By Mike DuBose with Blake DuBose
“You have been served! Have a great day!” I stood in shock as the court summons was pressed into my hand on that day years ago. The ensuing lawsuit would span six months before we eventually won, causing major distractions to my business and personal lives. For entrepreneurs like me, lawsuits often seem to come out of nowhere, and they can drag on for months or years, even if you are innocent! Legal troubles can also tarnish personal and corporate reputations, wipe out family savings, and cause negative health effects from the prolonged stress they bring to the body. Unfortunately, no one is exempt: any for-profit company, government agency, homeowners’ association, house of worship, or non-profit can become entangled in a lawsuit if someone is injured (or perceived to be harmed).
In a National Federation of Independent Businesses article, M. Duffy reported, “In our litigious society, any business can get sued—by a customer, an employee or another company. The number of ways of getting sued is mind boggling—ranging from discrimination and injuries to intellectual property infringement and contract disputes. A lawsuit is expensive, disruptive and can sink your business in legal fees.”
Recently, one of my vice presidents told me that he goes to work every day “wondering what will fall out of the sky!” In one such unexpected incident, we received a letter alleging that our businesses had violated some outdated patent by using fax machines and scanners. The letter demanded thousands of dollars to settle out of court. Fortunately, through our research, we discovered that it was just a (technically legal!) “patent troll” scam to trick scared companies out of money. Although there was just a small risk of an actual lawsuit (and no guarantee that the patent trolls would win if it did go to court), many small businesses comply with such demands. They’re so afraid of litigation that they’d rather pay a bogus fee than risk going to court!
The process of a lawsuit
Lawsuits cost a huge amount of time, money, and effort, so it’s no wonder that many businesses try to avoid them at all costs. Fortunately, in many cases, the issue can be settled through mediation or arbitration, all without stepping into the courtroom. In a Smart Business Magazine article, Monte Mann, legal partner at Novack and Macey, LLP, said, “As a business litigator who makes a living in the courtroom, it may be surprising to learn that I also spend a great deal of time in the boardroom—working with clients on ways to avoid litigation well before it arises.” Settling the issue out of court can help prevent a lot of stress, wasted money, and bad PR for all parties involved.
In some situations, however, a full-fledged lawsuit becomes unavoidable. Therefore, it’s important for all organizations to gain a general understanding of how the process of litigation works. In general, lawsuits go through the following steps, according to several defense and litigation attorneys we interviewed:
Initial meeting: The plaintiff (person who believes he or she has been injured) meets with a lawyer to discuss the facts of the situation. The attorney will assess the pros and cons of taking the case and decide whether or not to represent the plaintiff. If so, they will work together to develop a strategy. Based on the merits of the case, the lawyer may contact the party that injured the individual or organization to try to settle out of court, or legal staff may pursue the case without warning the opposing party.
Filing the lawsuit: The litigation lawyer files a petition with the court outlining the plaintiff’s grievances. The opposing party generally has 30 days to respond. At this point, the parties may agree to go into arbitration or settle out of court, or the opposing party may respond in writing, which triggers the litigation lawyer to prove his or her case.
Discovery: Each party is entitled to investigate the other side’s position through a process known as discovery, which is normally the most important and time-consuming part of the lawsuit. This phase can be executed by submitting written questions or conducting formal interviews (depositions) with people on both sides of the issue, including witnesses, experts, lawyers, and key individuals. These depositions are normally videotaped and can be used in court. This phase of the lawsuit will likely determine the settlement and trial value of the case.
Mediation and arbitration: Both parties may agree to meet and attempt to reach a mutually satisfactory settlement out of court. (It can also be court-ordered by the presiding judge or required by a contract they signed containing a specific mediation or arbitration clause.) Sometimes, the parties enlist the help of a third-party certified independent arbitrator either assigned by the court or agreed upon by both sides. This person does not know the individuals involved in the case and has been trained to listen to both parties, weigh the facts, and offer an opinion. Both parties may then sign an agreement to accept the outcome, choose to follow the path laid out by the arbitrator with the option to go to court later, or reject the solution and continue on to court.
Trial setting: If mediation or arbitration does not work, then the court will set a date for the trial. The court may schedule up to 10 or 15 cases for the future at one time, and they will begin with the oldest case first and work through the group.
