Your witnesses are lined up and well-prepared; trial notebook is tight and memorized; all evidentiary issues are anticipated and briefed. Trial day—you are confident because you are prepared. "Your client interested in a high-low?" your adversary chirps at you looking over the frame of his lowered spectacles. If your reaction would be perplexity, creating a chink in crucial trial confidence, continue reading and be prepared for the next time.
The use of a control contract at trial, colloquially known as a high-low agreement,1 establishes concrete parameters of maximum exposure for the defendant and a minimum recovery for the plaintiff. However, if clear terms are not employed and the specific scope is not delineated, defined, and understood by all parties to the contract, chaos can ensue.
