Beat Lawyers At Their Own Game
Deaver Brown, Author
Brown co-founded the Umbroller stroller company, American Power
(APCC), and Simply Media. He published The Entrepreneurs Guide
with Macmillan in hardcover and Ballantine in mass market paperback.
He published a business series of CD-ROM’s with Macmillan and
another series with Simply Media. Brown graduated from Harvard
College and Harvard Business School. He has published numerous
articles in trade journals and business magazines.
Copyright 2001
Simply Media, Inc.
Lincoln, MA 01773-0481
www.simplymedia.com

About the Survival Kit Series
Our Survival Kits are designed to be quick, concise, and much
easier to read than most reference books. As in true wilderness
survival kits, the key to success is limiting your materials to the
least amount of weight necessary. This provides users with fast,
light, yet complete packs, and ensures easy travel without excess
baggage.
At Simply Media our hardest task is eliminating materials that
are not absolutely necessary for traversing the subject’s territory.
We take the time to make each of our Survival Kits as short and
concise as possible so you can learn the most important facts
with a fast cover-to-cover read.
About the Legal Survival Kit
The Legal Survival Kit pares down the huge amount of legal
information available, and provides you with the essentials for
your legal protection and planning.
In the spirit of “less is more,” the contents are concise and divid-
ed into small individual categories for faster reading and better
comprehension.
2
www.simplymedia.com Legal Survival Kit

Background
How We Got to Where We Are
These two rules have led to an explosion in
American litigation. Well-financed lawyers can
fund clients to prosecute. If the funded client
loses, there is no financial consequence for the
plaintiff in all but the rarest of cases.
Is it any wonder, then, with these rules, that
we have so much litigation in the US and other
industrial countries so little? Other countries
have these guys under control.
These are the facts of life in the American
legal world. The American Trial Lawyers
Association is alive, well, and vigorously pro-
tects its privileges. It is the largest political
PAC, with all the implications of that powerful
position, protecting the interests of litigators
and defenders. Remember that for every liti-
American lawyers used to belong to an elite gator there must be at least one legal defend-
club that “did the right thing,” or so we er, usually another lawyer.
thought. There have always been bad lawyers,
Your Role in the Legal World:
ambulance chasers, and the like. Even
Winner or Loser
Shakespeare said, “First, kill all the lawyers.”
Of the major industrial countries, only the In the current legal environment, you will
United States permits: either be the winner or loser in your legal
affairs. As with most of us, you will sometimes
(1) Contingency law suits. That is, the win and other times lose. The objective of this
plaintiffs do not have to bear any costs other CD -ROM is to keep you out of litigation and
than a potential percentage award to the help improve the odds you will win if you
lawyer. become engaged in what has become a wide-
(2) The loser does not have to pay the legal spread American activity.
costs of the winner.
3
www.simplymedia.com Legal Survival Kit

dren’s information, and so on and so on.
You cannot opt out since anyone can sue you
2. Set up a word document file where you save
for anything, and these days, they often do. At
this information plus each form you create for
work or at play, at home or on the road, you are
later reference. If you wish to also keep this
always vulnerable to legal attack. Our efforts
record elsewhere, do so too (duplication will
are devoted to provide you the best advice and
only help you). You should also keep a hard
tools to avoid litigation and prevail if it should
copy file of signed documents and your key
occur.
fact documents.
Insurance: Umbrella Liability
Coverage to protect you from 3. If you do not have a fire proof safe, get one
the lawyers on the prowl and put these documents into them. The
office supply stores (e.g., Staples, Office Max,
and Office Depot, and their on line affiliates)
You should consider adding an umbrella liabili-
have them and will usually deliver at no
ty policy to your homeowner’s policy immedi-
charge, so you don’t break your back carrying
ately to protect you from unforeseen lawsuits.
your safe home. They cost about $150 each.
An annual additional liability policy of up to $1
You can get them cemented into your base-
million often costs no more than $100 per year.
ment or into your floor for extra protection.
This not only protects you from additional
Do this too, if you can.
losses should they occur, it also usually pro-
vides for the insurance company to cover and
4. Review these forms and consider doing well
manage all legal costs and activities—so you
care for yourself legally in advance of any
can get on with your life in relative peace and
prospective problems. This means doing
quiet. Do it!
proactive things you may not need immediate-
This Guide With Step-by-Step ly (important but not urgent, a category we all
Advice Per Form tend to ignore at our peril), such as wills, pow-
ers of attorney, trusts, medical instructions,
and the like. If you don’t do them immediate-
We have provided you with this Guide in addi-
ly, write out a schedule in which you will do
tion to step-by-step advice for each legal form.
them—and then do them.
After each document, we have provided specif-
ic advice for that form or letter in a “review
5. Encourage other members of your immedi-
list”. This way, that advice is specific to the
ate and extended family to do the same kinds
form and not over generalized here.
of things. You will give them a great gift by
Notwithstanding that, the following is general-
doing so.
ly useful when filling out the forms and letters.
Action items:
1. Prepare and keep a separate document with
the key facts pertaining to each individual 1. Get additional umbrella liability
and/or corporation and/or other entity you insurance policy coverage.
enter into these documents. For individuals, 2. Get a home safe.
this should include their legal name, address,
social security number, passport number, other
pertinent numbers (such as Medicare or
Health Plan number), date of birth, date of
marriage, date of divorce if applicable, chil-
4
www.simplymedia.com Legal Survival Kit

Introduction
“ You Have To Know The Law Well
To Make It Work For You.”
boldly than nonlawyers because they have
been trained in the law, have experience and
feedback from their prior activities, and there-
fore have a better sense of how to use these
tools (i.e. the forms) to expedite and formu-
late agreements for themselves and their
clients.
If you are not a lawyer, you should restrict
yourself to the simpler forms or fill out a form
you need and then request a lawyer to review
it on your behalf. Your very act of selecting and
completing certain documentation in advance
Clarence Darrow, the great trial lawyer, said of turning the matter over to an attorney will
this long ago. Justice Oliver Wendell Holmes save them time and therefore save you money.
admonished a participant in a particularly ugly
case, “Do not make the mistake of confusing
justice with the law.” Finally, one can com-
plete that thought with Winston Churchill’s
repeated comment, said in various contexts, Audio One: Introduction
that democracy, and the rule of law, although
messy, is the fairest system people have yet
invented.
Our primary objective in this Guide, with illus- Tip: If you ever feel “concerned,”
trative audios, is to provide you with a broad “worried,” or “uncertain” about any-
background of the legal system and suggest thing discussed or presented in a legal
the appropriate tools to use when dealing with form, that is your tip-off to contact a
the legal system in general and lawyers in par- lawyer for clarification and implementation.
ticular. Our 600-form section is used by many Self-help forms should never be used unless
practicing lawyers who, like you, can benefit you are entirely confident of your actions. We
from prepackaged forms that can be edited do not offer legal advice. We offer personal and
upon demand. Lawyers can do this more business advice about how to interface with
5
www.simplymedia.com Legal Survival Kit

