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No Writing--No Justice

Texans love to say that a handshake deal here is good-as-gold. We love to talk about how binding a person’s word is. But, unfortunately, well intentioned people sometimes remember those deals differently. Or, sometimes well intentioned people say one thing, but really mean something else. Misunderstandings or “misremembering” ultimately leads to conflict. Those conflicts destroy otherwise healthy and long-lasting friendships. And, the absolute worst part of this involves the public airing of all the parties’ personal business in open court of law.

Courts of law, however, are the last place someone wants to go seeking justice. Jury members are imperfect human beings just like the rest of us. The imperfect human from the long line of potential jurors lining the courthouse halls is the same imperfect human that ends up in the jury box. Nothing magical happens when someone’s juror number gets a call to take a seat in the jury box. The same biases and prejudices a person walks with up the courthouse steps are the same biases and prejudices that imperfect person will use to decide your case. No jury instruction can fix that. Diversity in the jury pool does not fix it either. Even the most diverse jury imaginable can return ridiculous verdicts. That can be especially true in a civil matter.

The human imperfections do not live in the jury box alone. In Texas, we elect our judges. Lawyers will argue your case zealously before trial. The lawyer’s hope is that a judge will apply the law to your facts and rule in your favor. Yes, a judge can rule on a case and issue judgment even before trial. Unless the judge finds any “question of material fact,” whatever that means. And, if a case goes to a jury—even when a jury delivers the most ridiculous verdict you ever imagined—that judge is going to smile politely at them, thank them for their service, and ask everyone to rise as they leave.

The moment that jury leaves, one lawyer will preach the great wisdom of the founding fathers, and the other lawyer will write a senator asking for a constitutional convention to end the Seventh Amendment. A few weeks later, that same pair of lawyers will change their thinking when a different jury gives a different outcome. In reality though, both lawyers will be ever grateful for the “enforceability” of a verbal agreement.

Here is the problem. Verbal agreements are enforceable, but entering into one brings nothing but uncertainty for the parties. Emotion tends to influence a jury much more than any other factor when a jury decides the outcome in a case on verbal contracts. Only a well-written contract with all the legal elements and clearly defined terms can survive emotional and subjective interpretation by courts and juries. Here, notice my choice of words. I said, “can survive.” I did not say “will survive.” Even contracts with clear, unambiguous language receive ridiculous interpretations in the courts. So, what should you do?

While nothing in the world of “contract interpretation” is an absolute certainty, a thoroughly vetted “alternative dispute resolution clause” in a contract can expedite outcomes which are closer to the outcomes the parties contemplated when the parties formed the contract. Mediators and arbitrators usually have industry specific experience. That experience allows mediators and arbitrators settle the dispute with much less emotion and with an outcome that aligns with the contractual intentions and obligations. The end of a mediation or an arbitration brings finality. Parties can look to the courts to enforce the agreed settlement, but the courts are not likely to change the outcome unless the settlement is illegal. When you look to a court to enforce verses interpret, the Court can do its job without the burden of interpretation and emotion. Then justice is blind—as it should be.

Joseph “Jody” LaFleur

Winborne LaFleur PC

Waxahachie Texas | Flower Mound Texas



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