kinds of backgrounds all different majors we don't expect any core of knowledge starting out back to earlier question in terms of so if there's one big exam at the end of the semester is there any like are there any assignments along the way or any like kind of practice in terms of writing an essay and how to frame an essay in the way you would expect a student to do during an exam so that kind of keep kind of make sure you're on track and to see what you're expecting and it's a good question if you don't get any assessment until the end of the course you know how do you prepare for that I think one good way to prepare for that is to look at previous exams given by the instructor and often they will have memos describing what it was they were looking for how they graded those and often students will take those exams and share answers with each other look at the memo and some instructors will also be glad to look at a practice exam that you wrote and give you some feedback on that I think you know taking some previous exams particularly with the time limits that are involved is a good way to prepare for a final exam because nothing you know quite replicates it in class things are you know the areas are kind of flagged for you it's sort of labeled as to what you're talking about whereas if you just get a story you're not sure which part of the course is involved and so taking old exams is a good way of getting ready for that well thank you you're a great class I hope to see many of you in the classroom starting in the fall have a great day take advantage of your time here ask questions particularly ask questions of current students I mean those are the people that will give you the straight scoop about bu law schools so don't pass up the opportunity to get feedback from them thanks a lot see we either at lunch or hopefully next fall you