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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 not a reasonable interpretation to say that such an offer included all of the assets of the oil company (apparently worth nearly $80,000,000), but instead was focused simply on the individual pieces of real estate.
Two of the judges agreed with the individuals, while one agreed with the oil company. This type of situation has been evaluated by other states, and the Court of Appeals noted that 21 other states agreed with the individuals’ interpretation of the contract, i.e. that a right of first refusal cannot be part of a larger sale agreement because it would essentially negate the right of first refusal.
Once again, it is always interesting to see how people can read the exact same contract, and in this case even agree that the “plain meaning” was “unambiguous”, yet disagree as to what that “plain meaning” is. In this case, the individuals were successful in bringing their action and therefore it will be interesting to see how exactly their individual parcels of real estate are valued, given that they were not individually sold. There are always practical implications from these court decisions, many of which the Courts of Appeal never have to deal with.
The oil company did attempt to appeal this decision to the Indiana Supreme Court, but the Indiana Supreme Court refused to hear the case and therefore this decision is now final.
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 could rationalize and justify, just because you may have the right to do that does not mean that you should. As noted in some of the earlier lessons, it is a round world and you may need a favor from your opponents someday. In addition, you may actually be wrong in your initial emotional reaction to whatever the situation is. With our ability now to instantly communicate, we could often regret the e-mail or other angry response that we fire off when something has upset us. A good rule of thumb is when feeling that way, write out the e-mail, letter, or text, and then set it aside and at least wait until the next day to read it again and decide if you really want to send that communication. Often times the answer will be no, or at least you will edit it significantly to tone it down. Furthermore, the nuances that we can convey in a conversation are often lost in a short written communication. Again, this is not limited to written communications, but just to the things that lawyers have the ability to do in various situations, whether it is in court, meetings, or other situations. There are many times where the lawyer could do something, but through the exercise of sound judgment realizes he should not.
- The Best Thing to Know is to Know What You Do Not Know. When you first start practicing law, there is a lot of legal knowledge that you have gained through law school. This does not mean, however, that you know anything about practicing law. Too many people think that they know it all, and want to act like they know it all. A much better course (in my experience) is to admit (to yourself first) what you do not know, and then be willing to ask questions, listen to other more experienced lawyers, research, and be willing to learn and accept the lessons that are being taught to you through the day to day experience of the practice. Through that process you become better at what you do, no matter what it is. I think this willingness to admit that I knew virtually nothing when I started has helped me tremendously through the years. This is one of those lessons I suspect cuts across all different professions and occupations.
- Professionalism Never Goes Out of Style. A lot has changed in 25 years about how we practice law on a day to day basis. One thing that has not changed, and hopefully never will, is that those lawyers who are courteous and act like true professionals are respected, admired, and ultimately are the most successful lawyers in the eyes of their peers. The lawyer whose word is his bond, who is always willing to listen, to assist, and to counsel not only clients but also other lawyers and just people in general are the lawyers who truly become the most respected members of this profession. It does not take any more effort to be a true class professional than it does to be a complete jerk, and your reputation will be your one lasting legacy, and you only have one of those. No matter how the law continues to evolve and change through technology and otherwise, there will always be room for the true professional.
- Be Yourself. To be the best lawyer you can be, you need to be yourself. You should never try to act like you think a lawyer is supposed to act; the way lawyers may be portrayed on TV or in the movies; or in a way you think your boss or clients expect you to act. One of my early mentors taught me this lesson early on and I continue to believe it was the best lesson I have been taught in my career. Here is that story:
I was in my first or second year of practice at a litigation firm. I was just staring the process of taking depositions in cases, and was inexperienced enough that the senior partners were still coming into the depositions with me to make sure I did not totally screw up everything. I had taken my first deposition with a senior partner whose personality was very similar to mine. That went fine. The second one was for a different senior partner/mentor, who has a far different style and personality than I. While he certainly is every bit as ethical and professional as any lawyer I have ever met, he is more comfortable with a more aggressive and confrontational style of representation. Knowing that, I attempted to take on that same personality in the deposition so as to impress him. It was a disaster. While it certainly did not affect any outcome in the case, and ultimately we got through the deposition, certainly I and others in the room knew that it had not gone well.
As we walked back to the office, my mentor called me into his office and asked me to shut the door. It was at that point that he taught me this lesson: “You have to be yourself. You went in there today trying to be me, and you are not me. I can be a real pr**k sometimes. I kind of enjoy being a pr**k; I am pretty good at being a pr**k; and it is the way I handle these things. You are too nice to be a pr**k, so don’t try to be one. Be yourself, lawyer the way you lawyer, and you will be far better at being a lawyer that way than trying to do it the way I do it.” Instantly I felt relief that he had shared that lesson with me and allowed me to do things “my way” as opposed to trying to do them the way I thought he wanted me to do them.
Again, this undoubtedly is one of those lessons that cuts across all walks of life, and we all have to be true to our nature because if we try to behave in a way that is inconsistent with who we really are, ultimately we will fail. That lesson has stuck with me throughout my career and is one that I have shared with many other lawyers and other professionals, and I have never heard anyone disagree with it. I will be forever grateful to that mentor for teaching me that lesson early on.
So there they are: my “Top 25” if you will. I again appreciate everyone reading these lessons and sharing your thoughts back with me. As always, feel free to comment to this and add your own thoughts on lessons that you have learned in your own careers.
