Saturday, December 30, 2006

I Fell Into a Pit of Striking Vipers: Tales of Crazy Makers, Liars, and Deniers

Dealing with crazy makers, liars, and deniers is a fact of life for most of us, but most of us really don’t have the understanding or the coping skills to respond accurately when confronted with these negative behaviors. We all want to trust people that we love and work with. Unfortunately, life’s realities have a way of impacting even the most optimistic, positive, and trusting folks.

I once was told that the business of lawyering is really about understanding human nature. I agree. But, I would take it a step further and say that all successful businesses are built on understanding and accepting human nature. The same is true of most enduring relationships.

A working knowledge of common personality disorders, mental illnesses, brain injury issues, addiction problems and how to define personal boundaries is a necessary tool for modern life. These are tools that are useful in identifying and responding to certain rather unpleasant events. While it may help emotionally to have this knowledge and it may serve as a reality check for one or both parties, it still doesn’t help on the legal front. And, what happens when you’ve done your best and you still find yourself in an intractable situation with someone you trusted enough to enter into a relationship with but that relationship has now gone sour?

Arguably, most law is nothing more than a series of default contracts designed to help people deal with relationships gone bad. However, the default provisions of the law may or may not provide protection for one or both parties despite vast bodies of statutes designed to provide some stability for the greater community at large. And, for a large part of the population the statutory defaults are the most effective and low cost option. But, if important issues and high stakes are involved wouldn’t it make sense to protect yourself with a written contract?

In many cases to have any rights of recourse (enforcement of a promise) at all under the law, written contracts are required. These are the classic Statute of Frauds requirements for “writings:” marriage contracts, contracts over one year, some types of commercial contracts over a certain dollar amount, contracts pertaining to the sale of land, and promises to pay on behalf of another. Denial comes into play when we tell ourselves that there is a good reason not to have a formal agreement memorialized in writing. Some of those reasons may include a perceived need for “flexibility,” an idea that not having the agreement in writing will save money or time or a relationship, or, in some cases lack of formal written agreements are a tool used to create openings for pure opportunism.

There is an old saying that all is fair in love and war, and, in modern life, most people have extended this to include finances as well. Thus, the chances of any verbal contract agreement between parties falling apart are high. Put two or more people together who are incapable of acknowledging or accepting accountability for oral contracts and you will have the modern day equivalent of falling into a viper pit. The party with the most power, endurance, or resources usually wins due to attrition, but incurs substantial damage as well. Let the vipers beware. Happily, for the rest of us there are written contracts.