Mitigate your Potential Exposure
I recently, together with DW Fox Tucker colleagues Mark Minarelli and Girish Rao, presented to the Australian Institute of Landscape Architects on the age old topic of what is best termed “risk management”. As the broad concept of risk management is not a topic that mutates – but rather evolves over time – the content of that talk could not be said to have touched upon a lot of new ground. Having said this, the discussion was a timely reminder (at least to me) that one of the best risk management tools is the periodic review of businesses practices to ensure that, to the extent possible, they are in line with recommended practice. To enable (or perhaps encourage) our clients to review their risk management practices, I have reproduced the body of that talk below.
What is Risk Management?
Risk management is not about excluding your exposure to liability. That is only possible in the event you can selfishly control human nature. Most times, disputes arise at the hand of those who are disingenuous and who merely seek to gain an unfair benefit at the cost of others. Those people are the most damaging because for them litigation (as distinct from the law) is a tool to be used for commercial prosperity. They tend to be experienced litigants who, if you are particularly unfortunate, do not perceive that commercial dishonesty is tantamount to criminality.
Litigation is extremely time-consuming, stressful and expensive. More often than not, litigation does not run to a final judgement – as parties eventually agree to a compromise of the dispute. However, too often litigation is capitulated by one party who simply cannot afford the toll it takes on their time and finances. As was said by the former Irish Judge Sir James Mathew "In England, Justice is open to all, like the Ritz hotel". Unfortunately, such a sentiment is perhaps even more accurate today than it was in the late 19th century.
It is with this in mind that I describe risk management as a concept of reducing exposure to potential liability by implementing practices in everyday business dealings to ensure that, if a dispute does arise, you are placed in the best possible position to prosecute or defend your case.
So what is the key to reducing risk? The answer is a solid paper trail. Why? Well, as was said by Abraham Lincoln: "no man has a good enough memory to be a successful liar". But given an absence of documentary evidence, some people have enough acting talent that, when combined with a lack of honesty, it can cause history to become skewed in the eyes of the Court and, at times, in your own memory.
If I take what I would assume to be a common scenario to you, being the entering into of an agreement with a client for work, too often I see the scenario in which parties subsequently fall into dispute – each party claiming (whether honestly or not) that the other has failed to perform his or her obligation. However, the negotiations surrounding the entering into of the agreement, the day-to-day performance of the agreement, and indeed the agreement itself, have never been documented.
In the absence of a well drafted agreement, it can be difficult to advise a party on their rights and obligations under an agreement and, more importantly, the prospects of successfully prosecuting or defending the dispute.
It is my experience that the time, stress and expense of litigation is often directly caused by having to establish the existence of an agreement, establish what its terms are, what the effect of an agreement is, and establish what did or did not happen prior to or during the course of the agreement giving rise to the dispute.
Where these matters are not documented, a lawyer (and subsequently a court) will be required to consider the merits of a dispute largely on the basis of oral evidence. In that event, the most credible witness will be preferred. This is not necessarily the person who is the most truthful. I have seen impressive, educated and honest clients fall under the pressure of a good cross-examination largely because their honesty permits them to give concessions that their somewhat less honest opponent is not prepared to give.
It is much harder to discredit a document which appears to be a document created by a person or business in the course of the operation of that business.
Combining oral evidence with supporting documentary evidence will put you in the best possible position to be successful in stemming a dispute before it becomes actively litigious and, in doing so, you successfully mitigate your potential exposure.
To this end, I encourage the following to become a common practice in your day-to-day business operations:
- Take contemporaneous file notes of all telephone conversations you have which are business related (which file note should record the names of the parties to, the date and time of, and the matters discussed during, the conversation).This is where technology has largely removed any tenable excuse for failing to properly record conversations. For example, my iPhone now allows me to verbally dictate a file note into a draft email (which Siri converts into text as I talk) which I can then send to myself to form part of my records.
- Take contemporaneous file note of all meetings recording the parties in attendance at, the date and time of, and the matters discussed during, the meeting.
- Ensure that all conversations where new business arrangements and agreements are formed, or where business dealings are clarified or amended, are followed up with a letter to all other parties setting out what was discussed and agreed – even before any agreement is concluded. That way, if there is to be disagreement as to what was discussed and agreed, that will come to light quickly and hopefully before any harm is caused to the relationship.
- Keep a printed or electronic (or both) database of emails (and other electronic forms of communications) and letters sent to you which is logically organised and easily accessed.In this respect, it should also be remembered that email communications are formal means of communication which can be relied upon in litigation proceedings. It is inadvisable to think that emails are less formal means of communication and, therefore, that you can include something in an email that you would not include in a letter. Everything is capable of being critiqued by a court.
- Keep a record of when all communications are received and sent – such as a mail book recording the date on which correspondence was actually sent and received (as timing is a very important issue in a lot of disputes and the date printed on a letter may predate the actual date the letter was received by a considerable amount of time).
- Speak with your solicitor (or such other professional advisers as may be appropriate) as soon as you think an issue has arisen or may arise so that steps can be taken to avoid the issue escalating.
- Seek legal advice (or such other professional advice as may be appropriate) prior to concluding any agreement so that you can be assured that all matters which should be dealt with in the course of your negotiations are covered.
- Most importantly, have your agreements in writing and drafted by an appropriately competentAnd as a ‘gold star’ tactic, invite your legal advisors to learn the intricacies of your business and its practices. Have them review your current contracts (such as, for example, employment contracts, contractor arrangements, leases etc.) and allow them to point out where you may be exposed to potential risk and/or liability (either now and/or in the future) and give suggestions as to how those risks can be ameliorated or eliminated. That way, you will have a trusted advisor (a surrogate in-house counsel) proactively looking to protect your business and put you in the best possible position to reduce your exposure to future events that may adversely affect your business in years to come.