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 and should stop.” I previously talked about how expensive “principle” is. In addition, there are times where a would-be client comes to you and is considering hiring you, and every instinct from your training and experience tells you that the would-be client should walk away from the particular transaction or situation. I can recall one instance in particular where my advice was for this individual not to buy the business from his father, because one of the stipulations from the father was that the stepmother needed to stay employed by the business, and the would-be client did not have a very good relationship with the stepmother. My advice was for the individual to think long and hard about whether or not he actually wanted to buy this business or agree to those particular terms. I never did hear back from the prospect, and suspect that he either did the deal without our involvement, or perhaps he took my advice and walked away. Nevertheless, I felt good about giving the advice that he should not go forward with this proposed transaction. Again, trusting my gut instinct, it was the right advice to give at that time.
- Judges Will Get to the Result That They Want. Often times clients will come to us believing that there is absolutely no way that they could lose the particular lawsuit. We remind them that judges are people too, and are unlikely to see the case exactly the way the client sees it. In addition, a judge is going to want to get to a particular result. The recently retired Hon. Richard Posner of the 7th Circuit, one of the most respected judges in the country, recently stated as much in this interview following his sudden retirement. So before making any proclamations about what a judge “has to do” in a particular case, remember that judges will have their own set of beliefs and experiences, and those will be different from yours and from the client, and all of that will contribute to the ultimate result in the case.
- Nothing Like the Facts . . . . There is nothing like the facts to mess up a really good argument/lawsuit. There have been too many times to count where but for one or two particular facts, there would be a really good lawsuit or at least negotiating position to take. However, all of the facts matter and, because the truth always will come out eventually, those facts will get in the way of what might otherwise be a tremendous result for the client. While lawyers would love to be able to file a “motion to change the facts”, so far in my 25 years no judge has allowed that to happen. You play the cards that you are dealt, and do the best that you can. If only we could change a few of those facts or, stated differently, have a few of those aces up our sleeve, the practice of law would be so much easier.
- You Cannot Make Senior Partner in a Year. We live in a world of instant gratification. Nearly everything we want we can get in just a few keystrokes, a phone call, or the press of a button. As a result, we forget that some things still take time, and learning the things you need to learn to be viewed as that trusted, sage counsel, can only come with time. The point is, I am a much better lawyer now than I was in 1992, not because I am any smarter, but because I have been doing it and experiencing the ups and downs for 25 years. Just like a child does not walk perfectly on the first attempt, but after years of walking will do it automatically and without having to think about it, so too is the law practice. To get where you want to be in life just takes some time and cannot be rushed. Like so many of these lessons, this was a difficult one for my Type A, perfectionist self to accept.
Next week, the Final Five . . . .
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 full story is told, or a judge or jury sees the situation for what it really is. Again, because the truth is going to come out, let’s deal with it head on right from the beginning.
- Some Clients are Just Not Worth It. As mentioned in lesson #25, practicing law, where you are often being asked to handle or perhaps solve problems that are not of your own making, is stressful enough. There are certain clients who will never be satisfied with anything you do, will complain about the bill (unless you work for free and then they will complain about the quality of the work), and you will live in constant fear that the client will sue you later for malpractice. Life is too short; let them go yell at someone else. And how do you know who these people are? . . .
- Trust Your Gut. Not only when looking at whether or not to represent someone, but in all aspects of your professional life, trust your gut. That instinctual feeling is correct much more often than not. Of course, this lesson applies in all aspects of life. When faced with a difficult choice, take a breath, be silent, and listen to what your gut is telling you. Then follow that advice and do not look back.
- Because You Never Know. I mentioned earlier that cases settle because anything can and usually does happen in court. One of the more consistent patterns I have noticed is how often times those people who you think will make the best witnesses get nervous and flustered or otherwise do not do well as a witness at all. Other people, who you have put on the witness stand only because you feel like you have to, and you are terrified about how they will present, turn out to be wonderful witnesses. When you go to court, you just never know . . . .
Stay tuned for Part IV next week.
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 the best possible result, but understand that they do not enjoy the process any more than you do having to wait around for it to be completed.
- “Legalese”. Many contracts go on for pages and pages and even very educated people will look at those and become quickly overwhelmed and complain about all of the “legalese”, which is their term for a lot of words that they claim to not understand. I am here to tell you that the vast majority of those contracts, if you really take a few minutes to read them, actually are written in English and the legalese is something you can understand. I promise.
- Trials are Not TV Shows. Any lawyer who has ever tried a case in court or even taken a deposition will admit that often times you remember certain questions that you wanted to ask, or think of the best questions that you should have asked, on your way home from trial or the deposition. These are not like a TV show with an army of writers who can collaborate on a perfect script for you, and you do not get multiple “takes” to try to make everything perfect. You get one shot. It is a live performance and so things get forgotten; mistakes are made; and you just do the best you can on that particular day.
- Experienced Judgment. Successful lawyers have great judgment and intuition about what advice to give; great judgment comes from years of making the wrong choices or the wrong advice. Enough said.
- Trust. When people do not trust each other, it is almost impossible to negotiate a contract, settlement agreement, or get much of anything done. It is also incredibly more expensive to try to work through a situation, even if it is litigation, when the two sides do not have any level of trust for each other.
So that is 10 lessons down with 15 more to go. If you have any of your own suggestions to add, please feel free to comment.