the legal system and the lawyers within it. This Guide or Survival Kit is intended to guide
you through the legal thicket. The primary
Our business advice to you is to select the form purpose is to inform you of your options, sug-
suitable to your needs. Then fill in the blanks, gest pitfalls to avoid and opportunities to seek,
as you believe appropriate; and then have a as well as make you better informed when dis-
lawyer review it. This approach will save you cussing these matters with an attorney when
time, money, and permit the lawyer to focus on you believe it necessary.
the legal issues, not the paperwork. If your
lawyer advises against the form, take his or her
advice.
Simply Media’s role is similar to Stanley or
Black & Decker in the tool business. We all
make great tools, but we can only provide you
with a limited amount of teaching instruction,
and that is limited to business and personal
advice. As in a construction project, the tools
are usually better used by a professional, in
this case a lawyer, especially if a complicated
project is at hand.
Our purpose in this disc is not to give you
“legal” advice. The legal trade union, led by
the Trial Lawyers Association, has prohibited
us from doing so in any event. If you think the
Teamsters are tough at guarding their turf, you
have seen nothing like the Trial Lawyers
Association.
They are the largest political action group
(PAC) and reportedly can intimidate even the
President of the United States. So, they have
Did You Know?
effectively intimidated us, and we only give
business and personal advice in this CD-ROM.
Japan, unlike the US, graduates
Not withstanding this restriction, we believe
more engineers each year than
the most important part of the law relates to
lawyers.
how individuals and corporations use the tools
of the legal trade. The law is a means to an
end. It is not the end in itself, except for the
lawyers themselves who practice the trade.
6
www.simplymedia.com Legal Survival Kit

Written Agreements
Their Purpose
such as a loan to a family member, or property,
such as the use of a piece of equipment. In
fact, in personal situations, just the request for
a written agreement often dissuades other
people from “borrowing” your money or prop-
erty. Once they realize the activity will be doc-
umented, they realize they have undertaken
obligations of repayment or return of property
that they never really intended to execute.
Written agreements are especially important
among friends, family, or close associates
because one of the best ways to lose a friend or
other close associate is to loan him or her
The most significant thing about a written
money or property. A written agreement at
agreement is that it clarifies what “you get”
least allows you, them, and the world to see
and what “they get”. The most practical ben-
what the actual agreement was. In summary,
efit of a written agreement is that, unlike an
then, written agreements are just as useful in
oral contract, memory cannot alter the facts.
personal as in professional or outside circum-
On the simplest of levels, an agreement
stances.
reminds us of what we agreed to in order to get
what we wanted. It also, of course, should
serve to remind the other party of what they
agreed to in order to receive what they want-
ed. This may sound overly simplistic; but, in
Audio Two: The Purpose of
fact, most of us have wavering memories that
Written Agreement
favor our point of view; with the lapse of time
it is much easier to forget our obligations to
others. Written agreements identify these
issues and can help resolve these problems.
Your Responsibilities To
Others: What You Owe Them
Furthermore, written agreements are often
especially useful in personal situations because
The leading cause of legal conflict is people
they clarify the terms of an exchange of money,
7
www.simplymedia.com Legal Survival Kit

es and overreach on behalf of their clients.
and companies on one side of the issue or the
This stems from both their training to be vig-
other not recognizing their responsibilities
orous advocates and their compensation meth-
under their agreement or agreements to the
ods which relate to billable hours, the more the
other party or parties. In simple terms, they
merrier for them but not for you. Therefore,
did not understand or did not properly review
you are advised to seek out the other party
what they had to pay or do to satisfy the other
independently and try to negotiate a revised
party. Often, once the bickering begins, both
approach to your dealings first. If a lawsuit
parties begin to point fingers at the other party
breaks out, there will be time enough for the
and overlook their own responsibilities.
lawyers to try to settle the matter at a later
date. Even after litigation has commenced,
This difficulty usually arises because one or
the best hopes for a negotiated settlement
both parties ignore the reason the other party
remain with the parties who have the most to
signed the agreement in the first place. This
gain from prompt resolution prior to extended
reason is of “little” interest to the other party
litigation and trial.
because this is not why “they” signed the
agreement. However, if you wish to avoid
When conflict arises over an agreement, it is
legal problems, it is always imperative you
important to try to openly discuss this point as
understand the motivation of the other party
if it is a common problem without assigning
so you can prevent legal conflict from arising.
blame to the other party. Many times a frank,
non-judgmental conversation can put the
agreement back on track. Bite your tongue
and stay calm. Try this approach if you can
Audio Three: What You bring yourself to do so emotionally.
Owe Them
Above all, try to keep in mind that it is usually
in both party’s interests to resolve a conflict
early. Even when litigation is undertaken, the
vast majority of cases are settled prior to trial.
Recommended approach: When conflict
Why? Because the litigation process usually-
develops, identify what the other party wants.
consumes more time, emotions, and money
This often changes due to circumstances relat-
than the case is worth. Therefore, you are well
ed to the parties or the environment as a
advised to seek out advice about how to
whole. For example, in a poor economy, people
resolve these issues, such as we offer in our
and institutions get more desperate to get
Negotiations Handbook and Conflict Resolution
what they want; this often serves to inflame
discs.
problems. Then determine if you can provide
what they want in full or in part. At a mini-
mum, discuss with the other party their inter-
ests in the contract. As you do this, they will
usually become more amenable to discussing
the issues you have with regard to the agree-
ment. If you approach this matter patiently,
you should be able to alter the odds in favor of
a negotiated compromise satisfactory to you.
Lawyers tend to stir the pot when conflict aris-
8
www.simplymedia.com Legal Survival Kit

reassuring feeling if you are “relying” on a pre-
dictable outcome.
You Don’t Say
On rare occasions, such as note collections, the
results are indeed generally certain and you
The essence of freedom
“ ” can proceed with relative certainty that you
is the legal right to be will get judgment. However, judgment is not
left alone collection. If you are pursuing collection
against an insolvent, or financially shaky,
Justice William O. Douglas defendant, you are usually better off with a
1961 negotiated settlement they are comfortable
with to assure eventual collection. So once
again, what seems certain in the law may not
be enforceable in reality (i.e., they can’t or
won’t pay and bankruptcy or other approaches
Justifications For Why You Will will prevent you from collection).
Win The Dispute
Tip:: Court is a poor place to win back
Very rarely does anyone “win” a legal dispute.
points you could not obtain in initial
Both sides must hire and pay lawyers, who are
contract negotiations. Interestingly,
the ones who win because they get paid. Most
Court often works very well for a defen-
suits are settled for a walk a way (no one gets
dant trying to get out of a “gotcha” clause.
anything) or considerably less than they would
“Intent” or what the parties “meant” is very
have gotten if they had settled early in the dis-
important as a mitigating factor. Tricks and
pute. In some plaintiff cases, against insurance
gotchas don’t help the plaintiff or stronger
companies for example, some legal positioning
party in these matters as much as you might
can be useful to establish the value of the case.
think; sometimes they do, of course. Better to
Aside from this kind of suit, most legal suits
use a “gotcha” clause as leverage to settle
such as in divorce, collection, or other contract
other issues.
matters, the parties would have been prudent
to seek negotiating assistance instead of legal
“ They Have The Money And More At Stake;
counsel.
So They Must Settle On My Terms.”
“My Lawyer-Friend-Associate Told Me We
Those with the money are more apt to stand
Would Win”
and fight than ever before. The days of insur-
ance companies rolling over, for example, are
People often “take away” this thought from
long gone. The increase in litigation has
discussions with various people. The more
reduced organizations and individuals’ fear of
likely truth is that you were advised that you
the process. In fact, the new conventional wis-
“could,” not “will,” win. Once the people in
dom is if you don’t stand and fight, more peo-
black robes (judges) get a hold of a case, you
ple will attack you because of your own per-
are in the legal gristmill and most results are
ceived weakness.
uncertain. If you want proof of that uncertain-
ty, remember how often cases are overturned
Plaintiff lawyers went to the well once too
on appeal. This means that another set of
often: individuals and companies have
judges disagreed with the first group. Not a
9
www.simplymedia.com Legal Survival Kit

