Some commentators think that "best efforts" means you'll do whatever it takes to get the job done, leaving no stone unturned, and damn the cost. Others commentators note that some courts won't even enforce best-efforts clauses on grounds that they're too ambiguous. Still others say that "best efforts" means something in the middle — not necessarily leaving no stone unturned, but something more than just "reasonable" efforts. So which is it?

See generally, e.g. —

• Divining the Meaning of "Best Efforts," by Jonathan Pink, California Lawyer, Jan. 2008, p. 39 (accessed Jan. 20, 2008).

• What the Heck Does "Best Efforts" Mean?, by Ken Adams (accessed Jan. 24, 2008).

• "Best Efforts" v "Commercially Reasonable Efforts," by Corrine Fiessel, BarTalk, Canadian Bar Association, April 2002 (accessed June 4, 2007).

• How Much Effort Does "Best Efforts" Entail? by Paul B. Jones & Carrie L. Seele, Fredrikson & Byron P.A. (accessed June 4, 2007).

• How Much Effort is Best? by Jim Charne, attorney at law (accessed June 4, 2007).

My problem with best-efforts clauses is that there's always room for disagreement whether particular efforts meet that standard. A responsible party thus doesn't really know what it's supposed to do, and the other party doesn't really know whether it's getting what it bargained for. (That uncertainty, however, can usefully encourage the parties to be more reasonable and collaborative than they might otherwise want to be.)

In a related vein, best-efforts clauses can ruin any chance of resolving a lawsuit on summary judgment (that is, without a trial). No matter how much effort the responsible party made, the other side's lawyers can almost always think of some additional effort that the responsible party would-have could-have should-have made. So was the responsible party required to make that extra effort? Judges are likely to say that this is a question of fact that must be decided by the jury. The parties will thus be stuck in an expensive and time-consuming jury trial, with all the lovely pre-trial proceedings that go with it: document production, depositions, interrogatories, and so on. Ooh, good; watch the lawyers' meters run.

Related post: Responsible efforts