Your attorney has told you that you as an auctioneer need all these disclaimers in your contracts and terms & conditions. Why? The reason often cited is that “There are all these tort lawsuits being filed … “ followed by, “Until there’s serious tort reform …”
You’re being lied to. There’s not really any need for “serious tort reform” nor are there “all these tort lawsuits …” While some states have tort caseloads nearing 10% of all civil cases, the nationwide average in the United States is 3.5% of all civil filings.
Further, 30% of that 3.5% is businesses suing other businesses, leaving personal-related tort lawsuits at about 2.5% of all civil cases nationwide. As we’ve seen ourselves, your attorney-advised disclaimers, waivers, and assignments are unfortunately more so you can misbehave.
You might remember an overwhelming number of tort cases, but that was probably in the 1980s, as since that number of fillings has fallen drastically. While not all, many businesses have since begun to behave better.
Not that all your disclaimers are unnecessary, but it is likely a time to look at which ones are serving for your protection and which others serve as an incentive to go astray.
As we’ve noted, why would any auctioneer need a disclaimer that bidders cannot rely on anything he or she says? In other words, we can lie to you and you can’t do anything about it? Why not just tell the truth, as best you can?
If that’s the case — that we can lie — then no wonder we have trouble earning the trust of the public. If we told the truth, maybe we could earn back some of that trust; the courts have been very understanding of occasional, unintentional errors.
Further, and even more disturbing your attorney who said there are all these tort concerns (which there really aren’t) probably had you sign something indicating you can’t rely on anything he or she said … so maybe you too can be lied to without consequence?
Tort reform fallacy 05/12/20
Finally, let me say that most auctioneers and most attorneys are moral and ethical, and it’s, unfortunately, the few in both professions making it difficult to be viewed any differently.
Mike Brandly, Auctioneer, CAI, CAS, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, RES Auction Services and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College, Executive Director of The Ohio Auction School, an Instructor at the National Auctioneers Association’s Designation Academy and America’s Auction Academy. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by the The Supreme Court of Ohio for attorney education.