Trial: The trial may take place one of two ways: in the presence of only a judge and both sides with their legal staffs, with the judge rendering the verdict; or 12 jurors are selected and agreed upon by the judge and attorneys to hear the case and render a verdict. During the trial, both sides present their evidence to the court and/or the jury. In a jury trial, after the evidence and closing arguments are made, the judge instructs the jury on its responsibilities and gives them specific questions and issues to consider. The jury adjourns and reaches a verdict, or if there is no jury, the judge renders his or her verdict.
Post-verdict: Once the trial is over, the court issues its judgment, which may require a fine, monetary award, or for one party to take a certain action. Both sides have a set amount of time afterwards to ask the court to grant a new trial or to appeal the verdict. If there is no appeal and the plaintiff has won the case, the defense must pay the money awarded. If there is an appeal, the process restarts with its own timetable and phases.
Common lawsuit threats
The potential for lawsuits is nearly endless, but businesses most often face lawsuits related to their interactions with employees, customers, or the general public. Online legal resource Justia.com tracks lawsuits filed across the US. According to its records, there were nearly 5,000 contract disputes; 5,600 personal property cases; 5,300 civil rights suits; and 3,400 labor lawsuits filed in South Carolina in 2014. Another emerging segment is intellectual rights lawsuits, of which South Carolina courts saw 647 cases last year.
Lawsuits can result from negligence, freak accidents, or a combination of both. One South Carolina restaurant experienced this when a defective oven undercooked meat. It was not post-checked by kitchen staff with a thermometer, and one customer died from eating it and many others got very sick. Millions were awarded to the plaintiffs, wiping out both the business and the assets of the family that owned it! Over thirty years in business, I have seen many more lawsuits and EEOC complaints where business owners and leaders—some who were guilty; others who were innocent; and many who folded far too early—were sacked for small fortunes.
Three of the most common issues that precede business lawsuits are:
Personal injury and exposure: Company owners, corporate officers, members of a board of directors (for-profit and not-for-profit), or those who own high-risk items such as pools, trampolines, boats, and cars often do not realize the potential risks associated with just living their lives! Even if you’re just a normal person, hiring contractors to perform work on your property could expose you to a lawsuit if someone is injured, or you might accidentally kill someone in a car wreck, resulting in a serious liability case. Basic insurance will not usually cover all the lawsuit fines and damages, which means your personal assets could be taken by plaintiffs.
Weak contracts and proposals: Some businesses lack well-defined, understandable, and lawyer-reviewed contracts, allowing misunderstandings and ambiguity to creep in. In the 1980s, I used to shake hands and make verbal agreements, but over time, the person I shook hands with would disappear and I was suddenly faced with a new decision-maker who had different contractual expectations and requirements. Since then, I have learned the importance of having a clear, thorough, and mutually accepted document for every agreement! Contracts should be updated frequently as new threats and issues arise, with language to protect you and your company even in unlikely situations. The standard contract for one of my companies started as a three-page document, and it is now at nine! We continue to edit and expand it as new liabilities arise.
Employee complaints: Employees are another frequent source of lawsuits. According to the United States Equal Employment Opportunity Commission (EEOC), there were 88,778 formal employee complaints filed against employers and managers in 2014 (some of which represented groups of people). EEOC charges may cite several reasons, but the major areas addressed were: retaliation, or punishing an employee for things like revealing company wrongdoings (42%); race (35%); sex (29%); disability (29%); age (23%); national origin (11%); religion (4%); color (3%); and the Equal Pay Act (1%).
JoAnn Moss ([email protected]) is a certified, experienced human resource specialist who our companies utilize as a consultant. She reported that some of the most legally dangerous employee-related mistakes she has witnessed include:
Are there weak spots in your liability coverage?
All individuals and organizations (non-profits, government agencies, and for-profit businesses alike) are subject to threats and liabilities; however, some have higher risks than others. For example, a company that owns many vehicles and has employees who drive them in the course of their jobs is at a higher risk of something going wrong and being sued than a private non-profit with few staff members and no company cars.
Using historical data on claims filed over many years, the insurance industry has studied liability risks so that they can properly decide whether to insure a person or company and, if so, how much to charge. The higher the risk, the more it will cost. The price also depends on a number of other factors, including your personal or company credit scores; the location of your business; the type of activities it is involved in; the number of employees or office locations you have; and the company’s financial strength, risks, past insurance claims, and history.
Whatever its costs, though, comprehensive insurance is essential to a business’s survival. No leader, no matter how visionary, could possibly predict all of the disasters (manmade and otherwise) that can befall a business. It’s vital that, when a catastrophe occurs, you have adequate insurance coverage to keep your business going. This was a hard lesson learned by many during Hurricane Katrina who lacked flood or general insurance coverage: more than 2,000 uninsured businesses failed as a result of the hurricane’s devastating effects. In addition, nearly 2 million insurance claims were filed across six states, proving that many others who did have coverage were able to fall back into the safety net provided by their insurance. However, some learned the hard way that they were only partially covered for their losses!
