Written is Written

31 07 2017

As we all know, the horse industry is rife with people who operate without formal written agreements with regard to all sorts of things – sales, leasing, boarding, breeding and shared ownership, among many other scenarios. Why is this? Some would say it is because the relatively small community of horse people feel a kinship with each other and believe that we should be able to trust each other to do what we say we will do. Others say it is because in the horse industry there are more than the average amounts of individuals who want to engage in unethical conduct and they do not want any written evidence of it – or perhaps more common, they want the ability to change course later and then deny what they previously promised in oral communications. Whatever the reason, the habit of a large component of the horse industry is to do things solely via oral communications or, as some say, “on a handshake.”

Many articles have been written about the risks of doing anything on a handshake, especially entering into relationships as complex, nuanced and volatile as an equine arrangement. Yet the handshake arrangements persist and I receive several calls a month involving a disagreement which arose as the direct result of one party believing an agreement was A and another party believing it was B.

What many “handshake” agreement lovers do not realize is that just because you do not have a formal written agreement that says “Contract” or “Agreement” at the top of the page with the terms spelled out, you may still have written evidence of your agreement – albeit woefully inadequate evidence. Instagram comments, Facebook posts, Facebook Messenger messages, emails, text messages and other forms of electronic communication are indeed written communication. And in the absence of a formal legal agreement documenting your arrangement, the courts will look to this ancillary written evidence to construct its best guess as to what your agreement was. It happens over and over that people send messages, emails, texts or the like while emotions are high and then regret their comments (and misstatements) later. In the contract scenario, those emotional writings can really hurt your case if they are shared with a judge and/or a jury. While those very writings may be the only written basis for a court to determine the terms of your agreement, nine times out of ten those writings are not an accurate representation of what the parties agreed to.

Lessons to be learned here? First, have a written agreement for any transaction in which you engage in the equine world, no matter how small or seemingly insignificant. Ideally you would hire an equine lawyer to draft it, but even if you do not choose to do that, at a minimum write down (a) the legal names of the parties to the agreement; (b) the terms upon which the parties agree (as clearly as possible); and (c) have everyone initial each page and sign and date the end of the document. There is a lot of risk to doing it yourself like this, but it will (hopefully) be better than nothing. Second, do not communicate about your agreement via social media or email unless (a) you are extremely careful with what you say; (b) you understand the ramifications of what you are saying; (c) you have made sure what you are saying is consistent with any other things you have written about the situation (assuming what you said before was correct); and (d) you are willing to live with the consequences if you are wrong about your decision to communicate through these avenues. In short, it’s much easier to refrain from using social media to comment on any arrangement than it is to safely navigate social media. Social media commentary is written evidence of your agreement. Likely incomplete and sometimes emotionally charged written evidence, but written evidence nonetheless. If you can print it on a piece of paper, it is written. Written by hand or by a laptop or an iphone or an ipad is written, so do not forget it and be careful with your words!

If you get into a bind and need assistance or just want to ask some general questions to avoid getting in a bind, feel free to email me at dburch@rl-law.com.  I used to answer quick questions for free if I could, but I am getting so many calls for free legal advice that I am having to start charging a little something for an initial chat! A good problem to have, I guess 🙂 Starting January 1, 2019, I’m going to be charging $99 for a 30 minute general question session. You won’t be engaging me as your lawyer and we won’t talk specific names because that requires conflicts checks, etc., but frequently I can help folks a lot in 30 minutes. Can’t guarantee it, but usually I can at least give you some direction or general thoughts about a general type of situation. If you don’t hear back from me quickly, it’s not because I don’t love you or think you have a great question or because I don’t know the answer (usually), I’m probably just really busy and haven’t had a chance to email back.  You can check out our firm’s Equine Law Group at www.rl-law.com if you’re interested, and yes, in addition to providing what I hope are interesting and informative stories and information, this blog is also an advertisement for legal services.  I have to tell you that in bold, says the State Bar.