often the case in disputes. Payment terms are
learned. In a football analogy, the quarterback
examples of such clauses. You may have
called this play once too often and now the
agreed to pay them in 60 days, but wanted to
defense is all over it!
pay in 90 days. What’s the big deal, you may
have thought, if you pay just thirty days late?
Tip: Since you know settlements values
Well, in fact, their entire banking relationship
are down, consider taking less. Splitting
may be in jeopardy if you do not pay within 60
the difference is usually the best
days. Or, they may have been only able to set
approach since neither side loses face.
up their payment plans to their own vendors
This is not legal advice; this is a quick practi-
strictly based on their securing your firm writ-
cal approach.
ten commitment to pay in 60 days, promptly.
Common Complaints In
Note: This also may be part of the “gotcha”
Disputes That Relate To The
Problem Of Responsibility school of negotiating. One side tries to bludg-
eon the other into agreement on points they
really do not want to accept or cannot live up
This section is about how you got into trouble.
to. You are much better off openly discussing
Understanding how you got there should help
these issues early and ensuring that the other
you get out this time and hopefully not fall
party can live up to this part of the contract. It
into the same trap next time. This section
is one thing to get commitment on something
describes the personal and business reasons
they do not want to do, but can do. It is quite
why you got to where you are in a dispute. It
another to secure agreement on something
is not about what the legal ramifications of
they really cannot do. If this is understood
your case or potential case are. Lawyers are
early, you can often work around it. If you can-
paid, and paid well, to unscramble these mess-
not work around it, you may be better off not
es. Our purpose here is to advise and forewarn
making the agreement since it cannot be lived
you in advance of ways to avoid these conflicts,
up to later.
and their ultimate resolution through negotia-
tion or the use of lawyers.
“But They Agreed To Do It!”
“ That Wasn’t Why I Signed The Agreement.”
They may have agreed to do it. But, if you
forced them into a corner, and they felt they
When a dispute arises, many people say, “That
had no other option, they may have signed the
wasn’t why I signed the Agreement.” They
deal and hoped to renegotiate out of this point
continue by saying, “That point isn’t impor-
later.
tant” or some other such comment. This may
well be true for them. But the point that you
consider obscure or unimportant may be the
very reason they did sign the agreement in the
first place. Without your having given in on
that point in the initial negotiations, they may
well not have signed the contract in question
at all.
In other words, what may seem trivial to you
may have been critical to them. In fact, this is
10
www.simplymedia.com Legal Survival Kit

Warning sign: You pressed hard on certain W hat The Agreement Should Say For Your
points and got their commitment. They told Benefit
you “we are going to have a hard time with
that” but you pressed forward anyway, disre- In adjudicating (deciding) a case, the Court
garding the flashing yellow lights. first looks at exactly what the agreement
states. The Court tries to interpret the agree-
It is a lot harder to get out of an agreement ment “strictly”, or according to what it actual-
than into one. Do not rely on a legal document ly says. Ambiguity is what the potential
to trap or compel the other party to live up to “loser ” tends to emphasize. The potential
terms they have warned you are burdensome. winner focuses on the actual words, written
You may eventually prevail in court. But you terms, and conduct, and thereby seeks “strict
undoubtedly will have a lot of costs and heart- construction” of the language.
burn along the way to this resolution, even if
you achieve it. And, in the end, you may not Short, to-the-point contracts help here. Well
collect on your judgment, even if you get it, known “boiler plate” or standard language
due to defendant insolvency, being overruled helps your case because the Court “knows”
on appeal, or for a host of other reasons. what it means. The longer the contract, the
better the chance to find a loophole. So, why
In fact, this uncovers a major weakness most do lawyers write long contracts? Because they
lawyers have. They focus almost exclusively are paid by the hour and keep thinking they
on a court victory, or a “judgment,” without will “help” their client by piling on more lan-
giving proper weight to the probability of col- guage. Usually longer contracts tend to
lection of an award, if granted. As a civilian, or obscure the core agreement and, worse yet,
nonlawyer, you should use your business skills often introduce contradictory language that
to determine whether the defendant can in defendant lawyers love to jump on and use
fact pay; has a habit or ability of wiggling out of against the plaintiff.
judgments; and the like. In sum, a lot more
judgments are granted than collections made. As a defendant, pray for long contracts and as a
Before becoming a plaintiff, be sure you have a plaintiff, fear them!
solvent defendant with a habit of paying when
they lose. Reconsider Your Position
Common Approaches in Rarely does anything work as well to calm ten-
Disputes: Negotiations to sions and set the tone for a solution than an
Hardball tactics apology and offer to the other side to reconsid-
er your position. Your next step is to suggest a
time out, just as schools do, while the parties
rethink their positions and try to understand
the other side’s position.
Audio Four: Common
Approaches Start with reconsidering your objectives. If
That Can Help you want to keep doing business together,
and/or keep the relationship in tact, then hard-
ball legal tactics rarely work well. In addition,
consider whether the legal effort is worth the
11
www.simplymedia.com Legal Survival Kit

not as “cute” or “subtle” as they think and
cost. Conflict is more easily enflamed than
often telegraph their intentions early on. If
extinguished. Effort to extinguish conflict
the other side starts out reasonably, you can
early can produce surprisingly good results for
often resolve the matter easily. If they start
both parties.
out tough, of the “hard ball” school of negotia-
tions, you know that you have to prepare for
If You Think Litigation is Inevitable, Get litigation.
Advice Promptly
Interesting point: Very few negotiations fall
into the middle ground of balanced discussions
It is under this circumstance that lawyers are
and approaches. So, your challenge is to figure
the most useful. Your first step should be to
out whether you are dealing with reasonable or
consult your lawyer vigorously about options.
hardball people. Then you can proceed
Often the best solution is to file suit, or answer
accordingly.
their complaint, and then, with both sides’
stakes in the ground, quickly move for a nego-
Just because you are right or wrong up to this
tiation session to see if a resolution can be
point, does not mean the trend will continue.
reached. Why? Because you have both proven
You can make up a lot of lost ground by acting
how tough you are. Now you can see what can
properly with regard to the agreement in dis-
be done. Early compromise to avoid litigation
pute and noting how your opponent is not.
is often seen as “weakness.” So, seeking a ses-
The worse your case, the more important it is
sion after complaints, answers, and counter-
to mitigate your damages to minimize the ulti-
claims have been filed, takes you out of this
mate negative result. It is no different than in
arena of perceived weakness.
sports situations. When your opponent gets
ahead, they tend to get confident, forgetful,
If Inevitable, Invest In Your Initial Answer And and lazy. In fact, the potential loser can use
Counterclaims this human tendency to sit on the lead and be
sloppy to reduce their ultimate damages and
even pull out a victory in the end—just like a
Now is the time to plan your defense and
come behind win in sports!
counter-attack. Contrary to what
many lawyers think, they are
Defensive Actions
This section deals with such actions as inter-
You Don’t Say preting agreements and defending your inter-
ests with the most appropriate methods. This
part also suggests ways for you to minimize and
The shortest distance
”
“ avoid expense, conflict, dissension, and trou-
between two points is ble.
rarely a straight line in
the law. Much Trouble Can Be Avoided
Difficult neighbors, relatives, employees, boss-
Deaver Brown, Author es, subordinates, town boards, hazardous con-
ditions, barking dogs, dangerous equipment,
12
www.simplymedia.com Legal Survival Kit

