Unfortunately, there is no way to completely insulate yourself from potential litigation. Even if you were to live a perfect life, free of all wrongdoing, someone could still bring a legal claim against you for some perceived wrongdoing. Every human interaction carries with it that inherent potential for real or imagined conflict, and there is no escaping this reality. And no . . . an attorney can’t just call up the judge and tell him/her that the case is frivolous. Once sued, regardless of whether the opposing side has raised a legitimate claim, your life will likely be overrun with all the time, money, stress, and energy necessary to defend your good name.
Having represented both plaintiffs (i.e. the person suing) and defendants (the person being sued) throughout my career, I have routinely wondered: “If I could go back in time and advise my client before his/her conflict arose – what would I tell that person?” Even though every case has unique fact patterns and personalities, certain trends and themes stand out more than others. Please consider the following as my “Top Ten” general observations to avoid or minimize legal conflict:
- Eliminate foreseeable risks to others. We all have those “hindsight is 20/20” moments when a poor choice comes back to bite us. For me, this once came in the form of applying clear fingernail polish, as a “protective layer”, to a very large, freshly-opened blister on the palm of my hand. Bad idea! Yes, I can hear you saying, “Well duh!” Now please perform that same “well duh” exercise in your own life and ask yourself where there may be unreasonable, obvious risks to you and others that can be easily minimized or eliminated. This might include: (a) obeying all traffic laws — including not speeding or texting while driving; (b) limiting your driving on slick roads; (c) removing dangers from your property that may poke, poison, cut, trip, wound, crush, or kill the unsuspecting visitor; (d) obeying your company safety policies; and (e) using your equipment and tools properly with all guards and safety labels in place. Please be especially vigilant if you have or regularly watch children who may not be fully aware of the clear dangers associated with hot tubs, swimming pools, fire pits, dogs, trampolines, motorcycles, and other items that may be especially attractive to their curiosities. For those risks that cannot be eliminated, make sure you warn others of the danger or isolate the risk as much as possible.
- Be resolute and true in your commitments. If you do not have the time, ability, desire, intent, or skillset to accomplish some task – do not agree to do it. If you do not understand or are not certain of what is being asked of you – do not commit until your questions are answered. Never sign a document you have not read. If you are afraid other individuals will make it difficult or impossible to fulfil your responsibilities – do not agree to proceed. Most importantly, put the essential things first. If some new commitment would reduce your ability to meet the most essential obligations already existing in your life, please slow down and prioritize before deciding to add another weight to your pack. Once committed, live by the cowboy code where “your word is your bond and a handshake is as binding as any written contract.”
- Put agreements in writing and document subsequent actions. Even though you may honor a handshake, the other side is not always so trustworthy. If you have ever watched any reality TV court program, you have definitely heard someone say, “But he/she was my friend (or sister/brother/mother/father/neighbor/etc.).” Let me make this clear – nobody expects for conflict to arise, especially when dealing with close friends and family. Just as good fences make for good neighbors; good contracts make for good partners. When expectations are clearly established, both sides benefit from the knowledge of what they must do and what will happen if they fail in their obligations. In attempting to formalize those expectations, one or both sides may realize that they disagree. Wouldn’t you rather discover those issues on the front end when there is still time to work through the differences? Moreover, to the extent any change is agreed upon after a contract is signed, those amendments should be put in writing and both parties should sign off. Finally, always maintain careful records of what you did after entering into an agreement. A judge and/or jury will generally favor the individual who can support their testimony with reliable records.
- Carefully choose those to whom you are bound. In the novel, How to Make an American Quilt, novelist Whitney Otto writes, “No one fights dirtier or more brutally than blood; only family knows its own weaknesses, the exact placement of the heart.” Pp. 12-13 (Random House 1991). Don’t get me wrong – family, close personal friends, and valued business associates are something to be cherished. However, the most emotional, time consuming, expensive, and difficult cases often involve the breaking apart of what were once those same very close personal or professional relationships. This includes divorces, child custody proceedings, business dissolutions, and contested probate proceedings (i.e. disagreements as to the distribution of a deceased person’s assets). The easiest way to minimize the risk of these “brutal” and “bloody” battles is to be very selective and fully educate yourself before you legally bind yourself to someone – personally or professionally.
