August 1, 2020
Mark Humphries
Recordkeeping is just one part of beating lawsuits
Self-defence 101
DOCUMENTATION IS IMPORTANT, although low on the list when avoiding or defending a lawsuit. The first thing is, you don’t want one coming your way.
The Number One step is to know your numbers, calculate correctly and create a quote that will allow you to do the job. Getting that award might scare you, as you ask, “What did I miss that everyone else saw?”
Your quote is your budget; now get out and SPEND the budget as intended. It’s not the time to create shortcuts because you did not do Number One correctly, or you want to try and increase your margin. Do the work and do it well.
Make regular and consistent notes of your observations, your thoughts, your decisions, your actions. Your smart phone on dictation can go a long way to help here. Now file your notes, for 99 per cent will not be required. Use those notes — date, time, location, etc. — to answer challenges knowledgably. Facts at your fingertips tell challengers ‘you shouldn’t try and come after us, it will be good money against bad.’
IF A LAWSUIT COMES YOUR WAY, make sure YOU manage the action. Nobody will look after you the way you will. Your insurance adjuster has many claims to handle, all of varying types. It is not likely he or she knows much about winter maintenance; YOU are the expert. Your adjuster claims to be on your side. Your adjuster is on your side of the fence, but is really on-side for your insurance company.
Bring all relevant material together immediately. Not the originals; leave them where they belong. Place a sticky note on the original that it has been copied: ‘Betty Jones vs. My Landscaping Co.’ This same material could become needed for other reasons! Scanning and using thumb drives helps to keep things organized. I reduced seven banker’s boxes of binders to one thumb drive. Make notes of all you remember and think about as you pull relevant material together.
Your adjuster is going to take a statement, since the action is now not yours, it belongs to the insurance company. You are a witness. If your adjuster arrives to find you prepared and well organized, it goes a long way toward shaping his mindset on the next decision.
If you go to pre-trial, your documentation might be handy, although the plaintiff already has a copy under disclosure. The opposing lawyer will size you up as a witness. Are you intelligent, organized, accurate and articulate — or a hillbilly? I play the hillbilly, UNTIL the one critical question is put and then I straighten up, fix my clothes and SLAM my answer home. For example, “Sir, did you on the day of ‘positive,’ and did you ‘negative’ and so you must have ‘positive’, so we can assume ‘negative,’ and being the good snow plower that you are, you would have ‘positive?’ I take my time, straighten up and slam home: “Sir, some of the things you said I agree with, some of the things you said I do not agree with, and you are not to put words in my mouth.” At that point, my lawyer has to leave the room … laughing. It is easier for a human to state a positive than a negative. Starting with a positive, stroking you through the question and ending with a positive, you are likely to answer with a positive — and now the lawyer has you. For you just agreed to the negatives.
Documentation will have influenced the adjuster somewhat, but he doesn’t REALLY understand winter maintenance. Documentation will have influenced the opposing lawyer somewhat, but he is more concerned with your credibility as a witness. Documentation becomes critical only IN the courtroom, because now the documentation begins to speak. But cases rarely make it that far.
IS DOCUMENTATION NECESSARY? YES. Also cumbersome, time consuming and annoying. And 99 per cent of it will never be used, but you have to have it to give yourself (as a witness) confidence and to show you are ready.
In 39 years of service, my company faced seven large cases, each with claims over a million dollars. Five withdrew as unlikely to succeed. Remember, these actions have been taken on contingency, and if the opposing lawyer feels he may be wasting his time he will give up and move on. Two are outstanding but we will succeed. The first of these cases provided their own pictures of the scene while the claimant was being assessed and moved to the ambulance. In these pictures, you can see our vehicle tracks — we had already been on site, showing we had performed reasonably. And the second one will be deflected back to the property owner. We had informed and reminded him that the property had deficiencies and needed attention. We have the emails.
I have offered to help other contractors who say, ‘Oh yah, we have good records.’ But when I arrive in their office to assist ... Nope! Documentation is another tool in the toolbox, not to be forgotten or ignored. Why not use ALL the tools in our toolbox to defend our companies?
Mark Humphries recently started enjoying retirement in Nova Scotia, after operating one of the top snow management companies in Ontario’s Durham Region. He welcomes questions to markh@directls.com.