tion agency, they are usually empowered to
teenagers on the loose, contracts, agreements,
settle claims for at least 33% off the face value.
inheritances, or other relationships are every-
Keep this in mind if you can settle the matter
where in most of our lives. The best single
with cash. If not, keep reading.
piece of advice is given under the section in
the text entitled your inalienable right to back
up and away from problems.
In many situations, you cannot simply run out
Audio Five: So You Got a
the door or leave town. But you can reduce or
Legal Letter
mitigate your damages or problems by decou-
pling, stepping back, or simply getting out of
the way. The most difficult issues relate to
events that cannot seemingly be changed:
If the letter is from a lawyer, it is usually from
boundary lines, divorce settlements, work rela-
a collection lawyer who is also usually empow-
tionships, teenagers, or agreements. Over
ered to settle a claim for something less than
time, though, you can substantially adjust your
face value. Good lawyers do not generally
activities and, essentially, duck.
involve themselves in collection matters you
would be involved in other than large corpo-
Small appeasements can go a long way. Turn
rate matters. So, you usually are not dealing
down the radio or chain your dog for the neigh-
with the A team here.
bor. Praise the difficult relative to others so it
gets back to them. Maneuver around to get a
If the letter is about anything but straightfor-
new boss or subordinate. Ease out the difficult
ward collections, and is not a simple request
employee. Resign from a troublesome town or
for information, or forbearance, such as keep-
nonprofit board or appease them. Give the big
ing your dog chained up or quiet, complying
dog away or don’t get a new one. Make con-
with a zoning law, or other straightforward
tingency plans for poor, weak, or onerous
matters that you can promptly comply with if
agreements, contracts, or settlements. Work
you so chose, then you need to consult a lawyer
on these issues continuously and you will be
promptly for advice as to how to proceed.
surprised at how they ease away or at least the
decibel level is reduced.
The Tough Guy Letter.
Visualize a simple image: It is a lot easier to
This kind of letter details how bad it is going
dam up the Mississippi at the headwaters in
to be for you if you do not do everything they
Minnesota than when it is a mile wide in
want you to immediately. This is a standard
Missouri. Head off trouble early and you will
off-tackle play these days. It is well known.
benefit handsomely at a much lower cost.
Even most lawyers don’t expect it to work very
W hen Trouble Calls In The Form Of A Legal well since it has become so common and famil-
Letter iar. So this circumstance gives you one key
advantage: the other side knows they are
“lying” by saying it is worse than they will set-
Recognize and internalize immediately that
tle for. Therefore, you have the moral high
you have already “lost” something because you
ground and can use it to settle for less.
are involved and were not able to head off the
problem earlier. If the letter is from a collec-
13
www.simplymedia.com Legal Survival Kit

cussing with them what you “can” do, remind
Collection Letter—Asset With a Lien Such As
them of this problem of potential broken
a Mortgage or Car Financing
promises—and you do not want to go down
that road nor do they want you to do so. That
If it is about an asset they have a lien on such
may help. If not, go back to the lawyer option
as your car or house, they have all the leverage
again.
and all the advantages. If you truly cannot pay,
work out the best payment plan you can and
Collection Letter—Unsecured Debt
contact them to see if it will be acceptable to
them. If so, live up to it and try to regain your
You have most of the advantages in this cir-
financial footing. If it is not acceptable to
cumstance. They have no lien or asset to
them, explain that you must now see a lawyer
repossess. They must first use the court
about how to deal with the problem. Ask them
process to get a judgment that they can later
again, if they won’t reconsider their position.
convert into a lien. Then they can apply the
If so, wonderful; if not, get a lawyer.
lien to something you own. This is a long
expensive process that no collection agent or
Remember that if you can pay, consider care-
lawyer wants to undertake. This is especially
fully exactly what you can pay and when you
true since most of them are on contingency,
can do it. Virtually all of us “know” when we
which means they only get paid a percentage
are late on a mortgage or car payment. You
of what they collect. These circumstances
“know” the problem. Only you can determine
provide you with substantial leverage to rene-
whether you can get current, or up to date
gotiate your debt. If you haggle a bit, you can
again, or not. If you can, or have a good chance
often reduce the face value of your debt, with-
of it, OK; deal. If not, see the lawyer. If in
out accrued interest or fees, to 50% or less.
doubt, see a lawyer. At this stage, you do not
want to commit to an unrealistic payment
Collection agencies generally get 25% to 50%
plan. If you do, and you break the plan, it will
of what they collect. So the firm that “owns”
count against you with the collection agency or
your debt has already given up to some extent.
lawyer and they will only attack more vigorous-
As a result, they are usually vulnerable to giv-
ly on their next contact with you. When dis-
ing up more, especially if convinced to do so by
the collection agent or attorney who, in this
circumstance, is your ally because they benefit
from a quick settlement—which gets them a
quick commission.
You Don’t Say Tip: If you are having trouble with an
unsecured debt such as a local contrac-
You can discover what
“ ” tor or a credit card bill, and believe a col-
your enemy fears most lection agent is in your future, consider a set-
tlement for a partial payment with no bad
by observing the means
impact on your credit history with the compa-
he uses to frighten you.
ny in question. 50% to 75% will generally do it.
Sometimes you can even set up a payment
Eric Hoffer, Philosopher and plan. If you don’t feel comfortable doing this
Longshoreman yourself, see a lawyer. But, generally, if you see
14
www.simplymedia.com Legal Survival Kit

you can usually get a broad release—for even
a lawyer you have to pay more than the value of
broader than the single claim—especially if
the bill. Pay the bill if you feel nervous.
you bring the check. The presence of a check
Otherwise, negotiate or see a lawyer.
will usually encourage the other side to take a
Collection Call lesser amount. Use this advice prudently and
you should be able to save yourself some
money in Small Claims court. They will usual-
Same situation as described in the collection
ly let you try to work out the matter with an
letter sections above.
arbiter first, with you using the advice above.
W hen You Are Sued If that does not work out, you will be forced to
present your case to the judge sitting in court
that day and he or she will determine the out-
Get a lawyer—except for small claims court
come.
where you will usually do better answering
complaints yourself. There are upper limits on
How Courts Approach And
the claims that can be brought against you in
Interpret Agreements
Small Claims court. These claims usually can-
not exceed $2000. Therefore, the expense of
hiring a lawyer usually exceeds the amount of Courts check out two things prior to applying
the claim itself, making it more productive to the laws to your case:
do the claim yourself. Notwithstanding that
fact, you can often do well to run your What did the agreement state?
“defense” and potential “counterclaim” by What did the parties mean or intend?
your attorney to get their quick read on the
matter. This small investment can often pay a
substantial dividend for you in either negotiat-
Audio Seven: The Court’s
ing your claim with an arbiter at small claims
Approach And
court or with the judge.
Interpretation
Occasionally, Courts will decide to intervene
Audio Six: PMI Thinking promptly by providing an injunction or
restraining order in the case of extreme behav-
ior such as egregious conduct, over-reaching, or
lawless activity. Although most litigants pray
for relief (i.e. in layperson’s language, “ask for
Before you see a lawyer regarding litigation, help and enforcement”) on these grounds,
write down the issues—their pluses, minuses, Courts are reluctant to enter into these types
and interesting points. Be sure to line up the of immediate enforcement activities and gen-
counter claims. erally do not act until a trial is conducted (or,
as in most cases, the parties reach a settle-
Small Claims Court ment).
They will encourage you to negotiate. Take a Venue, or place of the lawsuit, can be very
check with you. No matter what the claim, important for these purposes. Law is politics,
15
www.simplymedia.com Legal Survival Kit

