The Underappreciated Importance of the Sequence in Which the Issues are Addressed in Contract Litigation

Abstract

Judicial opinions rarely identify the precise sequence in which the issues presented were addressed by the court. Since this sequence is not generally regarded as being significant for the decisions reached, persons later parsing the opinions for their significance rarely go to the considerable trouble involved in acquiring the litigation briefs and interviewing the attorneys and judges involved so as to ascertain this sequence. However, my surmise is that at least in contract litigation the sequence in which the issues are addressed can sometimes be significant or even outcome-determinative for the results. A good example of this is presented by the conflicting jurisprudence regarding whether a signed offer is sufficient to satisfy the Statute of Frauds. I argue that the divergence among courts in this area can be largely explained by whether the Statute of Frauds issue was addressed before or instead after any contract formation issues that are presented. This conjecture as to the importance of issue sequencing would, however, be extraordinarily difficult to test empirically.