Recently, to ensure that our business and personal assets will be protected in the event of a lawsuit, disaster, threat, or accident, we worked with our excellent agent, Scott Moseley of Irmo Insurance Agency (www.irmoinsuranceagency.com), to audit our business, personal, automobile, and employee insurance coverage. One interesting finding was that many comprehensive business policies cover several unnecessary items (like radio and television antennas, outdoor signs, outdoor property, trailers, etc.), but lack other important features. Thus, we needed to buy additional liability protection in some areas. Some policies also do not cover individual corporate officers and employees, just the company in general; again, we had to purchase additional coverage to thoroughly shield our assets.
When you request insurance coverage, the insuring company (not your agent) will assess risks and liability and present you with different coverage options and costs. Here are some types of insurance you will need to consider for your business:
General Commercial Umbrella Insurance: This is a basic policy that covers property damage, arson, theft, fire, disaster, loss or damage of valuable records and business property. It’s called an umbrella policy because it covers a wide range of threats, but often in smaller amounts, especially in the liability area. However, you can add on liability and other special coverage for additional costs. If your business is small, this umbrella coverage may cost less than $1,000 annually.
Liability Insurance: This covers several categories, including your homeowners and automotive insurance policies. For $200-$300 per year, you can add on $1-$3 million in additional liability coverage for you as an individual and your family. You will also need to increase your automotive insurance to higher coverage levels of $500,000 for each occurrence and for incidents involving uninsured motorists. What you do as an individual and family can also harm your company as well, especially if you lack proper legal structure as a limited liability company (LLC) or corporation. If you are a sole proprietor, your individual assets are exposed!
You will also need to increase your company’s liability insurance to at least $1 million (preferably more, depending upon your threats, risks, and liabilities). If you hold special events, ensure that you secure at least $1 million in liability insurance. For example, our church, St. Andrews Presbyterian in Irmo, SC, purchased special coverage for its annual car and art show with children’s activities. Since our businesses were co-sponsors, the church added our companies to the policy as “additional insured” at no cost since we could be drawn into a lawsuit if an accident occurred and legal action was taken against the church.
Earthquake and Flood Insurance: These risks are typically not covered by general commercial umbrella insurance. In Columbia, SC, we recently experienced an earthquake due to our location near a major fault line in the Charleston area. Our 40,000-square-foot Columbia Conference Center was covered since we took out an additional earthquake policy to cover this threat, along with flood insurance.
Workers’ Compensation Insurance: This is a state-mandated insurance program that covers lost wages and medical treatment resulting from an employee’s work-related injury or illness. Workers’ comp also covers services needed to help an employee recover and return to work. However, some business owners fail to take out this policy, which can result in a lawsuit if an accident happens.
Director’s and Officer’s Insurance: If you are a director, corporate officer, major decision maker, or a member of a limited liability company (LLC), you could be dragged into the fray if legal action takes place against your organization. Thus, taking out an additional policy to cover leaders is a wise move. If you sit on a board of directors, you also want to ensure that the organization carries this type of insurance. Director’s and officer’s insurance is more expensive than general umbrella or broad liability insurance, but costs vary (from less than $1,000 yearly for most non-profits to thousands of dollars per year for businesses).
While shopping for a variety of insurance coverage recently, we had to complete several lengthy applications. Different insurance carriers asked many of the same questions to assess risk and deliver a cost estimate based on how much coverage we desired. The following are some of the common questions and requests you can expect if you and your company are in a similar situation:
In addition to helping insurers determine whether to offer coverage, these questions are a valuable resource to business owners as well. They’re a great list of potential threats that businesses face! Address these issues, and you can help protect your business and assets, as well as make yourself qualified for great insurance coverage. Over the years at our companies, we have developed many policies and procedures to address these issues, updating our employee handbook regularly with the advice of human resource experts.
