Beware The Boilerplate: Another Thing About Waivers . . .

Just as many waivers must be conspicuous in order to qualify as an "intentional relinquishment" of a right, they should, in many circumstances, also be express. While the initial impulse may be to draft a general waiver clause that does not clue the other side into exactly what waivers are important to your client, the approach is not without risk. Better to start with specific waiver language and have it negotiated out, leaving the litigator with broad, general waiver language to fight about, than to forego the opportunity to be so clear that no fight can be had. This is certainly the case with respect to matters not yet resolved by the Texas Supreme Court, such as offset for fair market value of a foreclosed property in a deficiency suit.