On a rare occasion, I have come to funny conclusions about the law. Well, maybe not funny, but memorable. Once, when explaining the concept of equity and restitution to someone, I used an example that is noteworthy because it's a useful way to explain things to clients who may not be familiar with the legal process. Many times in preparing for trial, the first obstacle to tackle is my client's lack of information about how the law works, and it is my job to educate her from the beginning to ensure we are on the same page. This ensures that whatever lies next in the process, be it a hearing, mediation, trial date, or any stage in the litigation process, she has a clear understanding of what to expect from me and what I can expect from her. Some lawyers skimp on this stage in their relations with clients, and the unfortunate ones end up with ethics complaints because they didn't take the time to explain the groundwork issues involving their case.
At this point, I'd like to focus on a groundwork issue in many cases. It's a word bandied about more recklessly than “love,” and that word is “contract.”
Let me be clear: it's most applicable to the folks dragging other folks into court because they owe them money for services rendered. So without further ado, I give you a short tale about unjust enrichment. Please enjoy, and as always, if you are looking for an attorney who is as smart as she is charming, call the number at the top right of this page. She is me, and I am sometimes hilarious but always reasonably priced to fit your legal needs.
“It's not that I don't love you, ‘cause you know that I do, but there's only one thing I want you to do. Put it on paper.” –Ann Nesby, soul singer
Long before Beyonce advised men to put a ring on it, people have been writing and singing songs about the most famous kind of contract there is: the marriage contract. But what is a contract? How is one created? What can go wrong in their creation? That's the beginning of the topic to be digested at this point in our journey through Lawyering 101, so get the “Single Ladies” song out of your head (if you can), and pay attention!
The legal dictionary at www.law.com defines a contract as an agreement between two or more persons or entities in which there is a promise to do something in return for a valuable benefit known as consideration. This definition by itself is fine, but the important part to remember about contracts is that they are enforceable in court if one party meets its obligations under the contract and the other party doesn't.
A contract can be created in one of two ways, either by express language or implied conduct. An express contract was created by the parties' oral or written words. An implied contract is created by the parties' conduct. Beware, however, of the quasi contract. It is not a contract, but rather a tool of the courts to ensure fairness and prevent unjust enrichment. Here's what a quasi contract looks like:
In a world not unlike our own, Lil' Wayne records a verse for Drake's new album aptly named “Terrible Album.” Drake knowingly accepted the benefit of Lil' Wayne's rap services. Lil' Wayne reasonably expects to be paid for his contribution to the project, and Drake would be unjustly enriched if Lil' Wayne is not compensated for his verse because he would've effectively gotten something for nothing.
If Lil' Wayne sues Drake, a court would likely give him the reasonable value of the benefit conferred because there is no contract price, although one could possibly be rendered if there were other mitigating facts like the parties' expressed intentions. (It helps if those intentions are written, but since they are often not, remember our friend the implied contract which is formed by conduct. Not relevant here, but important to remember nontheless). Lil' Wayne's recovery in court is known as restitution.
In the example, Lil' Wayne's verse is a benefit conferred on Drake, but keep in mind, in this scenario, no contract was formed. Principles of equity intervened to prevent Drake from being unjustly enriched and to ensure fairness for Lil' Wayne's contribution to “Terrible Album,” which is probably still terrible, if only less so thanks to Mr. Carter.
Stay tuned for “Lawyering 101 part 2: That's Not What I Bargained For” as we turn to the very important topic of consideration and a more thorough discussion of client expectations.