When You are Dealing With Horses Across State Lines, Be More Cautious Than Usual

16 10 2013

Oftentimes the horse you are considering buying or leasing is in another state. Or perhaps you need to send your horse for treatment or training in another state. Or you regularly show your horse in another state. What is the legal impact of crossing state lines in those situations? The various issues that can be impacted are many more than this article could cover in the allotted space, but hopefully we have highlighted some common concerns for you. Examples always seem to help illustrate these types of issues best, so we will use a few here.
Imagine that you live in North Carolina and you are looking for the perfect reining horse. You find an amazing two year old gelding prospect with a stellar lineage in Wyoming. His price is high, $75,000, but the Seller is a well-known and successful trainer who is willing to keep him for 6 months and put him into her intensive training program for you before sending him to North Carolina. Thrilled with your find and the proposed terms of the transaction, you hire a reputable, local Wyoming veterinarian to conduct a thorough prepurchase examination on him, including radiographs of all four legs and feet and he checks out beautifully. You make arrangements with the Seller to pay for him and for her to start him in her training program. Then you line up a shipper from Colorado to pick him up and bring him to North Carolina in six months on one of his regularly scheduled routes to the east coast.
What can go wrong?
Example #1: When the gelding arrives in North Carolina, he is fine at first and then goes lame on the left front. Your North Carolina vet checks him out, takes radiographs and advises you that he has significant navicular concerns and that there is no way that the Wyoming vet could have missed these concerns if he had truly conducted a thorough prepurchase examination with the radiographs you requested.
So it appears here you were the victim of veterinary malpractice.
Example #2: When the gelding arrives in North Carolina he is sound, but based upon his physical condition and his lack of education, he does not appear to have been in a training program for the last six months. The Seller claims he was in training and that you simply do not understand how to ask him to do what he has been taught to do.
So it appears that the Seller has failed to provide the training promised and thus has breached your agreement with her.
Example #3: You get a call when the shipper picks up the gelding after his six months of training and he confirms the horse is in great condition when the Seller puts him on the shipper’s trailer. The Seller contacts you and also lets you know the horse is in perfect condition when he gets on the trailer and even takes pictures on her iPhone and texts them to you so you can see how beautiful he is when he is boarding the trailer. The shipper advises you that it will be at least 3 days before he can get the gelding to North Carolina because of the distance and the need to stop and stable the horse overnight along the way. You try to contact the shipper every few hours to check on the horse and after the first day the shipper stops returning your calls or providing you with updates. You become concerned and the next telephone call you get is from a veterinarian in Lexington, Kentucky who owns an equine layover facility. Apparently your gelding was delivered to the facility for an overnight stay and when he was taken off the trailer he was three-legged lame with multiple lacerations all over his face and legs. The veterinarian asked the shipper what happened and he claims that the horse would not climb off the trailer for the last 36 hours so he just left him on and the horse apparently became agitated and thrashed around inside the trailer, hurting himself. In short, your gelding ends up spending a week in Lexington at an equine specialty hospital being treated for multiple injuries caused by the excessive time on the trailer before he can come home to North Carolina – and even then he may never be sound again. And because of the trailer trauma, the gelding understandably now has an intense fear of trailering and will have to be tranquilized in order to get him on any trailer in the future.
So this time the Seller is not at fault, but a shipper from Colorado has been negligent in shipping him and has caused harm to your horse.
The Common Thread
The common thread here is that you have a real, valid legal claim against another person or company who resides in (or is based in) another state. Can you sue someone in another state? Absolutely! You can certainly sue where he or she is located and maybe where you are located, depending on his or her relationship with your state (whether they do business there or have other types of connections there). And since the amount of your damages is arguably over $75,000, you may be able to sue in federal court as well if you and the potential defendant reside/are headquartered in different states.
So what is the problem? The problem is that is incredibly expensive to sue someone, period. And especially so in another state or in federal court. But when you add thousands of miles to the picture (or the complexity of federal litigation), the dollar signs keep increasing. Definitely in Example #1 (and perhaps all the examples) you will need to hire an expert to testify on your behalf about what was the proper thing for the defendant to do in your situation. Experts are typically very expensive (several hundred dollars an hour).
Also, in lawsuits you engage in something called “discovery” which involves, among other things, taking depositions of key individuals in the case. To take someone’s deposition, you are generally required to go where that person resides. That could mean traveling with your lawyer (who is also expensive) to Colorado or Wyoming (and perhaps Kentucky in Example #3). Out of state depositions typically cost anywhere from $2,000-$5,000 per person by the time you factor in all related expenses.
The bottom line is that pursuing someone in another state is extremely expensive, so you should take as many precautions up front as possible to make sure you minimize the chance of a legal claim (e.g., have two different veterinarians do pre-purchase examinations if the horse is expensive; buy health and mortality insurance on the horse before shipping; carefully research shippers and check several of shipper references; and buy travel insurance for the trip from Wyoming to North Carolina). In short, be very, very careful when entering into transactions over state lines so you can avoid the stress and heavy expense of an interstate legal dispute.

If you get into a bind and need assistance or just want to ask some questions to avoid getting in a bind, feel free to email me at dburch@rl-law.com. I often will answer a short and simple question for free if I have time and know the answer off the top of my head! If you don’t hear back from me quickly, it’s not because I don’t love you or think you have a great question or because I don’t know the answer (usually), I’m probably just really busy and haven’t had a chance to email back. And you can always buy the first hour of my time for $250 (my usual hourly rate for 2013 is $325). Lots of folks will save up all their equine (and some corporate or real estate) legal questions and short documents and sit with me for an hour and we will do as much as we can during that hour and it’s only $250. You can check out my Twitter feed @nchorselawyer as well as our firm’s Equine Law Group web page at http://www.rl-law.com/equine if you’re interested, and yes, in addition to providing what I hope are interesting and informative stories, this blog and the Twitter feed referenced above are also advertisements for legal services.