A Plea for Written Stipulations

July 6, 2016 § Leave a comment

Nearly 43 years removed from law school, there is not a whole lot from that experience that remains firmly implanted in my brain (I finally got over the PTSD a couple of years ago). Most of what I know of the law I have learned in the practice.

One glaring exception is the sage admonishment of N.S. “Soggy” Sweat, our Trial Practice professor, to “Always, always reduce a stipulation to writing.”

Am I the only one who remembers that? It would appear so, because I seldom see written stipulations. I could almost say I never see them, but I am sure it has happened once or twice in my span in the law.

So why go to the trouble? Here are only a few scenarios of many, many failures:

After Lawyer A has laboriously announced the stipulation, Lawyer B says something like, “We did not agree to that specific visitation, judge, and we did not agree to the tax exemption.” Back to the drawing board.
Or Lawyer B wants to renegotiate parts of the attempted stipulation right there on the record.
Or the announcement is made without objection, but when it comes time to draft the judgment based on it, there is a complete failure of meeting of the minds on what was actually intended by the imprecise language used in the announcement.
Or the announcement is made, and the parties agree to its imprecise terms. Less than a year later they are right back in court fighting over their difference in opinion about what was intended.

When you write down the agreement, the terms are there for all to see. The document can be admitted into evidence, and it can be enforced according to its terms. There is usually greater precision in a writing because people tend to take greater care in what they reduce to writing. When we hear words spoken, we tend to add our own interpretation to them as they are said; we fill in the gaps and assume meaning that may not be included in the words used.

It takes more time and trouble, but I urge you to reduce your stipulations to writing. It can avoid a nasty experience for you and your client, and it will make it far more likely, if not assure, that you get precisely that to which you agreed.

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