Clovis’s Practice Exam Question, 8/27/03


Graduate cannot recover the full $110,000 because she accepted employment as a law clerk for $40,000.  The accepted rule states that a wrongfully dismissed employee will recover the agreed upon salary minus what the employee has earned or reasonably could have earned from comparable employment.  Under this rule, at most, she can recover the difference between the two salaries, $70,000.


In order to recover this amount, Graduate must show factually that the employment she was offered by Upp & Kumming was not substantially similar to the employment she was promised by Dewey, Cheatham & Howe.  If the court rules that the two positions were substantially similar, Graduate can only recover $20,000, which is the difference in salaries between the two positions over the duration of the breached contract.


There are several facts in this case that help show that the job offered at UK was not substantially similar to the one promised by DCH.


1.     UK has fewer lawyers than DCH.

2.     It takes longer to be considered for partnership at UK than at DCH.

3.     UK has fewer partners than DCH.

4.     The pay range UK offers to its partners falls lower than the pay range offered to the partners of DCH.


On the other hand, DCH could present facts in support of the conclusion that employment at UK would have been substantially similar or even superior to the employment of which Graduate was deprived.


1.     A greater percentage of the lawyers at UK are partners.

2.     Because UK is a smaller firm, Graduate would have been afforded more responsibility sooner than she would have at DCH.

3.     DCH may present evidence that though its partners’ pay is characterized by a wider range, the average partner salary at UK is actually higher than that of DCH.



Warning!  Probably going overboard at this point!


Both sides could make broader arguments about the damages or mitigation that are appropriate given Graduate’s long term employment outlook.


Graduate could argue that she was deprived not only of one year’s salary at DCH, but the opportunity to pursue greater financial gains from continued employment there.  She was promised the opportunity to enter into what amounts to a seven year competition to win employment as a partner with a very high salary.


DCH could argue that the expected opportunities, monetary and otherwise, afforded to Graduate in the long run from accepting the law clerk position would exceed the expected opportunities had the contract been performed, therefore, no damages should be awarded.


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