of course, as one can tell by a casual reading of on this approach the most. Why? Because
newspapers. Just two examples: in a heavily “What the Agreement Says” works against
Democratic state like Massachusetts, liberal them. The best way to beat this approach is to
causes such as those of tenants (the disadvan- use a short agreement with the Entirety of the
taged) will usually be heard with more favor Agreement clause; in layperson’s language this
than in a Republican state. In a Republican means, “If it isn’t written down here, it doesn’t
state, judges would be more likely to uphold apply, unless it is written down later and
the landlord (property rights). So, the court is signed by both parties.”
more apt to make a finding in favor of a tenant
in Massachusetts and a landlord in a The recommended language for your agree-
Republican state. ments to cover these two issues (venue and
intent) is:
Action Item: In your agreement, be sure to
establish the venue, or place for resolution, in “This Agreement embodies and sets forth the
the jurisdiction apt to be most favorable for full understanding and agreement between
your cause. In our case at Simply Media, we the parties. No change can be made except in
have locations in both Massachusetts and New writing and signed by both parties. Any dis-
Hampshire. For issues that the Democrats putes must be brought in__________city, in
________ county, ___________ state and in no
favor, we write in the venue as Massachusetts.
For those that Republicans are apt to favor, we other venue.”
write in New Hampshire.
Dealing with intent of the parties is a more
complex task. The best antidote is to write in
a clause commonly referred to as “Entirety of
Agreement.” This clause typically states that
the Agreement embodies and sets forth the
full understanding and agreement between
the parties and nothing can be changed except
in writing. This is not a perfect solution since
lawyers often are able to persuade judges to
“go behind” the written agreement; but it is
generally the best you can do.
90% of discovery and the associated costs prior
to trials relate to discovering what the intent
was and what every one “meant.” In simple
terms it means “what did you really mean”
when you signed the agreement. Clearly this
is a murky area subject to much conjecture and
questioning.
The weaker party in a conflict generally relies
16
www.simplymedia.com Legal Survival Kit

Agreements between
Friends or Relatives
have the ability to decide when, where, and if
they will make any repayment of any kind.
This attitude usually comes about because the
potential recipient is used to receiving “gifts”
or their equivalent from the grantor. This is
quite clear in the case of children and poor rel-
atives. It is not as obvious in the case of
friends, business associates, and younger peo-
ple without longer business and/or life experi-
ence.
In these cases, it is even more important for
the parties to have what they term in the law,
“a meeting of the minds,” about repayment or
return of rental property. The very process of
discussion can flush out intent and usually lead
Audio Eight: Agreements to a productive solution.
Between
Friends Commonly asked questions are:
“Why do we need an agreement?
“Don’t you trust me?”
Financial and legal agreements between
friends and relatives are the most challenging
These lines tend to back us off. The natural
ones to discuss, create, and enforce. In your
response is to say, “No, I do trust you and....”
discussion of these subjects, you should use
the document creation process as a means to
The best answer is, “It has nothing to do with
flush out what the parties really mean. For
trust; it has to do with clarity. If we write it
example, a request for a loan or a rental is often
down, we will remember it clearly. Memories
just a plea for a gift. The requesting party may
serve to change events; or, like the old game of
think that somehow, some day they will repay
whispering around the table, once a line is
the grantor; but, in fact, they intend to receive
repeated several times it loses its original
the money or property and then unilaterally
17
www.simplymedia.com Legal Survival Kit

selves so they “own” the agreement and its
meaning. And, of course, one of us might not
repayment and collection terms. If they make
even be around to explain the matter.”
a silly recommendation on a specific term or
terms, usually just a lifted eyebrow will get the
Often this kind of discussion causes the poten-
terms into the right “ballpark.” These
tial recipient to drop their demand entirely.
arrangements are never easy and certainly wor-
Since they never really intended to repay the
risome. To minimize your potential financial
loan they have requested nor pay for the rental
and emotional losses in the matter, let the
they wanted, they do not want to enter into a
potential recipient set the terms initially so
formal agreement so will often walk away from
you have the least to haggle about. Then gird
it entirely when confronted with your require-
your loins as you go into battle to hammer out
ment to sign a formal agreement. Your best
the most reasonable and prudent terms you
move is to give them room to retreat and avoid
can, always keeping in mind that if they “walk
moral spin so they do not feel belittled and
away” from the entire matter that is usually
humiliated by the process and their own
the best result.
retreat.
If the demand is not dropped, then you can
Stock Investments with family,
put the request into standard promissory note
friends, and business associ-
or rental agreement format with the appropri-
ates
ate interest rates, repayment dates, collection
expense recovery clauses, collateral backup,
and the like. Under either alternative, you will As with family, friend, and business associate
be well ahead of the game. loans and rental agreements, businesses
involving these kinds of parties should be for-
Our final suggestion, if you get to the point of malized and stock certificates issued. It is
negotiating this kind of agreement, is to especially important that stock agreements
request them to lay out all of the terms them- include the Entirety of the Agreement clause,
referred to earlier, so that if the parties later
dispute the division of the stock and roles
within the company the resolution process can
be as straightforward as possible.
Memorializing the agreement compels all of
the parties to set forth their purpose, expected
compensation, and anticipated payments in
You Don’t Say the situation. The risks in
family/friend/business associate
loans and rentals, as well as stock
Never make the mistake investments, are due to the fact cir-
“ ” cumstances change (e.g., a sharehold-
of confusing justice and
er wants his son or daughter to be
the law.
employed by the company on the sole
basis that they are a stockholder).
Sometimes the party investing the initial or
Justice Oliver Wendell Holmes, Jr.
follow on money has financial setbacks and
1906
“needs” the money back. At other times, a
death, liquidation, or sale occurs and “other”
18
www.simplymedia.com Legal Survival Kit

