Establishing an appropriate standard of care is a cornerstone of a good contract, because negligent conduct is defined as any performance below the identified standard. When contract language says that consultants are expected to perform at the highest standard of the profession, this creates unrealistic expectations of perfection. If every NBA contract used the word “best,” then every NBA player that wasn’t Michael Jordan would be in breach of contract. There can only be one best. Words like highest, best, guarantee, assure and certify, to name just a few, significantly elevate the standard of care. This creates what is called an “express warranty,” which the majority of professional liability insurance policies exclude.
While it is understandable that clients expect top-notch performance, promises in a contract to be “the best” or to perform at “the highest” level invite the insurance carrier to deny coverage. Such promises don’t actually improve performance; instead they undermine the security the client is seeking from the professional insurance policy.