By Dr. Ken Broda-Bahm:
In a recent mock trial, the jurors deliberated on the meaning of the duty of good faith and fair dealing. The conversation went something like this:
Juror 1: They clearly met the contract. I mean, look at the language.
Juror 2: Yeah, but did they treat the Plaintiff the way you would have wanted to be treated?
Juror 1: No, I don't think it was totally fair...but that isn't the question. It's about the law, not fairness.
Juror 2: Not just about the law. Look at this, 'good faith and fair dealing.' The other claims are about the law and the contracts and such, but this claim is about fairness.
Juror 3: So, if we feel that the Defendant met all their legal duties, but we still just have a bad feeling about how they acted, then this is the claim we can go for, 'good faith and fair dealing?'
Juror 1: That's right. If they're not ethical in your opinion, then they violated good faith.
Of course, that is a pretty expansive and legally inappropriate view of good faith and fair dealing. But, unfortunately for some defendants, it is also a very common view. In contrast to the other more concrete claims, this one seems subjective and focused on fairness rather than the law. When jurors are armed with just a casual understanding of the concept, they can end up translating it into an amorphous claim, unmoored from law or contract, that just boils down to an injunction for the defendant to 'be good.' To prevent that from simply becoming a catch-all category for juror unease, this post shares a few thoughts on bringing that concept down from the clouds and tying it, despite the name, back to the law and the contract.