I’m surprised about the jury part, for multiple reasons. I would have expected that judges handle most contract disputes without a jury (partly because I’d expect disagreements on law/interpretation more often than fact), and that the sort of parties who want to avoid trials would usually prefer to designate some other arbitrator ahead of time for most matters anyway. What am I missing here?
In most US jurisdictions, interpretation of a contract is a question of law (read: decided by the judge). However, some subparts of that inquiry are questions of fact (read: decided by the jury). By far the most common is to argue that some key term of the contract is ambiguous—that if we read the document as a whole, that key term has two mutually inconsistent meanings.
This opens the door to evidence about the parties’ intent, which is a jury question. We lawyers are nothing if not sensitive to language, so we’re very good at coming up with possible ambiguities. A judge confronted with a bona fide ambiguity, or even a borderline one, ought to let the case go to trial for the jury to resolve the intent question. (The “ought” comes from common law about when summary judgment is inappropriate.)
Another good one is in contracts for specialized goods and services with esoteric terms and requirements. You identify some inadequately defined word no jury is familiar with and hire an expert witness to opine that the word’s meaning in the particular commercial context is x. Your opponent hires an expert to say it’s y. Again, the appellate courts tell the trial courts that in this situation, a jury should resolve the “battle of the experts.” P.S. you can find an expert to say just about anything for $5,000, $10,000 on the high side.
As you can imagine, it’s much easier to litigate the interpretation of a contract than to draft one that can’t really be litigated. Transactional attorneys tend to give litigators a hard time about this, and litigators give transactional attorneys a hard time about being terrified of court rooms.
This was a super-helpful comment, thank you!
I’m surprised about the jury part, for multiple reasons. I would have expected that judges handle most contract disputes without a jury (partly because I’d expect disagreements on law/interpretation more often than fact), and that the sort of parties who want to avoid trials would usually prefer to designate some other arbitrator ahead of time for most matters anyway. What am I missing here?
In most US jurisdictions, interpretation of a contract is a question of law (read: decided by the judge). However, some subparts of that inquiry are questions of fact (read: decided by the jury). By far the most common is to argue that some key term of the contract is ambiguous—that if we read the document as a whole, that key term has two mutually inconsistent meanings.
This opens the door to evidence about the parties’ intent, which is a jury question. We lawyers are nothing if not sensitive to language, so we’re very good at coming up with possible ambiguities. A judge confronted with a bona fide ambiguity, or even a borderline one, ought to let the case go to trial for the jury to resolve the intent question. (The “ought” comes from common law about when summary judgment is inappropriate.)
Another good one is in contracts for specialized goods and services with esoteric terms and requirements. You identify some inadequately defined word no jury is familiar with and hire an expert witness to opine that the word’s meaning in the particular commercial context is x. Your opponent hires an expert to say it’s y. Again, the appellate courts tell the trial courts that in this situation, a jury should resolve the “battle of the experts.” P.S. you can find an expert to say just about anything for $5,000, $10,000 on the high side.
As you can imagine, it’s much easier to litigate the interpretation of a contract than to draft one that can’t really be litigated. Transactional attorneys tend to give litigators a hard time about this, and litigators give transactional attorneys a hard time about being terrified of court rooms.
Thanks, that makes more sense now.