This contract tip is about complying with contracts during an ongoing dispute.
"Always wear the white hat." That was the advice I learned as a young lawyer. In old movies, the cowboy with the white hat was the good guy. The one with the black hat was usually more dastardly.
When in a dispute, we want the judge, jury, or arbitrator to perceive our client as the good one, the innocent victim of the other side's mistakes and bad acts.
What does this mean in practice?
- No nasty emails.
- Pay undisputed fees.
- Be ready to perform required tasks.
- Hold up their side of the bargain.
This is not blanket advice for every situation. Each case needs to be assessed, which may lead to a different approach.
But absent special circumstances, I tell my clients that they should not start acting badly and blatantly breaching the agreement just because there is a dispute and they think the other breached first.
The reason?
What if my client stops performing, relying on the other side's prior breach, but the decision-makers disagree that the counterparty breached first?
These decision-makers may conclude that it was my client who was the one who breached first, giving the counterparty a right to damages.
Play it safe and be nice.
What advice do you give your clients about performance during a dispute?