ified conditions take place such as no clear
parties, such as heirs, trustees, or administra-
majority being in accord on a course of action.
tors are involved.
A second approach is to provide for an orderly
sale process of the enterprise with the funds to
In one such case involving a family loan to my
be received divided up among the sharehold-
first company, a written promissory note docu-
ers, if contention breaks out. Just the process
mented in corporate records resulted in the
of offering a company for sale often makes all
loan being promptly repaid by the new owners
of the parties more realistic if the offers
right on schedule without intervention by any
received are far less than the insiders believe
lawyer. This is just one example of how the
the company is “worth.” Buy sell agreements
written agreement can assist all parties with-
usually require this approach to establish fair
out being abusive of any of them.
market value, or what the company is “worth.”
At that point, you should be able to negotiate
One of the most contentious areas in family
a reasonably satisfactory buy/sell solution, as
businesses relates to whom or which “side”
long as you had it in place to start with.
will get plum corporate jobs and the accompa-
nying pay scales. It is our experience and rec-
Tip: This kind of stockholder agree-
ommendation that initial stock agreements
should expressly state that stock ownership is ment requires the use of the best attor-
separate from corporate management. ney you can afford to extract the facts,
Dividends should be paid in cash not corporate set up a suitable agreement, and provide
jobs or, as is referred to in government perks, a solid and agreeable exit position should the
in pork. stockholders descend into contention. Since
circumstances change rapidly these days, you
Finally, the stock agreements should provide are well advised to update your stockholder
for a straightforward exit position if contention agreement and buy sell agreement on a regular
breaks out and no one party has clear majority basis. You should try to do this at least once
control. A buy sell agreement works well to every five years, if not more frequently.
establish a clear exit path should certain spec-
19
www.simplymedia.com Legal Survival Kit

Business Agreements
L ending institutions are always cramming
these documents down borrowers’ throats.
Yet, they rarely help them speed up the collec-
tion process if something goes wrong. The
best deal for the institution is really a note, a
lien, and a simple agreement. More docu-
ments than that usually results in it appearing
that the lending institution had an unreason-
able amount of power and “forced” the agree-
ment. This does not mean a Court will “let
you out of it.” It merely means that lots of
documents do not help the stronger party.
If a lender or powerful party goes after you,
watch your lawyer use the length of the agree-
ment against them. Institutions never seem to
learn this lesson. So, when someone owes you
money, get a note, a lien (if possible), and a
Audio Nine: Business
simple agreement. Again: Business advice.
Agreements
Unrealistic expectations lead to many prob-
lems. This is why many large companies
Before drafting an Agreement, you should first refuse to deal with very small companies or
establish a term sheet. Term sheets are an individuals in many areas. They are rightfully
outline of a proposed agreement. These are fearful of the “intent of the parties” conse-
useful to prepare before entering a negotiation quences of their actions or other extreme posi-
so you know what you want, what you will tions that the weaker party might charge them
accept, and what is your walk away position. with and might just stick in Court.
The problem with contracts is they draw you
into liabilities. The risk is primarily to the Term sheets tend to eliminate many of these
stronger party; and yet, interestingly, it is the problems by allowing you to work out carefully
stronger party that usually demands the agree- your options and then having a reference point
ment. Counter-intuitive but true. when you get into the heat of negotiations.
20
www.simplymedia.com Legal Survival Kit

envelopes to give you the appearance of corpo-
The simpler the contract, the less likely a
rate respectability to go along with your formal
Court will ascribe “broad” relationships to it.
incorporation. You can click here to order your
On the other hand, long contracts suggest a
new stationery at an affordable price (the same
substantial relationship and open you up
company does checks and stationery). You
potentially to very intrusive and expensive
should set up a separate phone and fax line, as
investigations in many Court encounters.
well as email address (under AOL it can just
Tip: Every business agreement should be another screen name), to give you the aura
of being a going concern. In the corporate and
have a well-defined exit position. You
legal world, appearance counts. So do it!
should aggressively seek a “give up”
clause so you can get out (other than with
mortgages, notes, and other simple financial
instruments reflecting actual indebtedness).
This back door lets you at least cut your losses
should conflict arise.
Incorporation
Incorporation protects you personally from lit-
igation. As long as you observe the proper cor-
porate formalities, you can rarely be sued suc-
cessfully on a personal basis. If you are named
individually in such a suit, your lawyer can gen-
erally get you removed in a quite straightfor-
ward way. As with all layers of protection, no
single approach is perfect, but they all help, as
this one does.
Tip: The best way to incorporate is
through the Company Corporation that
does 1 out every 7 incorporations in the
US. They are specialists in the field so
offer the best service at the lowest price. Click
“Incorporate Your Business” on the main
screen to get the forms to make this happen.
Once you do this, you must call to get your
Federal ID number by filling out that form.
You can get the latest form off the IRS site at
irs.gov.
In addition, you should then set up a Business
Checking account. You can order the checks
by filling out the attached forms. You should
also order business cards, stationery, and
21
www.simplymedia.com Legal Survival Kit

Personal Litigation
as possible after the rupture. At a minimum,
this approach serves to contain the problem so
things are less explosive and you don’t create
the family situation where no one is speaking
to one another.
One great litigation lawyer pointed out to me
though, “I never have a suit that isn’t person-
al.” So beware of contributing to the problem
yourself.
Try to remove the personalities from the set-
tlement or litigation process as soon as possi-
ble. A little humility here can go a long way.
You can say such things as, “I am too personal-
ly involved in this as you may be too. Why
don’t we get a different person on each side to
deal with this.”
Audio Ten: Personal
Litigation
Warning: We have observed that
lawyers are beginning to take their
cases more personally too. At a mini-
mum, do not let your lawyer do this. If the
Personal litigation can be particularly nasty
other lawyer does this, actual litigation will
because it involves things and people so close
tend to uncover it and the Court may well see
to you. Boundary lines, wills, and divorces are
the bias that led the matter not to settle.
infamous for their ugliness. You rarely hear
about a nasty trademark or promissory note
Boundary Line; Neighbor
dispute. However, recently, more people have
Disputes
been taking these “personally” too. These
only get “nasty”, in our experience, when the
Business advice suggests selling and moving.
parties get personal.
No one wins these. They can be very bitter,
debilitating, and linger for decades. Legal
Tip: Try to keep conflicts as impersonal
advice says you may win. Personal advice says
as possible so you can heal the rift as soon
22
Legal Survival Kit
www.simplymedia.com

what they are thinking about, and indirectly
You Don’t Say about how you are doing with them. You may
be surprised by what you hear. Try to correct
The law cannot make a
”
“ what you can—which will lighten your load if a
man love me, but it can legal problem arises later.
keep him from lynching
Wills
me, and I think that’s
pretty important.
Martin Luther King, 1962
Audio Eleven: Wills
that at a minimum, try to get out of the “way,”
and find a way to soften the situation.
Part of the solution is to care less about what
the other side thinks, about who is tougher- Even lawyers avoid making wills for them-
stronger-righter, and move on to other issues in selves. Superstition is the major problem for
your life. As one old time lawyer told me, most of us. We all need to get over it. Make
“The worst legal problems are boundary lines the will. It may save people close to you tons
and wills.” At least with wills, you have finali- of trouble later.
ty in that some conclusion will result and, to a
large extent, you “know” your family. With Every family has stories about the great pro-
neighbor problems, things can rapidly escalate bate fight that centered on the piano stool,
out of control due to differing value systems summer cottage, or other item loaded with
and a lack of family bonds to cover over some personal memories and feelings.
of the bad feelings and disputes.
Tip: In this age of divorce and remar-
Having said this, there are many things you can riage, give your spouse half (usually
do to limit your exposure and upset. First, be legally required), set up trusts for your
polite and conciliatory without being a door- children for up to the other half (if the
mat. If a neighbor asks for something above surviving spouse remarries your children
the normal or outside of the context of your become “step-children” and Cinderella told us
relationship, suggest that they reciprocate in all about how that works out) with the execu-
some way so you can keep the relationship bal- tor being a banker or third party. This is not
anced. Tell them that you “are sure they want about “trust.” This is business advice about
to keep balance in the relationship as well.” human nature.
Secondly, keep your children, pets, friends, Also, do not put too much pressure on the
and cars off their property. This is an obvious process of drawing up a will by trying to antic-
point but many people just slough it off saying, ipate all of the events for the rest of your life.
“They don’t mind.” They may well be boiling In this fast changing world, drawing up a will
inside and when the pot boils over you will not every three to five years makes perfectly good
be happy. Third, engage and talk to them sense. Most of the changes will be minor
occasionally to calibrate what they are up to, adjustments. A good way to remember to do
23
www.simplymedia.com Legal Survival Kit