- Hire an attorney before an issue becomes a crisis. I once heard the analogy that attorneys are like the person with the rulebook to a board game, responsible for helping all the players make it to the end. Just like board games, sometimes the rules/laws are intuitive while other times they are obscure or confusing. Should you find yourself in a situation where you wonder whether it is lawful to proceed in a particular manner or if you don’t fully understand your rights – do not hesitate to contact someone who has “read the rules.” Often, a situation may be resolved on the front-end with a minimal amount of time, money, emotion, and effort; however, should you continue along an unlawful course for months or years, you may find it substantially more difficult and expensive to try and resolve what has then turned into a personal and/or financial crisis. While online “forms” and legal blogs may seem like an inexpensive shortcut to hiring an experienced attorney, generally such information is overly broad and may fail to take into consideration facts that are unique to your particular issue.
- Do not force or rush important decisions. There are situations when you must act promptly to meet concrete, short-notice deadlines. However, it is almost always a mistake to make a decision while panicked or before you have stopped to fully think through the situation and gather necessary information. If you find yourself in a situation where someone has given you an artificial deadline or when something just doesn’t feel right, please take your time. It is a huge red flag if the other side attempts to discourage you from consulting with your attorney and/or accountant. Please do your due diligence and make sure you have a complete picture of all essential facts before making large or otherwise significant decisions. And no . . . that is not really the IRS, a wealthy prince, or “Janice” from credit card services calling and emailing you with high pressure demands for money. Please do not let fear or anxiety rush your decisions.
- Live within your financial means. The comedian/actor Steve Martin once performed a skit where his character was left utterly perplexed by a book entitled, “Don’t Buy Stuff You Cannot Afford.” The clip is only a couple minutes long and worth the watch. Many legal disputes arise because one or both parties have overextended themselves financially. In fact, depending on the study you look at, money problems, along with infidelity, are the leading cause of divorce. And on top of it all, you may need to pay an attorney, accountant, and/or financial advisor to help unwind it all – putting an even greater dent in your bank account. Ask yourself, is any investment or purchase worth sacrificing your future peace and stability?
- Temper your emotions and assume all your communications will someday be read to a judge. I am not aware of any attorneys that give a discount if all you are seeking is a “moral victory.” Likewise, there are no expedited procedures to punish someone for being a dirty scumbag. Similarly, there is no special pleading to make sure the judge understands you are the good guy and the other side is evil. Also, a court will not give bonus points to the side who sends the last scathing email. If anything, personal vendettas and boiling emotions will increase the cost and time involved in resolving the dispute and cause both sides to become irrationally stubborn. When tempted to have a heated communication (via phone, email, text, Facebook, Facebook messenger, Twitter, Instagram, etc.), take a day to wait for things to cool down. When in doubt, presume a judge will hear every word you say and see every sentence you write. If you would be embarrassed to say it in front of a judge, consider whether it would be best to “say nothing at all.”
- Incorporate your business and buy insurance for larger risks. If you own or operate a business, you may be leaving yourself, individually, open to unreasonable risks. Please click the link for more information relating to creating a Wyoming business. To help further insulate yourself, you might consider purchasing adequate insurance to cover your most common activities just in case things do go wrong. It is just as important to actually read and understand what your insurance covers.
- Be very cautious of promises of future payment. Whether the sale is large or small, to someone known or unknown, if you are not paid up front, there is a good chance you will not be paid later. It is a HUGE RED FLAG if the purchaser does not already have the funds and cannot get financing from a bank to pay the entire amount owed. Even when the prospect of future payment is good, a wise lender will still require some form of collateral or guarantee in the amount loaned. In other words, always do your due diligence and make sure your interests are sufficiently protected before giving someone anything of value. Otherwise you may be stuck trying to “squeeze blood out of a turnip.”
The contents of this article are intended to convey general information only and not to provide legal advice or opinions. Further, the contents of this article shall not be considered as establishing, and should not be relied upon for the establishment of, the existence of an attorney-client relationship. We disclaim all liability in respect to actions taken or not taken based on any or all of the contents of this site to the fullest extent permitted by law. As all facts and situations are different, an attorney should be contacted for advice on specific legal issues.
National stats: http://www.courtstatistics.org/