Self-inflicted Misery
In my practice, I am often struck by how many litigation matters are avoidable. Litigation often seems to flow directly from self-inflicted misery. If you can avoid self-inflicted misery, you will go a long way toward reducing the risk of litigation and improving your chances if you are in court. Here are a few tips on how to do just that.
If You Think You Need to Hire Someone, You Do
If you feel like you are overwhelmed with work and you need help, you need to hire more people. Many contractors try to grind through projects understaffed. The end result is frazzled workers, poor work quality, project delays and lawsuits.
On a related note, do not underestimate the importance of office personnel in relation to field personnel. Failing to hire enough competent people to handle bidding, contracts and documentation is a quick ticket to ensuring these aspects of the project are done poorly. Poor documentation is the simplest way to find yourself in litigation.
Don't Hire the Wrong Person
While you want to hire enough people, you want to hire the right people. It is not worth it to hire people whom you have reservations about during the interview process. I can say from both personal and professional experience, hiring the wrong personnel can lead to problems.
While the hiring process is time-consuming, training new hires is a far heavier investment of time and energy. A bad employee can impact your business not only through his or her own poor work, but also through the impact that person has on staff morale and attitude. It is far better to wait until you find the right fit for the position.
Avoid the Problem Project
If you have a bad feeling about a project or client, avoid that project or client. I cannot relate how many times a client comes in to my office saying, "I had a bad feeling about this client before I started the job." A bad feeling at the beginning of the job has a great chance of turning into a perfectly awful feeling by the end of the job.
A project that raises concerns before you even bid is a project to avoid. If you feel a project has inherent problems that create risk, let someone else inherit that risk. It is better to forgo the modest profit of one job than to face the downside risks that litigation can bring to bear.
If you have a negative reaction to your potential client, avoid that client. You have developed your instincts with people throughout your entire life. You have gut reactions to people based on whom you will and will not get along with in the long run. Trust your instincts and avoid people and projects that do not feel like they are a wise investment of time and resources. When you go against that internal reaction, you increase your chance of a problem project that drains your resources and drags you into litigation.
Do Not Take On Too Much Work
The construction industry is a great example of feast or famine. Today, contractors are stretched thin with too much work, too few workers and too little time. Someday, the pendulum will swing the other direction again. The temptation is to never turn down a project in fear of sitting idle if there is a downturn.
Ultimately, it pays in the long term to say no rather than get over-stretched with too much work. If you take too much work, you ensure that you have inadequate workers and oversight to properly man and manage jobs. That is an invitation to unhappy clients, project delays, poor quality work and visits to your attorney.
Take a Deep Breath
It often pays to think before you write or speak. Particularly in writing, you cannot "unwrite" a letter that has been sent. Even verbally, you cannot "unsay" a statement that has poisoned a relationship.
The personal communications and interaction on a job play a major role in its success or failure. Similarly, those personal communications play a major role in any litigation that arises out of a problem project. It is far better to edit your own comments and writings and tone them down for diplomacy rather than have your words used against you in litigation. In addition, a more diplomatic approach often leads to more positive interactions during the project and reduces the threat of litigation.
Conclusion
You can reduce your litigation risks by following some simple steps, namely to avoid self-inflicted misery. Even when litigation is unavoidable, avoiding self-inflicted misery goes a long way toward increasing your chances of success in court.
About the Author
Tim Hughes is Of Counsel to the law firm of Bean, Kinney & Korman in Arlington, Va. He can be reached by email at thughes@beankinney.com or by phone at 703-671-8200.
This article is not intended to provide legal advice, but to raise issues on legal matters. You should consult with an attorney regarding your legal issues, as the advice you may receive will depend upon your facts and the laws of your jurisdiction.