Divorce
this is to do it every time you get a new license
or on every 5th reunion of a high school or col-
lege class. A more modest approach towards
the scope of the will, just the next five years,
will give you more courage to get it done and
Audio Twelve: Divorce
then revise it periodically.
Use a form such as ours to draft your intent;
give it to a lawyer to memorialize. It is impor-
tant. Do it now, if you have not done it already.
Bookshelves would collapse if all the books
Tip: Provide for an auction of all ques- published on divorce in just one year were
tionable value items. This is especially stacked on them. Without taking sides, our
true for sentimental items. Everyone may business advice is to take note of the following:
“want” the piano stool Mom sat on. But no
Winners in Divorce
one may be willing to pay $10 for it out of his
or her proceeds from the auction. The mech-
anism is to provide a final percentage division The only definite winners are some female
for all of these objects. Then each party can members of the upper middle class and upper
use their “percentage currency” to acquire class. They can make out well. Everyone else
what they want or bid above the limits with loses, especially lower and middle class
their own cash. This process usually works to women. Most divorces squabble about the
turn down the heat and get the Estate liquida- kids. But, the kids become like Korea, and get
tion process moving. It worked splendidly in battered and scarred, and 50 years later the
my family to ward off battles over the silver- Koreas are still not reunited.
ware, furniture, and similar items.
It only takes one person to start a fight, as
Real Estate Trusts Ogden Nash once said. So, above all, remem-
ber that you are entering treacherous territory
Real Estate trusts for your private residence or here and must therefore be doubly cautious,
residences are a good idea in this litigious age. vigilant, and careful.
It means that litigants in other matters cannot
Tips to the Losers (Except For
“attach” a lien or prejudgment attachment
Husbands Of The Winners)
against your property. It also tends to discour-
age plaintiff lawyers because it prevents the
quick kill of an attachment against your prop- Go easy on each other. Otherwise the lawyers
erty that they might be able to use to make will get what little there is. Both sides may
you settle up on another matter entirely. As benefit from Court enforced child support.
with estates or wills, fill out the forms but be That way, the benefits both increase and
sure to use a lawyer. These areas require in- decrease according to the actual received
depth thought and experience to determine income of the parties. Split the property and
the best ways to proceed. Again, an ounce of move on, if you can. This is easier said than
prevention here can save you having to pay a done because of all the emotion attached to
pound in cure later. the children, the property, and the old rela-
tionship itself.
24
www.simplymedia.com Legal Survival Kit

children under 18, there is rarely a problem.
Advice to the Former Courts are tough on making people go back to
Husbands of Winners work and “try” to earn a living (i.e. the poten-
tial winner). So the potential winners usually
only score big-time when minor children are
Understand you are going to lose. Do not
involved. If you have children near 18, consid-
make the mistake that many men do in this
er long and hard whether you don’t want to
situation and be tempted to hold on to the soft
wait until they are 18 before you start a divorce
assets and hard debts while giving up the hard
proceeding if you are one of these husbands.
assets and soft debts. You are better off selling
and splitting most assets, especially the mari-
Tips For the Winners
tal home. Then nothing lingers as long. If
more husbands of winners forced the sale of
the marital home, they would force the poten- This is one area lawyers perform magnificent-
tial winner out of the old emotional zone and ly. You need no advice from us other than to
get them moving towards a new life. decide how much pain you wish to inflict. The
power is yours.
Make child support dependent on your annu-
ally earned actual income. Otherwise, if you Joan Lunden had this happen to her. It
lose your job, off to jail you may go—and this changed her mind about this stuff after she
isn’t Monopoly, there is no $50 card here to was attacked—and got whacked. Before
get you out of jail. Some winners love to hear launching into such an attack yourself, you
the jail door slam on their ex-husbands despite should read up on the Joan Lunden story. It
the consequences to the children and their might just get you to holster your weapons.
relationship with their children.
Try to limit child support to the shortest peri-
od possible. Try to get physical custody for
some period of time or you may never get it at
all. Consider this like a 5 on 3 penalty in hock-
ey. They will score many points if given
enough time. The only question is, how many
times? If you don’t know hockey, ask about the
You Don’t Say
5 on 3 penalty situation. Ouch.
This is also good business advice for any case
The law is only one of
“ ”
where you are the potential big time loser.
several imperfect ways
Always work to minimize the amount of the
damage award and the time period you must of defending what is
keep paying. Try to keep your cool and better in life against
remember that owing the money may be out- what is worse.
rageous, but every little discount helps.
Vaclav Havel,
Child (Mother) support is where the real Prime Minister and Playwright
potential problem is, not the division of com-
munity property. So if there are no minor
25
www.simplymedia.com Legal Survival Kit

Three Steps To Take
To protect yourself
activities do you or your spouse participate in;
your minor children; or items relating to your
property.
Examples include being a human helper to
others: all kinds of risk exposure for you here.
This is not just as a doctor or lawyer, but as a
business advisor, coach, teacher, town board
member, volunteer driver, and various other
related activities. Think hard and make an
exhaustive list of all such activities in which
you participate. Do it. It is important.
Property issues relate to hazards, attractive
nuisances, animals, trees, and any other risks
to others, including, believe it or not, a slip and
fall accident to a door to door salesperson).
Be sure to set up the basic protections such as
Audio Thirteen: Review Your
a will, real estate trust (s) for your property
Exposure
(ies), business agreements, and other agree-
ments related to your situation (e.g., health
care stipulations). Be sure to get the home
safe and umbrella liability policy referred to in
You can do a lot to protect yourself. The fact
the Background section.
you are reading this is a major step forward.
Let’s go over some things to help you.
Insurance
Review Your Areas Of
The best rule for insurance is to insure for
Exposure
what you cannot afford to lose. Pay directly
yourself what you can afford to lose—it is
Exposure relates to what you or your spouse
much cheaper in the long run. So, with car
do. What your minor children do. Or what
insurance, you are better off with a high colli-
happens on, to, or with your property. Make a
sion deductible but spending the savings on
list relating to these three categories: what
26
www.simplymedia.com Legal Survival Kit

