Sometimes the Best Offense is a Good Defense
While watching countless hours of March Madness over the past few weeks, you may have heard an announcer or commentator say, “the best offense is a good defense.” The same can be said for civil litigation. This article explains how a person or entity can avoid some of the common pitfalls that often arise in civil litigation by taking relatively simple steps before a lawsuit is filed.
Although a plaintiff has the burden to prove their claims, a plaintiff gets to choose when they file a lawsuit. The surprise of a lawsuit can put a defendant on their heels and force a defendant to scramble to try and find evidence and witnesses to support their defenses. Scramble drills can be avoided by doing simple, yet all too uncommon, things before a lawsuit is filed. Below are several things a person can do to be prepared for a lawsuit.
1. Reduce verbal conversations and agreements to writing
One of the more common issues attorneys encounter in civil litigation is a party saying something along the lines of, “but we talked about that” or “we verbally agreed on that.” For example, in cases involving residential remodels, it is common for the homeowner or contractor to assume that a verbal change order or verbal modification to a written agreement will be honored. Unfortunately, people often have differing memories of what was and was not discussed and/or agreed to months after a verbal conversation or agreement, especially when the emotions of a lawsuit are involved. He said, she said situations often create issues that only the finder of fact can resolve.
To avoid he said, she said situations, parties can reduce verbal conversations and agreements to writing. A writing can be as simple as a quick email confirming a verbal conversation or agreement. While probably uncomfortable for some to reduce verbal communications to writing, doing so can solidify a defense that otherwise would have been an issue for the finder of fact. So, when in doubt, write it out.
2. Keep documents, including photos, videos, emails, etc.
Another common thing to see in civil litigation is a defendant believing some documentation exists that refutes an allegation made by the plaintiff but being unable to locate such documentation when a lawsuit has been filed. To provide a simple hypothetical, imagine a businessowner who smartly applies de-icer to the walkway leading to the entrance of the business and keeps a log of the dates and times when de-icer was applied. Unfortunately, the businessowner fails to keep receipts and records of when the de-icer was purchased and applied after the winter season, assuming they got through another winter season without issue. The next summer, a customer files a slip-and-fall lawsuit against the business. While the businessowner knows the receipts and logs would refute the customer’s slip-and-fall claim, the businessowner is left to defend the claim with only their testimony, which is not nearly as compelling as documentation.
Notably, by maintaining documentation before a lawsuit is filed, a defendant can also avoid a spoliation claim. Spoliation can result in a variety of sanctions, including but not limited to adverse-inference instructions at trial, default judgments, and monetary awards to the other party.
The lesson: think before you delete. Having too much documentation is far better than no documentation at all.
3. Get statements from witnesses
Yet another common issue that arises in civil litigation is a party believing a witness will recall a certain conversation or event, but months or years later, the witness says they have no recollection of the subject conversation or event or outright denies the conversation or event took place. For example, imagine a situation where Neighbor A granted Neighbor B permission to plant and maintain a big vegetable garden on a portion of Neighbor A’s property because Neighbor B’s yard had limited sun exposure. Neighbor A failed to read this article and never reduced the grant of permission to writing. Neighbor B obtained help from Neighbor C to help Neighbor B install irrigation for the garden. Neighbor A spoke with neighbor C during the irrigation work in Neighbor B’s presence and explained the situation. A decade later, Neighbor B files an adverse possession lawsuit against Neighbor A, alleging there was never permission for him to plant the vegetable garden on Neighbor A’s property. Neighbor A asks Neighbor C to write a statement that he was present during a conversation where permission was discussed. Neighbor C denies that a conversation with Neighbor A regarding permission ever took place. Neighbor A is left to rely on his word versus Neighbor B’s word.
To avoid the risk of fading memories, a person can obtain a statement from a witness. A statement can be an email or even handwritten (provided that the handwriting is signed and dated). Even better, a statement can be in the form of a declaration or affidavit. As long as the statement is kept (see above for keeping documentation!), the risk of fading memories is drastically decreased.
While a lawsuit cannot necessarily be avoided, reducing verbal communications to writing, storing documents, and getting statements from witnesses are steps people can take to solidify defenses if a lawsuit does get filed. If you have suspicion that a lawsuit may be coming, it is often worthwhile to engage counsel as soon as possible to assist in preparing an anticipated defense. The lawyers at Beresford Booth are available to discuss details and to help you navigate your specific situation. Do not hesitate to contact us at info@beresfordlaw.com or by phone at (425) 776-4100.
