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Pre-Emptive Diligence - Avoiding Litigation
Bryan G. Embree
Bryan G. Embree
Bryan joined Cobb & Jones LLP in 2005 and practiced law in the areas of civil litigation, including corporate and commercial litigation, employment law and administrative law, and matrimonial litigation from 2005 - 2010.

Pre-emptive Diligence -- Avoiding Litigation and Personal Strife

Some people are diligent to the point of being almost obsessed with precision in all matters legalistic. There are others, however, who actively avoid potential confrontation because they are concerned about being offensive to others. I am proposing here that those of the latter type become more like the former when it comes to legalistic matters. The law does expect that people will act in their own interests and be diligent about it, and may hold those accountable for their failure in this regard if litigation ensues.

RE: Contract matters: It is surprising how frequently people (even in business) engage in exchanges with no written contract. Obviously, a written contract is preferable to the oral contract because if there is a dispute at some point, the written document can be used as evidence of the intention of the parties to the agreement. The written contract is a pre-emptive measure that is effective in at least three ways. First, it causes the parties to specify exactly what the exchanges will be about, or what the purchaser will receive in exchange for his or her money under the agreement. Second, the exercise of writing it out causes both sides to think about what they expect to get from each other in the exchange, and to be precise about it. Third, in most situations, the written contract pre-empts litigation by making the opportunity for significant misunderstandings much less likely. The written contract, however, is often avoided because people think that it is offensive to the other party to ask for a written agreement as it is felt that they are saying "I don't trust you" in the process. The reality is, however, that both parties benefit from the written contract and it should not be considered offensive by either party. It is protective of each party's interests, equally. It is pre-emptive diligence.

RE: Estate matters: Another common area of problem is when there is no Will defining who will be responsible for the administration of an estate, and how the estate will be distributed to beneficiaries. As with written contracts, there is a tendency to want to avoid writing a Will for at least two reasons. First, the person writing it may feel torn about how they wish to distribute their property to various beneficiaries, even if it's equally, and it just to avoid the decision. A second common problem is that people feel superstitious about the process. It is not uncommon for people to feel as if writing a Will actually represents some premonition about their own imminent death, and is therefore avoided.

The end result in not writing a Will (dying intestate) is that the family left behind must decide who among them will administer the Estate, and may argue about who should get how much given that so-and-so did this-or-that for or to the deceased. This can bring out hostilities among family members deriving from unresolved, familial issues, much of which is avoidable by directing matters through a Will, even if it is an equal distribution as occurs in an intestacy.

There are "human" reasons why people avoid written contracts and writing Wills, but pre-emptive diligence in these areas can reduce significantly the probability of litigation and personal strife.

Bryan Embree is an associate at the law firm of Cobb & Jones LLP

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