Expletive Deleted

Expletive-DeletedBy James L. Goldsmith, Esq.

In news and other articles, another’s profanity is frequently replaced with “expletive deleted.” Some use the term in self-censorship. More often, we just let the expletives fly. At that moment it might feel quite good to do so; upon reflection, not so good. Realtors® hold no ownership on profanity or expletives deleted, the inspiration for this article did, however, arise in the context of a Realtor®-related dispute.

The matter involved the termination of a broker- salesperson relationship. The salesperson was moving on and the broker was quite unhappy. A dispute arose over payment for transactions that were pending at the time the salesperson gave notice, and about other money matters and file possession. The details matter to the disputants, but not so much to us.

The aggrieved salesperson enlisted the aid of an attorney who, like many of us, believe that every effort should be made to spare a brawl. He wrote to the broker and explained the issue from his client’s perspective and made a financial demand to be exchanged for a release from further liability.

Replies to a demand are best fashioned once one has cooled off. The broker, however, was not of this mind and before reading the entire letter called the attorney and let him have it. Expletive deleted. Expletive deleted. Expletive deleted.

Not unpredictably the broker’s call did not bring the lawyer to his knees or send him packing. Instead, the lawyer hastened to sue the broker and brokerage. The broker assumed his errors and omissions insurance policy would cover the costs of defense and losses, if any. It did not. The matter was not asserted by a consumer claiming to have been harmed by the Realtor®’s malpractice. By the time the insurer declined coverage, the broker was beyond the 20 days provided to respond to the complaint. The lawyer sent a 10-day notice of intent to take a default judgment and assured the broker, in writing, that there would be no extension of time for any reason (most lawyers will grant an extension). It seems that the broker’s initial telephone call had left its mark!

It was I who was ultimately engaged by the broker to defend the suit. Noting the notice of intent to take a default, I immediately called the Plaintiff’s lawyer and after introducing myself and the matter in which I had been engaged, I was cut off. There followed a well-articulated harangue about what an EXPLETIVE DELETED my client was! I would receive no courtesy (no personal animosity intended) and that the lawyer and his clients would not capitulate, mediate or take any action that might resolve the matter without my client having to pay the maximum penalty. Further, as a result of my client not deleting his expletives, but instead letting it all hang out there in that call, the agent was going to the Real Estate Commission to file a complaint.

In my 40 years of practice I have had exchanges with opposing counsel that had been, expletive deleted, miserable. But I know I will not make another attorney unball his fist because of what I say. While their credibility may be markedly diminished in my eyes due to their rants, I do not reply in kind. “We will agree to disagree” conveys enough.

I know my broker client will spend much more in attorneys’ fees because of that call. My broker client has lost the ability to compromise a claim because of that call. My broker will suffer a slight loss of credibility in the eyes of one or a few folks because of that call.

Animus is not our friend. A heightened emotional state can bring out the worst. We reveal information we might otherwise hold back. We arouse anger in others and jeopardize compromise that might be in our client’s best interest.

So what to do when the position taken by another player in our transactional setting is annoying if not angering? First, take a chill pill. Feign another call or a situation that calls for you to remove yourself from the conversation. Cool down and call back later.

Second, orient yourself. The transaction is not about you, but rather your client. The client bears the fallout though you may lose a fee. Divest yourself of some baggage by understanding who it is that benefits or loses from the situation. Client disappointment comes with the territory. While your client deserves your best effort, this is not a situation where a ship is sinking or you are losing a loved one. Stay oriented.

Third, take advantage of your adversary’s emotional state. Let him or her talk. You might get something. Ask for the basis of their position: “I’d like to understand your position and will give you the floor and listen to the reasons by which you conclude . . .” Ask for supporting articles or citations that support their position. I’d prefer to see the cards my adversary is holding so that I can best prepare a course that will most benefit my client.

There must be dozens of other helpful tips, and I’d love you to share yours with me. I’ll leave you with this broad principle. Consider your own reputation and comport yourself in a way that does nothing but enhance it. Be the voice of reason, particularly when in an adversarial situation. How can it be any better than to be well regarded by the person with whom you are having a dispute? Be firm, but be willing to be wrong if indeed you are. My standard line when defending a Realtor® in litigation is to say something to the affect that if you are right I will be more than happy to help you reach a fair resolution and get the funds to which you are deserving; on the other hand, I need a factual basis by which you conclude my client’s liability.” If my client has committed a wrong, I’d rather have a dispassionate opposing counsel who is willing to discount the loss in exchange for a prompt resolution. When my Realtor® client has beat me to the punch and has ranted and raved at the attorney . . . well my chances are way less than otherwise.