I found a release on the internet. It will work right!

You plan on searching the internet about your next surgery also? 

Once a week I receive an email from someone looking for a free release. Once a week I tell them they get what they pay for. However, I’m tired of writing that every week so now I’m going to blog about it and just refer them to the blog.

1. Why your release must be written by a lawyer
Releases are contracts. A release or as used in the south a waiver, is a contract were in advance of any injury one party agrees to waive or release the negligent party from any claims or damages.
If you understood that, you might be qualified to write a release, but I doubt it.

Releases vary according to the following factors:
 
The type of activity or program you are offering. If your state has a law affecting your activity such as equine activities or rafting, then your release must match those state laws.

The type of entity or business is important A governmental entity such as a college program or a recreation center as different defenses and needs from a commercial rafting activity. A commercial for profit business does not have the benefits of governmental immunity. Similarly, a governmental entity does not have the same benefits of some state statues protecting other activities.

The clientele you are working with. If you are working mostly with minors, adjudicated youth, or other special populations your release must be written differently than a release for adults or other communities.

Language: legalese. Most states require specific language in a release to be valid. That language must be exact in some cases. That language must also not contradict itself. I’ve seen more than 50 releases that are poorly written that prevent a lawsuit in one paragraph and then give back the right to sue in the next paragraph.

More Legalese. One of my favorite issues is a release that tells the injured plaintiff how to sue and win by beating the release. Thirty percent of the releases I’ve read are written that way.

Too much Legalese. Like baking a cake, too much of the good stuff can kill the taste. There are several states that have stated that the wrong language in a release can be sued to void the entire release.

Here I’ll help a little on you do it yourself project.

  1. Releases must be written by an attorney.
  2. Your release must use the word Negligence
  3. You must have a Jurisdiction and Venue clause in your release.
  4. Your release must describe the risk.
  5. Your release must have a heading that points out the importance of the release.
  6. Include the proper list of people to be protected by the release.
  7. Your release must be in English
  8. Your release must be readable; the print must be larger enough to see
  9. Your release must be separate and distinct from all other documents.
  10. Your release needs a signature line. 

The law changes. The only constant in life is change. That is doubly so when writing about the law. Here again do you want to spend your time running your business or paying for a service to check and see if the law concerning releases has changed. Then you must interpret the changes in the law or the cases to see what they mean to your business and whether or not you need to make a change.

2. Why paying for a well written release will save you money?
I charge $1500 to write a release. If you are making $60,000 per year in your business that may seem like a lot of money. At $60,000 a year you are making $30 per hour or $240 per day. The average trial in an outdoor case lasts ten days. I tell my clients that for every day in a trial they will spend three days prepping for trial. If your deposition is two days you will spend six days preparing for your depositions. Figure another ten days are lost answering discovery as well as twenty days getting your attorney up to speed before trial.

Issue Hours
10 Day Trial 80
30 Days trial prep 240
2 days of deposition 16
6 days deposition prep 48
10 days discovery 80
20 days attorney meetings 160
Total 624

That is $18,720 of lost time. I’ve not calculated miscellaneous travel time and worry. If you take 1/3 of your time away from your business in one year, will your business survive? How are you going to hire someone to replace you, if possible, at your business while you are away?

$1500 is cheap then.

Lawsuits are always about poorly written releases.
Well written releases never are in cases that are reported, never appealed. A well written release is recognized by all sides as an effective document in stopping a lawsuit. As long as your state law supports the use of a release, a well written release will not show up in court. Good companies that hire an attorney knowledgeable about their operation or program and versed in writing releases do not show up in court.

So spend the money and have your release written by an expert. Or don’t spend the money and stay up nights hoping no one is ever hurt, no one ever sues and your insurance company will always be there to back you up.

The simple fact is a law school takes three years after college and a test by the state. After that an attorney must take classes every couple of years to stay up to date. Writing releases is difficult and the state requires that training so you do it correctly. They are difficult, complicated and require specific skills. Hire an attorney and do it right.

How is that surgery going?

For additional information about these issues read these articles. From my bog:
Four State Supreme Courts Reverse their Positions on Release (http://rec-law.blogspot.com/2008/02/four-state-supreme-courts-reverse-their.html)
Is your Release and Risk Management Program Up To Date? (http://rec-law.blogspot.com/2008/04/is-your-release-and-risk-management.html)
Releases 101 (http://rec-law.blogspot.com/2008/02/releases-101.html)

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

Keywords: outdoor law, recreation law, outdoor recreation law, adventure travel law, release, waiver
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