Lawsuit protection strategies
Although there is no foolproof solution to completely prevent legal attacks, there are many measures you can enact in your organization to make them less likely. Consider implementing the following, if you have not already, to protect yourself and lessen damages in case you are sued:
Pick the appropriate legal structure for your company: Operating as a sole proprietor has a few advantages (including less paperwork and very liberal retirement programs), but it exposes your personal assets to lawsuits and is more likely to trigger a tax audit. The limited liability company (LLC) format is inexpensive, acts like a corporation, can be implemented quickly without legal assistance, and requires minimal paperwork (in South Carolina, just three pages). If your business offers different services and products, consider establishing multiple businesses, like one company owner we know who placed his cement mixing operations in an LLC and the delivery trucks and staffs in another. (Consider placing valuable assets under a low-liability company and fewer assets in high-risk entities—if one is attacked, the others will be protected.) Another idea: pool all of your employees into one LLC with no assets to reduce liabilities and decrease fringe benefit costs; then, lease staff to your individual businesses. Whichever you choose, make sure that all entities appear legally separate from you (get different checking accounts, for example).
Develop a team of liability experts: Before you need them, establish relationships with skilled defense and litigation attorneys, certified public accountants, insurance agents, and human resource experts. All should have experience in developing strategies to protect staff, the company, corporate officers, and owners from liability issues. Then, if any threats surface, call the appropriate professional immediately for advice!
Consult a human resource expert for a full understanding of important laws: Human resource law can be extremely complex, so secure expert advice to guide you through problems and explain regulations. JoAnn Moss, our excellent HR consultant, recommends using professionals with extensive field experience who understand your company; have detailed, up-to-date knowledge of federal and state employment laws; maintain strong ethics; and have servant-leader attitudes. Proven HR professionals are worth their weight in gold, as they can often prevent lawsuits!
Establish structured, well-documented hiring processes: When you publicize employment opportunities at your company, keep the ads clear, unbiased, and based on the job description. Allow candidates to fill out an official employment application that captures key applicant information and authorizes your company to legally conduct background checks, drug tests, personality assessments, physician-implemented medical reviews (to confirm that candidates meet the job’s physical requirements), and financial background searches (if the position handles money). Our Columbia-based litigation attorneys John Koon and Stephen Cook (www.koonandcook.com) reported, “Employee background checks, including driver and criminal records, are very important in lawsuit prevention. This is especially true if employees are expected to drive company cars—drivers with major driving offenses and/or alcohol and other drug convictions should not be allowed to operate company vehicles. If these drivers were to be involved in accidents, the business would be subject to not only civil lawsuits under an agency theory, but additional causes of action for negligent entrustment. The business could be sued for negligent entrustment even if the employee wasn’t driving the company car in the course and scope of his or her employment. ”
Conduct fair, thorough interviews: Ensure that any staff members who will conduct interviews are well-trained on questions they can and cannot ask—some, like what country an employee is from or whether they have (or plan to have) children, are illegal! (For some ideas, see our compilation of 80 great interview questions from leaders who have been featured in the New York Times at www.mikedubose.com/interviewquestions.) Don’t rush the interviewing process. Have multiple staff members speak with candidates at least three times on different days. During the discussions, allow the applicants to talk at least two-thirds of the time, and listen carefully for signs that they mesh with the workplace culture (one of the most important factors for a good employee fit).
Draw up clear, non-threatening customer, vendor, contractor, and employee contracts: The goal is to limit liabilities wherever possible, but also to be fair and understandable to all parties involved. Whomever the contract is with, make sure that it clearly spells out the responsibilities of all parties involved; take special care to include sections addressing issues you have dealt with in similar relationships before. Have lawyers review all contracts, but try to keep “legalese” minimal.
Maintain a comprehensive, updated employee handbook: Create an understandable guide to your company’s policies and procedures and have it thoroughly reviewed by leaders, employees, and human resource experts for fairness and compliance with employment laws. (Keep in mind that, if it is not thoroughly reviewed and written to be completely legal, your handbook can turn into a liability!) Follow the handbook consistently to avoid charges of unfairness and bias. Update it regularly as issues arise to prevent those problems recurring in the future. As attorneys Koon and Cook noted, “The employee handbook should outline how to be aware of and deal with dangers in the workplace to reduce the chances of a lawsuit.”
Clearly define all positions: Giving employees detailed job descriptions will not only help them understand exactly what is respected of them, but also provides the company with documentation should they fail to meet their responsibilities. In addition, classify all employees correctly; for example, workers who are paid by the hour should not be labeled “exempt.” Don’t allow off-the-clock work or comp time, even if non-exempt employees volunteer for it. When warranted, pay workers overtime.
