Avoiding the #%&^%!& Swearing Contest


By: Seth F. Kirby
In the course of defending professionals in all manner of disputes, a common theme is often repeated.  It usually involves some variation of the former client (now plaintiff) claiming that they “were told” or that it was “their understanding” that the professional would do something different than what actually occurred.  While these claims are obviously self-serving, if the client is willing to swear under oath that oral communications with the professional occurred, we can end up in a swearing contest in which a jury may have to determine the credibility of the competing testimony.
Thankfully, the law does not always allow alleged oral communications to alter contractual relationships or create legal duties.  Indeed, depending upon the circumstances and applicable law, claims of oral representations may not be allowed to impact the duty owed to the client at all.  Nevertheless, the ability to attack the credibility of claims based upon oral representations in as many way as possible is an invaluable asset in the defense of the professional.
As defense counsel, I am always pleased to review a file in which the professional has taken careful steps to outline the scope of their representation and to confirm, in writing, what was discussed or agreed upon in the transaction.  For attorneys this usually takes the form of engagement letters issued at the outset of the representation that are followed up with reports to the client in which the various options are presented and the decision on how to proceed is confirmed.  For insurance agents, it can be policy summaries (assuming that they are accurate) that discuss the policies that were considered, obtained and/or rejected.  That summary is then followed up by a letter which forwards the actual policy issued and a warning to the client to read the policy and ensure that it conforms to the client’s expectations.  The existence of these types of confirming documents often stop a threatened claim in their tracks (i.e. pre-suit).  When claims of oral representations are made which contradict the written confirmations, they are met with great skepticism, if not outright rejection, by judges and juries.
As they say, an ounce of prevention is worth a pound of cure.  Professionals of all stripes should create and implement procedures in which their scope of responsibility is defined from the outset and the client’s buy-in to decisions is confirmed contemporaneously.  Let us know if we can help you with implementing such procedures.
If you have any questions or would like more information, please contact Seth Kirby at