In a recent story, we noted attorneys (lawyers) can represent clients as advisors, advocates, negotiators or evaluators. As well, lawyers can assist the public as more-or-less neutral third-parties to help resolve various issues.
As one who’s worked with attorneys all over the United States as an expert witness, I’ve personally experienced these various roles and in my opinion, here is where auctioneers can certainly benefit:
- Advisors can help auctioneers write contracts and auction terms. Advisors can also assist with setting up business structures (including estate planning and business transition) addressing tax and insurance issues.
- Evaluators can help auctioneers by looking over current contracts, auction terms, business structures, tax obligations and insurance policies.
- Advocates can help auctioneers when they are found in a lawsuit or other dispute where there is financial and/or emotional risk.
- Negotiators can help auctioneers settle disputes out of court — or help avoid a pending court action altogether.
Essentially, advisors and evaluators should be telling auctioneers how to avoid getting sued, and advocates and negotiators should be helping auctioneers if and when they get sued.
Maybe just as important is not to have your attorney take on the improper role given your circumstance. For instance, when you need an advisor, don’t secure an advocate, evaluator nor negotiator. When you need an advocate, don’t secure an advisor, evaluator nor negotiator …
For that matter, when choosing an auctioneer, be sure to choose an auctioneer familiar with your property and marketing such. Choosing the right auctioneer, attorney, insurance broker, tax adviser and anyone else in your life is always prudent.
It seems abundantly clear to us that your attorney should be giving you advice in order to avoid court and not win or lose in court. However, once in court, you need an advocate and possibly a negotiator to help you get on with your life.
For example, reopening the bid after, “Sold!” (other than under the UCC’s § 2-328’s narrow allowance) or selling “as-is” with no preview opportunities are two prime examples of siding with the seller coupled with a likelihood of getting into court, rather than staying out of court.
This typically results with auctioneers needing an advisor or evaluator but instead listening to an advocate attorney. Likewise, as an expert witness, I don’t advocate nor negotiate, and rather advise and evaluate cases at the request of my client(s.)
It can be this stark: An advocator might say, “You can reopen the bid anytime you want … we can beat that in court.” where an advisor might better say, “Don’t reopen the bid … so that we can avoid court.”
We wrote about staying out of court (versus winning or losing in court) here in 2018: https://mikebrandlyauctioneer.wordpress.com/2018/07/26/auctioneers-you-want-win-in-court-or-stay-out-of-court/. Yet, I still see auctioneers misguided by, “You can win that in court” rather than, “This will keep you out of court.”
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.