Say What You Mean, and Mean What you Say

Say What You Mean, and Mean What You Say          The Indiana Court of Appeals has again weighed in on the issue of contract interpretation.  In a recent case involving a “right of first refusal”, the Court was again asked to try to determine the intent of the parties from the plain language of the contract.  Interestingly, although all three judges on the Court of Appeals agreed that the “plain meaning” of the contract was “unambiguous”, the judges disagreed on what was that plain meaning.             In the case, individuals had leased several parcels of real estate from an oil company to operate gas stations.  As part of those leases, they negotiated a “right of first refusal” to purchase the parcels of real estate on which they operated their gas stations.             Years later, the oil company entered into a proposed agreement to sell all of its assets, including the real estate, for a combined price of $80,000,000.  The oil company did notify the individuals of the proposed sale and offered them the right to exercise their right of first refusal to purchase those properties.  Of course, the “offer” that they needed to match was for $80,000,000.             The individuals filed the lawsuit saying that it was never the intent of the parties that their right of first refusal would be tied to an offer that also involved all of the other assets of the oil company.  While the plain language of the contract simply says that the individuals had the right to match any offer to purchase their leased real estate, the individuals believed that it was...

25 Lessons in 25 Years – Part V

25 Lessons in 25 Years- Part V   We have reached the “Final Five”.  Again, these have been in no particular order other than number 1, which is the most important lesson that I have learned in my 25 years of law practice.  As I complete this list I realize that there is some overlap in certain of these lessons and some of them have more applicability on a day to day basis than others.  Nevertheless, it has been a worthwhile exercise to think through my career and those lessons that have had the greatest impact on me. This May Surprise A Lot of You.  Lawyers often have the reputation for being “slick”, sneaky, untrustworthy, manipulative, etc.  People love “lawyer jokes.”  Some lawyers are absolutely deserving of these labels, but the part that will surprise you is that in my experience, the vast majority of lawyers are the most ethical people I know.  There are many things that lawyers are ethically prohibited from doing due to ethical rules and rules of professional conduct that are not applicable to other professions or businesses. Those lawyers who do not abide by those rules are the ones who make the headlines, but again in my experience most lawyers are ethical, trustworthy, respectful, and of strong moral character, and society as a whole might benefit from having to abide by the same ethical code that lawyers are bound to uphold. Just Because You Can Does Not Mean You Should.  Whether it is firing off that angry e-mail (or even worse, a text), filing a particular motion or taking some other action that you...

25 Lessons in 25 Years – Part IV

25 Lessons in 25 Years- Part IV               As we march forward towards number 1, we continue to get great feedback and comments on the first three installments in this series.  I was recently approached by a colleague who offered this bit of wisdom based upon his own experience (which is a few more years than mine): “The older I get, the easier it is to say ‘I don’t know’”.  I love that, and it is very true.  I wish I had thought of it!             Remember that these are not in any particular order, except for number 1, which will be revealed in next week’s post.   Here are lessons 6-10 from 25 years of practice: Shades of Gray.  Some people like to talk in terms of things being black and white.  In my experience there are no such things, and everything is simply some shade of gray.  Almost always the “truth” will lie somewhere between the two extremes: sometimes closer to one than the other, but never lining up exactly on all points on one of those extremes.  As a recently retired bankruptcy judge loved to remind people in his court, no matter how thin you make a pancake, it always has two sides.  That is very true in all aspects of the law, and it is good to keep in mind and to remind clients of as we work towards resolving whatever the particular issue may be. Stop.  Just Stop.  There is an old saying in the law that “About half the practice of a decent lawyer consists in telling would-be clients they are damned fools...

25 Lessons in 25 Years – Part III

25 Lessons in 25 Years- Part III     We continue to get great responses and comments to Parts I and II of my 25 Lessons in 25 Years.  It is clear that many of the lessons that I have learned through the practice of law are universal across life in many different occupations.   I am pleased to see people actually read these and hopefully they have some meaning to some of you.  With that being said, here are the next 5 of my 25 Lessons in 25 Years: I Don’t Care . . . .  . . . what the truth is.  Whatever the truth is, no matter how “bad” it is, so long as I know what it is, I can handle that in order to get the best possible result under the circumstances.  What renders me helpless and unable to assist is when I am told things that are not true, or that are not the “whole truth.”  I have been in trial when the truth, or at least some new version of the “facts”, finally comes out.  At that point I may as well have gone and played golf, because my credibility, and my client’s credibility, was completely lost.  If I had known the truth at the beginning, the case would have been handled far differently.  This lesson leads to the next, which is The Truth Will Come Out.  For whatever reason, in 99% of all cases eventually the truth will come out.  In my experience trying to dance around or ignore certain facts and circumstances through “sharp practice” does not work, and eventually the...

25 Lessons in 25 Years – Part II

25 Lessons in 25 Years- Part II       We received some great feedback to Part I of my 25 Lessons in 25 Years post. As mentioned in that post, 2017 marks my 25th anniversary as a lawyer.  I have decided to do a series of posts dedicated to certain lessons I have learned and how I have grown as a lawyer during those 25 years.  Some of these lessons are universal across life in many different occupations; other are more specific to the practice of law; and some are even more specific to the practice of law in Indianapolis/Central Indiana. Like everything else in life, some of these will be more applicable to you than others. So, without further delay, and in no particular order except for number 1, here is part 2 of the 25 Lessons in 25 Years.   Discovery.   “Discovery” is the name given to the process for the months and sometimes years that that lawyers spend asking questions of the opposing side about the facts of the particular case.  It is often very mundane, time consuming, boring and, unfortunately, very expensive.  With all of that being said, it is also critically important, and I did not understand how important it truly was until my first “solo” jury trial when, shortly after opening statements, I realized the number of questions to which I did not have answers that I really wished that I did.   Therefore, when you wonder why lawyers spend so much time on discovery, it is so that they can be as prepared as possible to try your case in court to try to get...
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