I watched a webinar this morning where the presenters addressed ESI Protocols.  They were well-informed people sharing sound advice; but it underscored for me why people despise lawyers.  A presenter counseled, “Always build an escape clause into whatever you agree to.”

The speaker meant, if you commit your clients to a protocol provision, and you later find that the client or its service provider can’t or won’t do what was promised, you need to incorporate a “fingers crossed” way to back out of the deal.

Many readers—lawyer readers certainly—will count that as inspired advice. They’ll posit, “Aren’t we protecting our clients when we spare them the hardships of an improvident agreement?”  In truth, the risk of being bound by obligations that could prove more onerous or expensive than anticipated is the number one objection I hear voiced when I advocate for use of ESI Protocols.

Who wouldn’t want to walk out on their obligations when the going gets rough?  It’s human nature to crave the benefits of a bargain without its burdens; but just try to run a restaurant where everyone walks the check!

The law has a term for what accounts for the difference between a fair deal and a debacle: it’s due diligence.  Competent counsel should know the capabilities of both clients and vendors before agreeing to an obligation that hinges on the capabilities of our clients and vendors. 

Counsel who agrees to something because he didn’t understand the implications of the agreement won’t want to own that.  He will point the finger at anyone and everyone except himself.  That, too, is human nature, albeit not a pretty predilection.  But let’s face facts: Those lawyers weren’t tricked; they were uninformed and unprepared.

That said, not all unforeseen consequences of an ESI Protocol grow out a lack of diligence or competence.

People make mistakes. You do.  I do.  And when we do, the question becomes: Who should bear the brunt of our mistakes?  And when should the consequences of our mistakes be limited by proportionality and (for lack of a better term) mercy?

Long before I became an attorney, some canny counsel decided that the optimum legal advice to a culpable client was to admit nothing, don’t apologize, deny, deny, deny and mount a strong offense as your best defense. Perhaps that’s why lawyers are the last bastion of characters cast as vile stereotypes in the movies without outcry.  Okay, lawyers and Nazis.

If experience means anything, mine suggests that what passes for good legal advice is lousy life advice.  If you made an honest mistake in agreeing to a provision of an ESI protocol, the optimum path is to own it and seek to make it right.  Sometimes your opponent will relate and work decently to renegotiate the terms. Often, the Court will come to your aid if it’s clear you made a good faith mistake and you own it. Rarely, exceptionally, your client must endure some hardship for the error. 

In every case I’ve come across in the last 42 years, that final, onerous outcome coincided with a profound lack of competence or diligence when the deal was struck, the poster child being In re Fannie Mae Sec. Litig., 552 F.3d 814 (D.C. Cir. 2009), but also a line of cases where it’s hard to explain the outcome save for the absence of due diligence, e.g., McCormick & Co., Inc. v. Ryder Integrated Logistics, Inc., ___ F.Supp.3d ___, 2023 WL 2433902 (D. Md. March 9, 2023)

We speak reverently about “the Rule of Law;” but that rule begins within each of us, in our character and commitment.  The notion of including a clause in agreements to escape obligations when they become inconvenient is troubling and erodes the integrity of agreements and the foundations of a functioning society.