How to read a contracts case

A boy in New Hampshire has a scar on the palm of his right hand. It came from a severe burn, from contact with an electric wire, about nine years earlier. A surgeon proposes an operation. He will cut away the scar tissue and graft skin from the boy's chest in its place. The boy's father asks how long the boy will be in the hospital. Three or four days, the surgeon says. And then, according to the testimony, the surgeon says something else. I will guarantee to make the hand a hundred per cent perfect hand.
The operation does not make the hand perfect. The boy sues the surgeon. And what the case became, in the hands of the Supreme Court of New Hampshire in nineteen twenty nine, is one of the most read opinions in American law. Not because of the hand. Because of what the court said a broken promise is worth. So here is the question for today, and it is not a question about doctrine. It is a question about reading. When you open this opinion, or any opinion, what are you looking for, and in what order?
Before anything else, the question that runs through this course. What exactly did these people promise each other? A surgeon and a father, in an office, before an operation. Hold that, because it is also the first thing a good reader of the case will want to know.
Here is the first line for the board. A judicial opinion is not an essay. It is a structured document, and it almost always has the same parts, whether or not the judge labels them. The parties and how they got here, which lawyers call the procedural posture. The facts the court treats as established. The question the court has to decide. The answer, which is the holding. The reasoning that connects the question to the answer. And the disposition, what happens to the case next.
Second line. Read a case three times. The first time, read it as a story, quickly, to find out what happened to whom. The second time, read it for the question, and mark the sentence where the court says what it is deciding. The third time, read it for the reasoning, and ask at each step why the court moved from one point to the next. Students who read once, slowly, tend to come away with the facts and no idea what the case decided.
Third line, and this one costs marks every year. A holding is the rule the court needed in order to decide the case on its facts. Anything else the court says along the way, however interesting, is dictum. Dictum can be persuasive. It is not the law of the case. And a later court that reaches a different result on different facts has not overruled the earlier case. It has distinguished it. The earlier rule still stands. It simply did not reach the new facts.
Now let's read Hawkins against McGee together, in that order. Start with the posture, because it tells you what question the court can even answer. The case went to a jury. The jury found for the boy. The trial judge then set the verdict aside. The appeal to the Supreme Court of New Hampshire was about what the jury had been told, in the judge's charge, about how to measure damages. So the court is not asking whether the surgeon was a bad surgeon. It is asking whether the jury was given the right rule for putting a number on a broken promise.
Next, the facts, as the court states them. Here are the court's opening words. The operation in question consisted in the removal of a considerable quantity of scar tissue from the palm of the plaintiff's right hand and the grafting of skin taken from the plaintiff's chest in place thereof. The scar tissue was the result of a severe burn caused by contact with an electric wire, which the plaintiff received about nine years before the time of the transactions here involved. Notice how flat that is. No adjectives. A court states facts the way a surveyor states distances.
Next, the question. Two questions, really, and the court takes them in order. First, was there a contract at all, or only a doctor's optimism? On that, the court looked at the words. Here is the sentence. The only substantial basis for the plaintiff's claim is the testimony that the defendant also said before the operation was decided upon, I will guarantee to make the hand a hundred per cent perfect hand, or a hundred per cent good hand. The court said that if those words were spoken, and taken at face value, they established a warranty, a promise about the result. The three or four days in hospital, by contrast, was an estimate, and the court said so. That distinction, between a promise and a prediction, is one you will use for the rest of your life.
The second question was the one the appeal turned on. If the promise was broken, what is it worth? The trial judge had told the jury it could give the boy damages for his pain and suffering from the operation, and for any injury the operation caused over and above the injury he had before. The Supreme Court said that was the wrong measure. Here is the holding, in the court's words. We, therefore, conclude that the true measure of the plaintiff's damage in the present case is the difference between the value to him of a perfect hand or a good hand, such as the jury found the defendant promised him, and the value of his hand in its present condition.
Now the reasoning, and this is where a third reading pays. Why that measure and not pain and suffering? Because a contract claim is about a promise. The surgeon promised a perfect hand. The boy did not get one. What he lost is the difference between what he was promised and what he got. The pain of the operation was not something the surgeon promised to spare him. It was, the court reasoned, part of what the boy agreed to go through in exchange for the promised result, the price he paid, not a loss the promise was meant to cover. The court borrowed the rule from the sale of goods. Here is that sentence. In such cases, the usual rule of damages for breach of warranty in the sale of chattels is applied and it is held that the measure of damages is the difference between the value of the machine if it had corresponded with the warranty and its actual value. A hand is not a machine. But a promise about a hand, the court held, is measured the same way.
And the disposition. Two words, at the very end of the opinion. New trial. The jury would decide again, this time with the right rule.
Now let's change one fact, and these three are exercises in reading, not in doctrine. First. Suppose I hand you the same opinion with the last two words torn off. From the rest of it, what did the court order? Think before you answer.
Most people say the boy won, and the reason is a good one. The court agreed with him about the measure of damages. But an appellate court in a case like this does not award money. It decides whether the trial was conducted under the right rules. The court held that the jury had been given the wrong rule, so the verdict could not stand and the trial court's ruling could not stand either. The only thing that follows is a new trial. Reading for posture tells you what a court can do, and that tells you what it must have done.
Change one fact again. A later New Hampshire court hears a case in which a surgeon told a patient, I hope for a good result. The patient sues on Hawkins. Does Hawkins control? Choose.
Most people say yes, because it is the same court and the same kind of case. But look at the words. Hawkins rested on I will guarantee, and the court was careful to separate that from the estimate of three or four days. I hope for a good result is a hope, not a guarantee. A later court would distinguish Hawkins on its facts. Hawkins still stands. It simply does not reach a doctor who made no promise.
Change one fact a third time. In the middle of the opinion the court remarks that surgeons would be wise to be careful what they say to patients. A later lawyer cites that sentence as the law of New Hampshire. Is it? Choose.
Most people say yes, because it is in the opinion and the court said it. But ask whether the court needed that sentence to decide the case. It did not. The case was decided on the measure of damages. A passing observation about what surgeons ought to do is dictum. It may be wise. It may be persuasive. It is not the holding, and a later court is free to ignore it.
Here is what people get wrong when they start reading cases, and why it is tempting. The first mistake is confusing the facts with the rule. The facts of Hawkins are unforgettable, and students remember the scar and forget the measure of damages, which is the only reason the case is in the book. The second mistake is treating the appellate court as if it found the facts. It did not. The jury did. The court took the facts as found and asked whether the law applied to them was right. The third mistake is calling a distinguished case overruled. Courts distinguish far more often than they overrule, and the difference is the difference between a rule that still binds and one that does not.
Here is the rule, in one breath, and today it is a rule about reading. Posture first, then facts, then the question, then the holding, then the reasoning, then the disposition, and never mistake what a court said in passing for what it decided. Now, five questions.