The Underappreciated Importance of Issue Sequencing in Contract Litigation: The “Signed Offer” Statute of Frauds Cases

Gregory Scott Crespi

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Judicial opinions rarely identify the sequence in which the court has addressed the different issues that were presented during the litigation. This is partly because the sequence in which the issues are addressed in a case is not generally regarded as a factor that can significantly influence its outcome. Persons seeking to understand the scope and significance of particular opinions consequently rarely attempt to ascertain this sequence, given that the task of obtaining litigation briefs and interviewing the parties involved in order to make this determination is difficult at best, and is often impossible, particularly for older cases.
It is my conjecture, however, that at least with regard to some issues that are presented in breach of contract litigation, the sequence in which they are addressed can be significant and may even at times be outcome-determinative. The importance under some circumstances of issue sequencing in contract litigation needs to be more widely recognized. Persons seeking to fully understand the opinions that address these issues should perhaps attempt to obtain litigation briefs and interview the key players that were involved, when such efforts are feasible. Unfortunately the claim that I am making as to the potential significance of the sequence in which issues are addressed for the outcomes of some cases would be extraordinarily difficult to test empirically.
46 New Eng. L. Rev. On Remand 37 (2011)

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