With the speed of so many communication devices at our fingertips, it’s important for business people to take a moment to reflect before they communicate in a dispute.
Disputes have a nasty habit of rearing their heads in court before a judge and a jury of your peers. So, if you wouldn’t want your local judge, your business associates, your fellow church members, your friends, your spouse, or your parents reading it or hearing it, don’t write it or say it in the first place.
There are some simple guidelines you should follow when communicating in a dispute. If you follow these guidelines and later end up in court, your lawyer’s job will be easier, which will save you money, reduce litigation delays and increase the chances of a favorable outcome from a dispute.
• Any and all admissions can and will be used against you in litigation. If it is a written admission, you can expect it to appear on a large print poster board exhibit that the other side’s attorney will be all too happy to hold in front of the judge and jury at every opportunity. If a communication’s appearance in a courtroom on a poster board would cause you heartburn, don’t say or write it.
Instead, call your attorney and run it by him or her.
• Watch your tone. Don’t be mean or spiteful. Judges and juries don’t like mean or spiteful people. Jurors are usually faced with a tough choice between two different, if not contradictory, stories and must choose one or the other based upon a couple days of testimony and only a few fleeting moments to take your measure. If you appear mean or spiteful they won’t like you. If they don’t like you, they won’t believe your story, or worse, they won’t care about your story.
• Keep your options open. Don’t assume from the beginning of the dispute that litigation is the best method of resolving it. An advantageous settlement can reduce attorney’s fees, delays and the risk of an unfavorable outcome. It doesn’t take a rocket scientist to realize that settlement is more likely if the parties to the dispute have maintained a professional relationship without getting angry at each other.
Getting angry will do nothing but reduce your chances of reaching an advantageous settlement and increase your chances of possibly losing a business associate.
• Be clear and concise. Make your position known to the other side as soon and as clear as possible. Unless the other side knows and understands your position, they can’t evaluate it and certainly can’t give you what you want. Rambling or using ambiguous words and phrases just makes you look unreasonable, unpredictable and irrational.
• Don’t bring into the conversation issues that aren’t relevant to the dispute. It is easy to overwhelm a group of twelve people who aren’t familiar with your story with too many facts.
You certainly don’t want to be forced to take up some of a jury’s limited attention span and capacity to remember facts explaining the irrelevant and potentially damaging side issues that you included in your communication.
In a dispute, don’t say or write things that might embarrass you, it’s not professional, it could come back to bite you and it’s just not nice.
Printed in Four Rivers Business Journal (Paducah Sun), March 2012.