About Me

My photo
Rachel Kosmal McCart is a lifelong horsewoman and the founder of Equine Legal Solutions, PC, an equine law firm based in the Portland, Oregon area. Rachel is a member of the New York, California, Oregon and Washington State bars and is admitted to practice before the U.S. District Court for the District of Oregon and the U.S. District Court for the Central District of California. Rachel currently competes in three-day eventing.

Tuesday, September 14, 2010

More Reasons Why Drafting Your Own Horse Contracts is a Bad Idea

In an earlier post, I covered the top three reasons why drafting your own horse contracts is a bad idea.  Today, reviewing a client's horse boarding contract, I was inspired to add to the list.  This client is educated, articulate and has owned a boarding stable for years.  She has some excellent ideas about stable management.  Yet, in drafting her own boarding contract and liability releases, she made some critical mistakes.

(1) A Patchwork Contract is Only as Good as the Raw Materials

While lawyers often do create contracts by using pieces of other contracts, they do so very carefully, and the contracts they start with are usually high quality and often drafted by the lawyer who is now using them to create a new agreement.  In contrast, when a non-lawyer drafts a contract, they typically use examples they find on the Internet or get from their friends, and then add some of their own language.  The contracts they find may not be drafted by a lawyer, and even if they are, chances are excellent that the lawyer didn't know much about horses.  The contracts may not be well-written, and even if they are, they may be totally irrelevant to the client's situation.  And as for the language that the clients draft themselves?  It's almost always a disaster.  Even if the client does have a master's degree or a PhD - they just don't have the training and experience that a lawyer does.

(2) Patchwork Contracts Require Skilled Editing

When non-lawyers cobble together their own contracts from pieces of other contracts, the pieces don't usually match.  There are often missing section references, cross-references to sections that don't exist, and capitalized terms that aren't defined anywhere.  Some of the language doesn't make any sense, and some of the terms even contradict each other.  Simply put, the contract ends up being confusing.   

In contrast, part of a lawyer's job is to make sure that a contract flows well, all the cross-references are correct, all capitalized terms are accurately defined and that the contract uses terms consistently throughout. Lawyers get paid to read every single letter and number and make sure there are zero mistakes.

(3) Why Confusing Contracts Can be Fatal to the Client

When a contract is ambiguous, and the parties disagree about its meaning, courts typically side against the party who provided the contract. So, for example, if a boarding contract never defines an important term, or one term contradicts another, the courts will likely side with the boarder's interpretation of the contract.

(4) Liability Releases Contain Magic Language

Enforceability of liability releases is a continually evolving body of law.  Legal cases upholding or tossing out liability releases are decided every day, and frequently, they turn on very subtle language differences.  It's a lawyer's job to keep up with the case law and make sure the latest "magic language" is in the liability releases they draft.  In contrast, non-lawyers have little idea what makes a liability release enforceable, and so they tend to just copy release provisions that "look legal."  Often, those provisions are written in legalese which, contrary to what the non-lawyer might believe, actually undermines the release's enforceability. 

Very often, non-lawyers copy liability release provisions from various contracts and don't pay enough attention to the parties named in the release.  As a result, a boarding contract for "Star Stables" can contain release provisions that refer to "Pacific Stables" and never mention Star Stables anywhere.  Or, Star Stables might be named, but not its owners, employees, etc.  Anyone not named as a released party won't be able to enforce the liability release, which means it's open season for ambulance chasers.  That's a pretty big oops!
More information about what makes an equine liability release enforceable.


Paul said...

Right you are, Rachel.

Some of the best stables in terms of horsemanship can be the worst offenders.

The liability releases and hold harmless provisions are key, and vary on a state by state basis. The law is also subject to change.

Was it John Arbuckle who said:"You get what you pay for"?

Paige said...

Man I hope people take this seriously---I am constantly contacted people who say they had a contract so lets sue em----then I see the mess they have made.

It hurts my head, because saving the contract drafting money always causes a much bigger expense, along with a jillion other problems.

I guess no one likes a lawyer until they need one

Good luck spreading the word!