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Tuesday
Sep252007

What is the Hardest Case to Win?

If you were asked that question, what would you say? Would you say a sexual harassment case? Would you say an employee retaliation case? Would you say a contract case with a consumer or a vendor? Maybe you think the hardest case is defending a regulatory action brought by state or federal authorities?

You are correct that it can be difficult to prove that you did not do anything wrong when your business is charged with harassment, retaliation or even breach of contract. It is always hard to prove a negative but there are ways this can be done.

The hardest case to prove is one where you do not have any written documentation of what was done, what was said or what was agreed to. Yet, this is an amazingly easy problem to fix.

A long time client currently is in a dispute with a former vendor over the amount the former vendor claims is owed. The lack of written documents evidencing the promises that were made will make it very expensive to defend the former vendor’s claims. It can be done, but the trial attorney (not me) will need to interview, prepare and depose dozens of witnesses. These witnesses will confirm my client’s story and verify the former vendor’s shady business practices, but it will cost tens of thousands of dollars that could have been avoided with simple written communications.

The good news is, with proper documentation, the parties’ understanding will be clear. If there is a difference of opinions down the road, the written communications can clear up the issue without even involving attorneys.

There are three things that you can do. Each of them are powerful management, dispute avoidance and liability prevention tools. Together they are a powerful strategy for avoiding the time, expense and disruption caused by disagreements that turn in to lawsuits.

1. Confirming Letter/Email. You no doubt have heard of the “CYA letter.”  You can write letters or better yet send emails that look like thank you notes rather than CYA communications. In fact, the party receiving your message may appreciate your taking the time to summarize what occurred. You nevertheless will be heading off the potential for later dispute and will be protecting yourself should a claim arise. This was discussed in greater detail in the April 10, 2007 issue of LegalBriefs, CYA With Thank You Notes.

2. Supervisor’s Log. This is another topic I have previously discussed. If you keep a spiral binder and take notes of your meetings, discussions, agreements and observations as they occur, you will be able to prevent and defend disputes. First, your notes will help you remember things that you might otherwise forget. Second, they are a written confirmation, made at the time of the event, that will help you prove your position. Spiral notebooks are a lot cheaper than attorney fees. The power of this legal prevention tool was discussed in the October 18, 2000 issue of LegalBriefs, Prevent 101 Problems with a Supervisor’s Log.

3. Employee Communications. You must have plain, frank, honest communications with your employees in your written policies, your reviews and your disciplinary warnings. These issues were discussed in prior issues of LegalBriefs and will be addressed again in the future. You may want to review The 2-Question Employee Review, 8 Additional Employee Evaluation Tips, 9 Tips for Reviewing Employee Handbooks, Be Honest When Terminating Employees That Do Not Work Out and 10 Problems You Can Prevent With An Effective Employee Handbook.

Remember what Ronald Reagan said about doing arms deals with the Soviets, “Trust but verify.” When you have reached a verbal agreement with someone, send a nice confirming note expressing your appreciation and write the details down in a log. With employees, let them know your expectations and the consequences for not meeting those expectations. By taking these three actions, you will avoid countless disputes. If a dispute should arise, your chances of resolving that dispute in a timely, cost effective manner will be greatly improved.

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