effort will produce most of the results. After
that you will have to work harder to bring the
remainder in. But, at least you know what you
You Don’t Say have to work at, and that is usually half the
battle.
The defendant wants to
”
“ Make a date with yourself to do this once a
hide the truth because he year. Choose an anniversary date such as New
Year ’s, your birthday, or some other such day.
is generally guilty.
Put the date on your calendar and stick to it. If
you do this now, in a year or so you will have
Alan Dershowitz, Trial Lawyer, 1982
eliminated, or at least limited, most of your lia-
bility.
getting large umbrella liability policies to cover
extraordinary damages. In homeowners insur-
ance, the same rules apply. In business and
your personal life, be cautious about all of your
business activities but be sure to have a large
product or service and employee liability poli-
cy or policies.
Get A Legal Check Up
Get a legal check up with a good lawyer. Give
them a list of the areas of exposure you worked
on earlier. Figure out which areas are most
liable to be attacked. Perhaps you should
reconsider serving on town boards, being a
coach, taking your children’s friends on trips,
and so forth. At a minimum, you should review
your activities, and those of your family, to
determine which ones, if any, should be modi-
fied or eliminated.
Be sure to memorialize your outstanding “oral”
agreements that could use certification. You
may not be able to get the other party to sign
up. This is a warning sign itself. Think of
yourself as the proverbial librarian calling in all
of your overdue books. The first round of
27
www.simplymedia.com Legal Survival Kit

You Can Walk Away
Your Inalienable Right To Retreat
he is a pussycat.
Think older. It is OK to give up. A few exam-
ples that have worked for me:
You are a volunteer coach on a team; you have
two or three children with difficult, interfer-
ing, and critical parents. You can give up and
say, “Look, you have your points; I am no pro at
this. Good luck.” If you select this option, be
sure to do it when provoked, in front of wit-
nesses, and give them the “ball.” Don’t back
down once you start. Don’t be talked back or
they may wait their turn to whack you for it
One reason many people become more suc- harder the next time.
cessful in business as they get older is they
learn to give up, walk away, retreat, and not Result: You have one less problem in your life.
fight on most issues. If it is too hard to bust They may just think twice before doing it
through the wall, they learn to walk around or again, especially if you do this in your home
away from it. If people are too difficult, they community.
don’t work with them. What they do emotion-
ally is distance themselves from trouble and You are a boss and have a troublesome employ-
troublesome situations. I have found this hap- ee reporting to you. You can suggest giving up
pening to me, as I get older. It is one of the and say to your boss, “Look I can’t manage
enormous advantages of age. them; I don’t want to make it worse. Why
don’t we move Sally-Billy before we have a real
A question: If Stalin, Lenin, Hitler, Saddam, problem.” In business, bosses are terrified of
and various terrorists had been in their 70’s, do being sued by employees. So, your humility
you think they would have done it to start should impress your boss and include him or
with? Chinese leaders have been older. So far her in the decision to take conservative action.
they haven’t attacked anyone except for Tibet Now, to whack the nail a little harder, you can
in their own borders. Castro became pretty say, “Look boss, let’s be smart. None of us is
tame once he reached 65. Now that he is 75 perfect. What if we really do blow it some day.
28
www.simplymedia.com Legal Survival Kit

All of this is easier said than done. However, it
Do we want them around to crow about it or
is good, solid business advice as to how to
worse yet rat us out?”
reduce future problems that could well turn
into litigation. Remember: you have the
Result: You are on record about the problem.
inalienable right to retreat honorably and with
If anything comes up later, you put everyone
all due haste.
on notice. You have taken the heat off your-
self no matter what the outcome.
We strongly recommend you incorporate uni-
lateral “give up” or exit clauses in all of your
Interesting Point: None of these actions
contracts, with or without cause. Consider
resolves the problem. That is a much more
putting in clauses, which we do, to give you
challenging enterprise and not the subject of
the right to “quit” or “stop” without giving
this CD. Our Conflict Resolution and Negotiations
reasons. In retail they have a marvelous phrase
Handbook discs address that process. In this
for it, “Your first loss is your best loss.”
case, you have merely mitigated the damages.
As you get older, most people learn it is far
In summary, when a situation is not working
more productive to mitigate damages than try
out well, one of your best options is an orderly
to eliminate them. As Mark Twain said, “You
retreat so you can focus your energies on a pro-
can’t throw a bad habit out the window. You
ductive situation. It is all too easy to get
must coax it down the stairs.”
caught up in the emotion of conflict. Better to
move on to opportunity—unless, of course,
You have a contract with a difficult person-
you are a lawyer and then you get rewarded by
company-type. “I am sorry X, we just aren’t up
more billable hours. However, you, as a civilian
to your standards. We need to move on.”
and nonlawyer, don’t want to be caught footing
Customers for Life by Carl Sewell describes “fir-
the bill for those billable hours.
ing customers.” Organizations cannot with-
stand harsh treatment by the outside world.
You must first protect people within the com-
pany or organization if you want them to treat
outsiders well. If people make your company’s
environment miserable, you have to get them
out or the whole place can become surly.
Again, you are not resolving the issue; you are
mitigating the damages.
As Herb Kelleher of Southwest Airlines says,
“Employees first; customers second,” in order
to keep the employees morale up to deal with
the customers. To underscore this, Southwest
permits its employees to fire customers by
telling them, “We don’t do what you want; x
airlines does; please use them and not us next
time so you won’t be disappointed.” This is a
perfect “give up” strategy without offending
the other party but getting yourself and/or your
organization off the hook.
29
www.simplymedia.com Legal Survival Kit

Summary
Don’t Just Blame The Lawyers!
Individually we must learn to deal with the
consequences of society’s trying to “right all
wrongs” and get “compensation” broadly.
Some of the results are positive; many are not.
Keep in mind that it is very expensive in time,
money, and emotional resources “to prove”
anything through the court system. The best
way to turn away a lawsuit is to try to settle it
out promptly, recognizing the increasing ten-
dency for people and organizations to sue each
other. If you cannot settle an actual or poten-
tial lawsuit, be alert to your options to improve
your position through “good faith dealings,”
being vigilant about identifying their weak-
nesses, and get good legal help early. As the
Audio Fourteen: Don’t Just
old saying goes, “An ounce of prevention is
Blame the
worth a pound of cure.” That is exactly why
Lawyers
we wrote this CD-ROM and we hope you have
benefited from it.
Lawyers may have started the trend to
increased litigation. We as a society are per-
petuating it. As we gradually take less person-
al responsibility for our actions, and discipline
being admired less and feared more, more and
more people are seeking to blame others for
their problems—and seeking monetary com-
pensation for them through the legal system.
The courts have always been an accurate
reflection of our country’s beliefs. They are no
exception in this instance.
30
www.simplymedia.com Legal Survival Kit

Appendix I
Clickable List of Audio Clips
Audio One: Introduction
Audio Two: The Purpose of Written Agreement
Audio Three: What You Owe Them
Audio Four: Common Approaches That Can Help
Audio Five: So You Got A Legal Letter
Audio Six: PMI Thinking
Audio Seven: The Court’s Approach and Interpretation
Audio Eight: Agreements Between Friends
Audio Nine: Business Agreements
Audio Ten: Personal Litigation
Audio Eleven: Wills
Audio Twelve: Divorce
Audio Thirteen: Review Your Exposure
Audio Fourteen: Don’t Just Blame The Lawyers
31
www.simplymedia.com Legal Survival Kit