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A Trip Down Memory Lane

Clifford's Notes, Chicago Lawyer July 1, 2013

By Robert A. Clifford

I recently wrote a column about how proud I am to be a lawyer and even prouder that my daughter, Erin, completed law school and passed the bar exam. She now clerks for an appellate court justice in Chicago. I received many calls and letters including an e-mail from a downstate lawyer who read the column after practicing law for 25 years. He called the letter to my daughter “very inspiring, refreshing and heartfelt.” After feeling a bit burned out, he said it helped remind him why he wanted to be a lawyer and “helped rekindle the flame and put a fire back into my desire to practice law.” Those words are most humbling.

So now I turn my attention to oft-forgotten rules, memories that may rekindle that flame about how much you loved law school.

• How often have you gotten a call from a client who has received a check that contains words like “full and final payment?” You may have gotten one of those yourself. The question is always the same. “What happens if I cash it?” The answer depends on the rule of “accord and satisfaction,” which you may recall from first-year contracts. Accord and satisfaction is said to be a contractual method of discharging a debt or obligation by some performance other than that which was originally due. Usually this means something like paying a $1,000 invoice with $700. So what happens when you cash the “final payment” check is that you get that money for sure, but whether you can get the rest of what you have coming depends on the history of the transaction. The existence of an accord and satisfaction (i.e., a bar to your being able to get the rest of your money after you have cashed the check) depends on a couple of things. First, there has to have been a bona fide dispute about the debt. This can be in the form of a letter of complaint or even in a cover letter that comes with the check. The other requirement is that there has to be some reasonable relationship between the tender and debt. A $200 payment may be a reasonable tender for a $1,000 invoice, but not for a $1 million invoice. But, as a rule of thumb, if you cash the check, that’s probably going to be end of the matter.

• The mailbox rule, sometimes referred to as the postal rule. When you mail something, an offer is deemed accepted once it is dropped in the mail, even if the other person hasn’t even seen it or opened it. The same now has been applied to electronic transmissions. I actually used this rule once in a case involving payment of an insurance premium. It’s good to know.

• The proper client representative of the estate must sign the representation agreement on behalf of the estate. That means you have to know the difference between an heir at law and a legatee under a will; the difference between an administrator and an independent administrator; and the difference between an executor and an independent executor as well as who had priority among the heirs at law to nominate the administrator.

Carbolic Smoke Ball case. Do you remember the first case in contracts class? It might have dealt with an advertisement that was the subject of a lawsuit in England in 1893. Mrs. Carlill bought the advertised “medicine” that allegedly cured influenza. The ad said if you bought the Carbolic Smoke Ball and used it as directed yet still came down with influenza, you would get 100 pounds. She came down with the illness but when she went to collect her 100 pounds, the company turned her away and refused to pay, saying it was mere puffery. She sued for breach of contract and the court ruled that a unilateral offer is binding when the offer can be accepted by performance only. Notification of acceptance is not necessary.

• The parol evidence rule. This prevents a party to a written contract from presenting extrinsic evidence that may contradict or add to the written terms. Subjective intentions of the parties will not be considered when they have committed their negotiations to an unambiguous contract. Armstrong Paint & Varnish Works v. Continental Can Co., 301 Ill. 102, 133 N.E. 711 (1921). Think auto sales.

• Rule against perpetuities. Ah, yes, that famous common-law rule of property. Basically, it does not allow a testator to earmark contingent gifts for remote descendants. Some states have abolished it. In Illinois, see 765 ILCS 305 (1969).

• Recently, I watched a program on WTTW-TV Channel 11, “Constitution USA,” which showed actual black-and-white film footage of Clarence Earl Gideon. He is responsible for the case that established the constitutional right to a court-appointed attorney after he was found guilty in a criminal pro se trial. He petitioned the court in pencil. The court unanimously granted him a new trial with a lawyer. Gideon v. Wainwright, 372 U.S. 335 (1963). He was later retried with counsel and found not guilty.

Erie doctrine. Who doesn’t remember their civil procedure professor in 1L that drilled Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) into our brains? The landmark case holds that in a diversity action, a federal court must apply state substantive law.

• I have to end with a case close to my heart: Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928), a landmark tort case that discusses proximate cause and its relationship to duty.

Although law school may be over, we’re always learning.

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