Contract claims and material terms

Written by: Thomas A. Downie September 1, 2021 Read Time: 1 min

This post is part of a series. Here is the full series list:

This is the fifth and final post in Cross Examination Series One. Cross-examination has undermined the professor’s contract claim in two ways. The parties’ oral discussions had not been contractual in nature, and the written contract proposed by the professor was immediately rejected by Mr. Simon. I now pursued a third prong—showing that the proposed written contract included material terms that had never been discussed.

BY MR. DOWNIE

Q Now, let’s go back to Exhibit 20, the proposed written agreement you had drafted by your lawyer. Again, this is the agreement in its unmarked version, the way you sent it to Mr. Simon, correct?

A Yes.

Q We’ve already established that you included in this proposed written agreement two terms. One, that you would provide Mr. Simon with transcriptions, and two, that you would keep him informed. So far so good?

A That’s right.

Q Your position, however, is that the initial agreement—the oral agreement you claim from the conversations in January of 1996—did not require you to provide transcriptions or keep him informed?

A That’s right.

Q You included them in the proposed written agreement. Yet your cover letter said the proposed agreement put in writing what was initially discussed in conversations?

A Yes.

Q You included those two terms in the written agreement because you thought Mr. Simon wanted them?

A Yes.

Q You also included some additional terms because you wanted them?

A I don’t know. Which ones?

Q Well, when you had those oral discussions with Mr. Simon in January of 1996, you didn’t discuss copyrights, did you?

A No.

Q That was a clause in the proposed written agreement that your lawyer put in, wasn’t it?

A Can you point it out?

Q Oh, sure. Page 2, first paragraph, No. 4 at the top. “To do all things necessary and proper to allow her,” meaning you, “and/or her publisher to obtain a copyright, and extension thereof, in each country in which rights are granted.” That’s not a term that you discussed with Mr. Simon back in January of 1996?

A No.

Q It was added by your lawyer into the written agreement which you proposed to him?

A Yes.

Q And similarly, on the first page of your proposed written agreement, Paragraph 1, you were “hereby given exclusive authorization and license to use the writings and other materials,” et cetera. That’s lawyer language again, isn’t it?

A Yes, but it was my understanding that I had the license to work on these materials until the book was finished.

Q But let’s be clear — when you had your meetings in January of 1996, you didn’t say to one another, we’re going to have a term which shall be that he conveys to you exclusive authorization and license to use these materials? That language was not discussed?

A No. It was a friendly relationship. There was no need to have legal language at that time.

The professor gave me more than I’d hoped for. “It was a friendly relationship,” not a contractual one. As the appellate opinion later said, “the trial court entered judgment in favor of Michael Simon, finding, inter alia, that no oral contract between him and [the professor] existed as to publication and, accordingly, [the professor] had no right to publish the transcriptions and translations of the diaries or retain the originals.” Tewarson v. Simon, 141 Ohio App. 3d 103, 750 N.E.2d 176 (2001).

That concludes the excerpts from the Simon trial. Watch these pages for other cross-examination ideas, with excerpts from other cases.

About The Author

I’ve litigated class actions and other complex cases for many years, roughly divided between plaintiffs’ practice and defense representation. My undergraduate degree is from Penn State University and I earned my law degree, cum laude, from Cleveland-Marshall College of Law. In my senior year I was elected Editor-in-Chief of the Cleveland State Law Review.