How Not To Get Sued
My friend Vickie Pynchon recently posted at Chris Hill's blog, Construction Law Musings, on "How to Get Sued". On the flip side, there are some simple pointers that all individuals and entities can follow that will dramatically reduce the chances of being sued. These tips apply across a spectrum of businesses and are certainly not limited to just construction, real estate and land use.
1. Be likable. It is a lot harder to sue a friend. If you maintain a friendly, warm relationship and the other side genuinely likes you, it is very difficult to cross the threshold of considering suit, let along filing one.
2. Failing that, at least be palatable and not obnoxious. On some level, likability and personality are somewhat pre-wired and we may not all be blessed with the so-called "winning personality". It is clearly within most of our ability to avoid being confrontational, impolite or nasty. Those traits make it real easy to turn a dispute personal and into trench litigation warfare.
3. Be honest and maintain credibility. Understand that if you get caught even in somewhat meaningless falsehoods, they come at the price of your credibility throughout the deal. Many lawsuits flow from the plaintiff losing trust in the honesty of their opponent.
4. Play nice. Taking extreme advantage during a deal may feel like a good move at the time, but it can create an atmosphere that calls for payback. Building a relationship of shared mutual success and teamwork can help smooth over differences of viewpoint during performance of contracts.
5. Be organized. Expensive, protracted and risky litigation looks a lot less attractive if your opponent looks like they have their act together and can or may win. Sending the message that you are well organized throughout a contract can help create that impression.
6. Document, document, document. This may be the most important substantive point, as opposed to personality driven point, of all. My career is littered with cases fraught with peril due to the failure of clients or opponents to document decisions, conversations, agreements, or notices. In the era of instantaneous e-mail transmission, there is no excuse for why you failed to drop a quick line confirming what turns out to be the pivotal facts once you get into litigation. Sending that timely confirmation is a great investment in avoiding litigation.
Image: Yale University Art Gallery
Great thoughts Tim. I appreciate your consistent readership at Musings. I would just change the "Be Nice" (with a mangling of the great line from the movie Roadhouse) "Be Nice. . . Until its time not to be nice!"
Being ready to pull the trigger (see your point Nos. 5 and 6) can go a long way to not getting sued as well.
You pointed to one of the guilty pleasures in our house there Chris. "You are the bouncer, I am the cooler." I am not really sure why I like that movie because it really is cheesy, but I find myself stuck on it when it reruns on TBS too often.
Thanks for your thoughts!!
Bad movie, some good lines though.
I know, it really is awful and yet somehow I have to keep watching the train wreck!
Really interesting to see this type of common sense advice and appreciation that there is more to disputes than a simple legalistic black & white approach.
Is there much takeup of mediation and other less "contentious" methods of dispute resolution in Virginia? This seems to be another tool which can be used to avoid these kind of entrenched positions and come to a sensible resolution.
Hi Jon,
Thanks for the visit and the comment. I am a big fan of mediation, which you can probably glean from the post here:
http://www.valanduseconstructionlaw.com/articles/adr/
Virtually all of my construction cases are mediated at some point, often quite early in the process.
Vickie Pynchon, my friend I am responding to in his very post, is an active mediator and we have some pretty extended conversations on twitter and Chris Hill's blog on this topic. Look for more mediation and arbitration discussion here over time.
Thanks for the thoughts Tim and Jon. I think that mediation is great, it allows for a solution more controlled by the parties. If a dispute can be resolved short of such formality, even better. I feel that more attorneys should be counselors and not just head for the nearest courthouse.
Litigation can be one tool and mediation another.