A column of New Year’s resolutions may be a bit cliche. But with the valley making a fresh start for 2014, it is an opportune time to revisit three maxims that will help individuals, HOAs and businesses avoid having to visit with a litigator like me. I think we can all agree that is a goal for which we should strive this year. If perchance that end is inescapable, then the maxims should at least strengthen your position in a quarrel. Surely, that is important enough to overcome the banality of yet another New Year’s article.
Keep A Written Record
First and foremost maxim: Keep a written record of everything. As you probably tell your accountant, that is not very practical. Fair enough, but if you even sniff trouble on the horizon and evidence of your actions can be reduced to writing, do it. Yes, oral contracts can be enforced and eyewitness testimony can be given, but practicalities and human nature suggest that the written word or tangible item is far superior proof than the vagaries of human memory. Documentary evidence may have minor authentication hurdles to overcome, but documents are not subject to attacks on credibility in near the same way as people.
Corollary to the first maxim: when you keep a written record of everything, that includes your bad deeds as well. Just as you wish to be rewarded for being good, you must accept the consequences of your bad actions. Selectively maintaining only the documents that show your positive side is not only legally improper, but it is just wrong. The solution: do as few bad things as human fallibility will allow.
Second corollary to the first maxim and a point that I have often repeated: if you have an agreement with someone based on their word or handshake, then that agreement’s worth is roughly equivalent to the extent of that person’s honor. I am admittedly cynical, but I do not share the surprise and indignation that results when one party to the handshake agreement breaks their word. Generally, people act in their own best interest and in 2014 you are taking a risk taking people at their word. Is this lamentable? Absolutely. Is it true? Unfortunately, yes.
Take Preventative Measures
Second maxim: a little bit of legal advice at the outset prevents a lot of legal work on the backend. Or, as Benjamin Franklin said, “An ounce of prevention is worth a pound of cure.” Contrary to popular belief, lawyers can help you. Too often, I see clients who believed that they could handle a business or real estate transaction without consulting an expert. Unsurprisingly, these transactions tend to go awry, and my fix takes tens or hundreds of hours instead of the two that could have set the right course. Even if the deal does work out, it is a question of risk and smart investment: why not spend a few hundred dollars to minimize the chances of the disaster of losing $1 million? Whether it is naivete, excessive frugality, or ego that causes this scenario, please put those factors aside and take the time to talk to someone who knows what they are doing. When I am sick, I do not take out a mortar and pestle and concoct my own medicine as that would likely end with me on the operating table. Being mechanically uninclined, when my car is acting funny, I take it to a mechanic because I know it will be a miracle if I lift the hood and tinker around and my car does not end up having to be sold for scrap.
The final maxim is easy to state but can be difficult to perform: “Be nice.” When I mediate cases, I do not believe in setting too many ground rules. My initial admonition is those two simple words and it almost always works, even when the parties harbor unimaginable hate for each other. It is enough to bolster my low opinion of human nature. If you take away nothing from this article or any other part of Open Bar, then abiding by those two words will be the most effective litigation prophylactic.
Sure, there are more steps that you can take to keep yourself out of the courtroom, but by keeping the resolutions short and simple, success is more likely to be attained. Now, if I could just as easily stop eating so much coffee ice cream, I would be all set.
T.J. Voboril is a partner with Thompson, Brownlee and Voboril, LLC, a local civil litigation firm, and the owner/mediator at Voice of Reason Dispute Resolution. For more information, contact Voboril at 970-306-6456, firstname.lastname@example.org or visit www.thompsonbrownlee.com.