Train your managers on common legal risks and dangers: Managers are on the “front lines” and often have the opportunity to notice problems brewing before senior leadership can. Provide your managers with extensive training on identifying and addressing threats, focusing specifically on implementing progressive, well-documented disciplinary procedures. They should also check for physical dangers around the premises, such as loose handrails or tripping hazards, and warn customers and staff about them, according to Koon and Cook, who stated, “Hazards around your business can result in costly lawsuits when a customer falls or employees are involved in a workers compensation claim. It is the responsibility of company leaders to anticipate problems and dangers in the environment.”
Document everything: In Duffy’s article, attorney Santiago Cueto notes that “the best way to avoid any misunderstanding is to put everything in writing. Nothing is better at preventing lawsuits than a well-drafted contract, memorandum of understanding, memo to file or any other writing that records an agreement or important event, he says.” Write follow-up e-mails to employees and clients summarizing important verbal discussions so you have electronic records of the conversation. Document employee-related issues thoroughly, especially in the early stages, including dates and the matters discussed with the employee. Should any allegations come up, these records will provide management, defense lawyers, and/or human resource experts with helpful information and proof that the proper procedures were followed.
When terminating staff, be kind: We’re all human beings, and no one likes being fired or laid off. If you make an effort to act in a caring way and preserve their dignity, former staff members are less likely to become angry and attack your company. Plus, if you follow the Golden Rule, it’s the right thing to do! We recommend giving terminated or laid off employees some severance and asking them to sign releases of liability in return. If you are contacted later by a prospective employer, be careful about sharing information about problematic former staff other than salary and employment dates. Otherwise, you may get sued!
Communicate respectfully and clearly: Not all disputes must end in a courtroom! Cueto advised, “The best preventative measure to avoid a lawsuit is to simply pick up the telephone to clear up any misunderstanding.” Sometimes, threats may be based on misinformation or hurt feelings. Speaking to the potential litigant respectfully and finding “win-win” solutions might make court unnecessary and may even save your business relationship with them.
Keep records of loans: If you lend money to your business, develop written loan agreements with a lawyer’s assistance. Preferably, place liens against company assets so you will be paid before any creditors if things go south.
Each year, review your insurance coverage with your agent: Depending on your roles in the business and your community, you may need several types of insurance to maximize your liability coverage. Our excellent insurance agent, Scott Moseley, advised, “Carefully examine your home, business, and auto policies to ensure adequate insurance coverage, since personal and business assets can be simultaneously attacked.”
Hope for the best, but prepare for the worst: Be optimistic when looking into the future, but know that hazards are going to pop up along the way! Plan for things to go wrong just in case, and you’ll be in an excellent position when things go right.
Face the facts: Be fair. After putting your pride aside and considering your team of experts’ advice, if you believe that you or your staff members have wronged someone, admit it (with professional guidance to make sure that you don’t increase your liability) and settle accordingly. However, if you believe you’re innocent, the odds are in your favor, and it’s worth your time and effort, you may want to defend your reputation in court. If you have a good lawyer who handles your case wisely, plaintiffs without a solid case will often back off!
The bottom line: Threats, risks, accidents, and lawsuits are a part of running an organization, and leaders need to be aware of these in order to prevent and reduce any losses when (not if) they occur. By adopting our philosophy of “hoping for the best and planning for the worst,” you will protect your business from dangers. Being grilled by a lawyer in a courtroom and possibly losing a fortune is not our idea fun...but you had better be prepared to go there!
About the Authors: Our corporate and personal purpose is to “create opportunities to improve lives” by sharing our knowledge, research, experiences, successes, and mistakes. You can e-mail us at [email protected].
Mike DuBose, a University of South Carolina graduate, is the author of The Art of Building a Great Business. He has been in business since 1981 and is the owner of Columbia Conference Center, Research Associates, The Evaluation Group, and DuBose Fitness Center. Visit his nonprofit website www.mikedubose.com for a free copy of his book and additional business, travel, health, and personal published articles.
Blake DuBose graduated from Newberry College’s Schools of Business and Psychology and is president of DuBose Web Group (www.duboseweb.com).
Katie Beck serves as Director of Communications for the DuBose family of companies. She graduated from the USC School of Journalism and Honors College.
© Copyright 2015 by Mike DuBose—All Rights Reserved. You have permission and we encourage you to forward the full article to friends or colleagues and/or distribute it as part of personal or professional use, providing that the authors are credited. However, no part of this article may be altered or published in any other manner without the written consent of the authors. If you would like written approval to post this information on an appropriate website or to publish this information, please contact Katie Beck at [email protected] and briefly explain how the article will be used; we will respond promptly. Thank you for honoring our hard work!