Have you ever yearned for a way to make lawsuits a thing of the past? Have you ever thought to yourself – “gee, I wish some brave attorney would help me a avoid a lawsuit instead of just taking all my money to represent me in one”? Well, you’re in luck, because today only and for the low introductory rate of free, I’m going to share with you my patented, 100% guaranteed method to live a litigation free future (hurry – limited quantity available).
Just follow these three simple steps, and you’ll be free of lawyers forever:
STEP 1: Close your business. If you manufacture/sell valves, fuel probes, or other spare parts – stop doing that. If you fly customers/cargo – ya, you’re not doing that any more either. No more business = no more potential lawsuits. Perfect! Well, almost. What about all the spare parts we sold or passengers we ferried over the last several years? What if they become dissatisfied and want to sue? Don’t worry, I’ve got you covered…
STEP 2: Buy a sailboat. You’re just going to have to trust me on this one. I’ve seen a lot of movies, and sailboats seem to work best. You’re also going to need a few gasoline cans, a mannequin roughly the same height as you (for the truly inspired, a shovel and a midnight trip to a local graveyard may be substituted for the mannequin), and a sufficient number of people standing around on the dock to watch you set sail.
Wait – you were looking for a somewhat less extreme/more realistic method of avoiding future legal battles? Unfortunately, as the Rolling Stones say,
I can’t get no satisfaction I said, hey! you! get off of my cloud You can’t always get what you want. Yes, there is no panacea for the hell that is dealing with lawsuits (whether your own or one filed against you) and the miserable predators attorneys who file them. But that doesn’t mean that all hope is lost. Although you can’t simply hide from the possibility of litigation (little known fact – lawyers, like vampires, can see in the dark), there are steps you can take (correction – should be taking) to minimize risk and maximize your prospects of success.
So how does one strategically plan for litigation? Much the same way one plays chess or attempts to solve a Rubik’s cube (I’m not one to talk – the last time I tried I simply peeled off all the stickers and re-glued them back on in the correct order – and don’t judge me, because I know you did the same) – if you’re not thinking about the long term consequences of your moves/actions, you’re probably not winning the game. What do I mean by this? I’m glad you asked.
Let’s say you’re a seller of aircraft parts. You sell to buyers all over the country, perhaps even around the world. Some buyers pay cash, some you invoice and they pay a few weeks later, some you need to guilt into making any payment, and some prefer the no rhyme or reason approach to their orders/payments. Now tell me (well, tell yourself – if you’re talking to your computer screen or a piece of paper, you’ve got bigger problems than litigation planning) what your terms of sale are. What warranties do you provide? What warranties do you disclaim? What State’s laws should be applied in interpreting your sales? Do you specify a particular court that someone can sue you in? How many days does someone have to identify a defect? What happens if your buyer declares bankruptcy days after you receive payment for an order? I could go on, but if you’re not comfortable with answering any or all of these questions, then you’re probably exposing yourself to unnecessary risk.
I’m not suggesting that you treat every customer/supplier as a potential adversary that you will ultimately go to battle against – answering your phones with “anything you say can and will be used against you in a court of law” as opposed to “hello” is probably not conducive to the success of your business. There’s a fine line between anticipating/preparing for the possibility of litigation and being an overbearing brute that nobody wants to deal with. You know your business best, and therefore you are in the best position to figure out where that line is.
So what you’re saying is just hire a super lawyer to draft up some standard terms for my invoices/contracts and all will be good? Not quite. First – if you want to hire a lawyer, that’s your choice – but it certainly isn’t a necessity. With a little elbow grease and Google search skills, you could probably put something together yourself that is far more effective than the nothing you have now. Second – there’s unfortunately a lot more that goes into planning for litigation than just getting your contractual terms in order.
There’s enough material out there that I could dedicate an entire blog to the subject (shameless self-promotion – I do! Mosey on over to www.IHateLitigation.com for an extra dose of litigation education) and still not cover everything. Individual tips and ideas are helpful, but the most important thing for you to remember is the mandate to think ahead – how is what I am doing now going to affect the outcome and cost of a future lawsuit?
In parting, think about this… how are lawsuits won and lost? Unless we’re talking about exploding widgets or a videotape of your opponent laughing maniacally while confessing his intent to defraud you (note – these are the types of cases that probably should settle), most lawsuits come down to what everyone was saying – emails, social media, memos, letters, etc. – long before anyone even suspected litigation was a possibility. And we’re not just talking about what CEO of Company A is saying to CEO of Company B – in fact, we’re rarely talking about that. Most of the time it’s employees and middle-managers that are involved in the day-to-day communications that have a nasty habit of finding their way into the courtroom.
Do you know what your employees are emailing to their counterparts/your customers? Do you know what they’re saying internally via email? What policies do you have in place for keeping/destroying documents and emails after a certain period of time? What if, under that policy, you delete key documents that could help you in litigation? How easy is it to search your computer network for relevant documents and information? How much about a particular transaction, employee termination, etc. are you really going to remember several years after the fact?
I recognize that I am raising more questions than answers, but thinking about these questions now can really help you in the future. Nobody enjoys a lawsuit (well, except for the millions of lawyers out there happy to take your case and
bleed you dry aggressively litigate it), but if you have to endure the pain, you may as well go into it as prepared as possible. I’m sorry I couldn’t provide you a magic solution to the annoyance of litigation, but I’ve provided you with the next best thing. As they say, give a man a fish and you feed him for a day. Teach a man to fish and he will sit in a boat drinking beer all day. Wait – that may not be the lesson I was going for.