Being a litigator and dealing mostly with business related issues, I come across a lot of instances where either my client or the opposing client could have avoided a huge mess by simply being smarter about the way he or she approached the situation. It’s very easy for me to say that however because as an attorney I see examples of such mistakes on a very regular basis. So how can a layperson better protect themselves legally on a day to day basis? Here are three quick tips that are easy to implement and can save you a lot of potential headache in the future:
Shut The Fuck Up
Always Say Less Than Necessary
When you are trying to impress people with words, the more you say, the more common you appear, and the less in control. Even if you are saying something banal, it will seem original if you make it vague, open-ended, and sphinxlike. Powerful people impress and intimidate by saying less. The more you say, the more likely you are to say something foolish.”
―Robert Greene, The 48 Laws of Power
When in doubt, which should be often if you are not an attorney, just stop talking. As an example let’s say you get into a car accident. The police come and ask if you are ok and you feel fine at that moment, so you say “Yeah yeah I’m fine.” Next morning you wake up and your neck and back are killing you as these injuries did not materialize immediately after the incident because you were still in shock. Now when you go to make your claim, the insurance company will lock itself to those four words you stated to the police and try to make it seem you are feigning your injuries.
You really don’t have to talk to anyone. Even if the cops show up to an accident scene, you don’t have to talk to them. You don’t have to talk to your own insurance company. Lawyer up and let him do the talking for you.
This applies in other settings as well. Striking a business deal? Don’t promise the world to him and later open yourself up to claims of misrepresentation and fraud. Of course it’s not always possible to just be silent, so when you do have to talk, make sure to…
Always Confirm In Writing
Don’t let things fall into the he said/she said crap. An email is forever, and it can help save you months of litigation and expense if it takes something that is open to interpretation and clearly establishes a disputed fact. Moving into a new apartment? Email a list of the damaged items to the manager instead of telling him over the telephone. Now when you move out he can’t charge you for these things. Reached a verbal agreement for the delivery of some goods or services? Confirm it with an email so there is no question as to what the deal was in the future.
I’ll also share a tactic I use often when confirming things in writing. Which of the following is more effective?
Thanks Jeff. Please confirm that if payment is made within 30 days my company will receive 10% off the final invoice.
Thanks Jeff. This email confirms that if payment is made within 30 days my company will receive 10% off the final invoice.
In the first instance, if Jeff does not email you back then he can claim he never “confirmed” the discount and challenge it later. In the latter, the onus is on him so if he doesn’t respond, that is essentially acquiescence to your terms. You can even bolster the second sentence and throw in a “If this is not your understanding please email me immediately.”
Ambiguity Can Be Your Friend
There are certain instances however where you do not want to be so direct and clear in your writing or your words. Using words or phrases such as “it seems” or “it appears” or “based on my knowledge” can allow you some wiggle room in the future if you need to change your position on something. As a very basic example, compare these two statements in response to the question “What did the company promise you when you were hired?”
Guaranteed salary of $5k/month, a tiered bonus structure, and a medical/dental plan.
From what I remember, I believe a guaranteed salary of $5k/month, a tiered bonus structure, and a medical/dental plan.
Afterwards you recall your company also stated you would get 10 days vacation per year. Now when you go back to supplement your response, under the first variation you can be met with some resistance for not stating it at that time. Under the second variation, you have already provided yourself with a means to supplement your response by having qualifiers indicating the response may not be complete.
While this may seem like common sense, a lot of people tend to actually do the opposite of what is stated above. People think they must explain themselves thoroughly to defend their position, where in reality they can be creating themselves a bigger hole by talking too much. Similarly people think that if they can’t recall everything they are better off acting as they do and giving a complete answer, whereas giving yourself room to supplement is usually the better course of action. It’s always better to actually hire an attorney — but for the times you can’t these three quick tips should help.
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