An Orange County Litigator Provides Best Practices for Business Communications
June 7, 2017
Are Your Business Communications Causing Unnecessary Risks and Expenses?
Communication results in perceptions by others beyond the intent of the communicator. Often, both Judges and Juries determine the outcome of a case based on a subjective “like v. dislike” or “victim v. oppressor” then on legal principles. In litigation, a quality counsel is constantly evaluating client risk largely based on what evidence is available to his or her client and the opponent. A major consideration in evaluating risk is the communications that occurs leading up to the dispute. Generally, as manipulative as it sounds, an attorney in litigation does not conduct a search for the truth, but instead endeavors to develop the strongest case for his or her client. The main objective of an attorney’s review of communications is to determine how communications can be used to support his or her client’s position and to place a negative light on the opposition.
The current use of fast paced communications such as text messages have enhanced the risk of ambiguous and poorly worded communications. The impreciseness of even limited portions of communications may, as a result, become a critical factor in the outcome of a trial or during the determination process of deciding whether a party can even risk going to trial as opposed to being forced into an otherwise unacceptable settlement position. During a trial, every written communication can be submitted as evidence and appear as an exhibit. Poor communications can lead to a wide range of claims based on theories of written contract or promissory estoppel that are harder and costlier to defend.
Listed below are communication practices that should be exercised:
Avoid ambiguity by making communications clear and short.
Avoid making unintended promises or assurances.
Avoid writing editorially. Do not oversell and make claims you cannot deliver on.
Avoid heavy-handed statements even if fully accurate.
Avoid untrue statements.
Never breach the attorney/client or other privilege.
Do not convey internal discord for this can often broaden the scope of a lawsuit.
Maintain a theme and focus based on the purpose of the communication and the desired outcome.
Practice timely follow up.
When possible, standardize communications.
Be vigilant and recognize risks of a potential lawsuit.
Proofread and review communications at least twice before transmitting.
Clearly designate communication intended to be confidential or privileged on the face of the documents.
Utilize confidentiality agreements when necessary.
In the current environment, the business community must be far more cognizant of the implications of communications, and where possible, standardize communications and avoid ambiguities, provocative statements and emotions in communications. Once the prospect of a dispute arises, it is often too late to minimize the risks arising from past communications. Providing employees with training in regard to defensive communication practices can help to prevent communication risks in the future. Involvement of an attorney, whether in-house, retained or just consulted, when dealing with sensitive communication matters can also help to eliminate possible communication risks. Additionally, the use of an attorney to make communications confidential and privileged in internal communications can prevent costly lawsuits in the future. All in all, it is crucial to be proactive and practice preventative measures when dealing with communication, rather than waiting until a lawsuit arises.
Contact an Orange County Litigator Today
QUALITY LAWYERS MAKE A DIFFERENCE – Please feel free to contact Mr. Eric Dean at Fitzgerald Yap Kreditor LLP at (949) 788-8900.
Disclaimer: This article is solely intended to provide information for consideration only. It is not legal advice and is intended solely to raise broad and general possible topics of concern for further consideration, and therefore, should not be relied on. A reader who has concerns related to the topics addressed in this article should consult his/her own advisors and not otherwise act based on the content of this article.
About the Author
Eric is an honors graduate of UCLA School of Law. Eric’s practice is focused on providing full service to the Hospitality, Commercial Real Estate and Secured Lending Industries throughout the State of California. Eric was a general counsel for a national hotel developer and operator for seven years and currently acts as outside general counsel for clients on an agreed fixed fee basis. You can find his profile on LinkedIn. As of May 15, 2017, Eric has joined FitzGerald Yap Kreditor LLP (FYK) as a partner. FYK provides full service to the lending, construction, business and real estate industries throughout California.
