Saturday, February 16, 2013

Little things you can do to help yourself from a legal perspective.

There are basically three types of clients: Prepared clients; moderately prepared clients, and clients who are so unprepared that it is prejudicial to their case. Most people and businesses fall within the middle category: Moderately prepared. However, if you can make yourself a prepared client, you have already gone a long way toward helping yourself in a legal dispute.

Lawyers work on facts. The more facts, the better the lawyer can differentiate between meaningful facts and meaningless ones. With meaningful facts, the lawyer can fit them into one or more legal theories on which to base a case.

The difference between being a prepared, moderately prepared or unprepared client is not stark. There are a few simple precepts or principles that people and businesses can implement into their daily lives that will dramatically help them in the event of future litigation. These should begin before legal disputes can be foreseen, not at the 11th hour.

Attorneys have difficulty representing clients when they are unclear about facts and a sequence of events. The lawyer's ability to "think outside the box" regarding finding solutions to issues depends on his or her ability to know as much as he or she can about the facts of a particular issue, and the legal theories into which the lawyer can fit those facts. So here are a few simple things that you can do to help yourself in the event of unforeseeable future litigation:

1. Do not post information or comments about legal disputes on social media.

You would be surprised at how much this edict is violated. People get emotional and lose their better judgment. They post information on a social media site, which is discoverable information. In most cases, the other person in the dispute is watching your social media accounts to see if you say something incriminating. If you do, they will take a screen shot and include that information in their evidence.

Information here includes pictures, which can directly contradict what someone is claiming. For instance, in workers' compensation cases, it is not uncommon to see the person claiming the disability post pictures of waterskiing on Facebook, or doing something else that stops their claim dead in its tracks. The Internet does not forget, and in a dispute, people are watching you as closely as you are watching them.

2. Watch what you say.

It is very easy to meet the technical legal definition of business interference, which can also be known as interference with business relations. It is really, really easy to meet the technical legal definition of defamation. Now, an element to recovery of monies in legal disputes is damages, which is what value of detriment the plaintiff suffered in a suit. So, meeting the technical definition of business interference and defamation does not mean that you would have to pay a lot of money to a plaintiff, but it does mean that in theory, you could have a judgment of business interference or defamation on your record.

Basically, do not spread gossip damaging another person's reputation, and do not try to break up business relationships.

3. Keep records and journals of important and mundane events.

One of the best ways you can help your attorney is to save emails, calendars, and have a timeline of events in a legal dispute. It will save you money in the long run, because the attorney will not have to do as much work in finding information, and it drastically improves your chances of winning. As a client, you do not have to know the law or all the relevant facts of a legal theory. But if you can provide your attorney with the information he or she ideally needs, it can be all the difference in your case.

With today's technology, it is not that difficult. Just do not delete old events off of your calendar, because even unrelated events can rekindle the memory of a forgotten event. In a perfect world, a client will record all of their daily events, but this is not practicable. Just save information, archive emails and keep record of meetings and events.

4. Get things in writing.

Clients regularly think that evidence is easier to obtain than it is. Unfortunately, people lie. People do not want to get involved in the legal process as a witness. People forget. Also, clients retrospectively infer the meaning behind certain statements in their favor. When a client claims that someone said such-and-such, and it purportedly supports the client's position, the other conversant often did not mean what the client thinks he or she meant. It is human nature to look for things in your favor, but it is not always consistent with reality.

Although one can be prosecuted for perjury, rarely does a case go by that someone does not lie on the stand. Maybe they did not even intentionally do so, but they have told themselves a story so many times that they believe it. It is just as George Costanza said, "it is not a lie if you believe it." People always think of themselves as the protagonist, and will unconsciously manipulate stories to make themselves the "good guy." So when a client comes in thinking that a case is cut-and-dry, they are surprised to find out that their opponent's story has changed from what they expected.

So, people forget, lie, and generally try to avoid having to be a fact witness in a case. If you can get something in writing, you drastically improve your chance of success in a dispute.

5. When a dispute arises (long before the institution of the legal process), the less you say is better. This includes in text messages, social media and emails.

Before a lawsuit is filed, or attorneys are consulted, it is prudent to self-impose a gag order when discussing the subject with others. This does not include spouses, who are generally privileged from divulging confidential marital communications. But if you text message someone, or tweet something -- even if it is not directly about the person -- it is discoverable information. This dovetails with my first point, but I cannot stress it enough. If it is recorded, digitally or otherwise, it usually can be admitted as evidence.

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