Best Efforts

by Sean M. Broderick, CCIM

Commercial Real Estate Broker

Author website

Case law recognizes that a “best efforts” clause does not obligate the promisor to “spend itself into bankruptcy,” Bloor v. Falstaff Brewing Corp. But it seems like it when your clients find themselves in litigation, even if the claims against them seem ridiculous. I had an old football coach tell me, “Never argue with a fool, because an innocent bystander can’t tell the difference”, but I don’t think that saying applies to the courts.

It appears to me that the more the fool argues his case in front of a judge, throwing as much case law against the wall as possible hoping something sticks, the greater traction his ridiculous argument seems to gain with the court. After watching this practice in action, it appears to me that there is a professional courtesy among attorneys and judges, allowing those drowning in their own legal quicksand enough leeway to spew case law onto the court, like a lifeline they can use to extricate out of the mire, saving face with their clients.

If you’ve ever seen the episode of Man vs. Wild with Baer Grylls in which Baer voluntarily walks into a pit of quicksand, you’ll remember that it takes a certain skill, patience and effort to extricate oneself out of a “jam”. While remaining calm, one must get as much surface area on top of the quicksand without penetrating too deep. In my observations, it seems that the struggling attorney fights to gain “surface area” with the court without allowing any part of his case to penetrate too deeply into the mire, a practice which most judges will allow with some latitude.

Remembering my Physics 101 class (at least I think it’s Physics), every action has a reaction and every argument presented to the court has an appropriate response. Thus, every case law and ridiculous argument must be responded to preserving that your opponent remains mired in legal quicksand. These responses cost time and money, money that your clients must consider prior to entering into any litigation, if they have a choice.

One benefit to commercial litigation (if there is one) versus litigation in an emotionally charged residential transaction is that most commercial litigation can be solved with a check. The amount of which is a function of who finally recognizes who has the greater surface area on top of the quicksand. Stay tuned.