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.

www.simplymedia.com Legal Survival Kit

Background
How We Got to Where We Are
American lawyers used to belong to an elite
club that “did the right thing,” or so we
thought. There have always been bad lawyers,
ambulance chasers, and the like. Even
Shakespeare said, “First, kill all the lawyers.”
Of the major industrial countries, only the
United States permits:
(1) Contingency law suits. That is, the
plaintiffs do not have to bear any costs other
than a potential percentage award to the
lawyer.
(2) The loser does not have to pay the legal
costs of the winner.
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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-
gator there must be at least one legal defend-
er, usually another lawyer.
Your Role in the Legal World:
Winner or Loser
In the current legal environment, you will
either be the winner or loser in your legal
affairs. As with most of us, you will sometimes
win and other times lose. The objective of this
CD-ROM is to keep you out of litigation and
help improve the odds you will win if you
become engaged in what has become a wide-
spread American activity.
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Legal Survival Kit
You cannot opt out since anyone can sue you
for anything, and these days, they often do. At
work or at play, at home or on the road, you are
always vulnerable to legal attack. Our efforts
are devoted to provide you the best advice and
tools to avoid litigation and prevail if it should
occur.
Insurance: Umbrella Liability
Coverage to protect you from
the lawyers on the prowl
You should consider adding an umbrella liabili-
ty policy to your homeowner’s policy immedi-
ately to protect you from unforeseen lawsuits.
An annual additional liability policy of up to $1
million often costs no more than $100 per year.
This not only protects you from additional
losses should they occur, it also usually pro-
vides for the insurance company to cover and
manage all legal costs and activities—so you
can get on with your life in relative peace and
quiet. Do it!
This Guide With Step-by-Step
Advice Per Form
We have provided you with this Guide in addi-
tion to step-by-step advice for each legal form.
After each document, we have provided specif-
ic advice for that form or letter in a “review
list”. This way, that advice is specific to the
form and not over generalized here.
Notwithstanding that, the following is general-
ly useful when filling out the forms and letters.
1. Prepare and keep a separate document with
the key facts pertaining to each individual
and/or corporation and/or other entity you
enter into these documents. For individuals,
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-
www.simplymedia.com
dren’s information, and so on and so on.
2. Set up a word document file where you save
this information plus each form you create for
later reference. If you wish to also keep this
record elsewhere, do so too (duplication will
only help you). You should also keep a hard
copy file of signed documents and your key
fact documents.
3. If you do not have a fire proof safe, get one
and put these documents into them. The
office supply stores (e.g., Staples, Office Max,
and Office Depot, and their on line affiliates)
have them and will usually deliver at no
charge, so you don’t break your back carrying
your safe home. They cost about $150 each.
You can get them cemented into your base-
ment or into your floor for extra protection.
Do this too, if you can.
4. Review these forms and consider doing well
care for yourself legally in advance of any
prospective problems. This means doing
proactive things you may not need immediate-
ly (important but not urgent, a category we all
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-
ly, write out a schedule in which you will do
them—and then do them.
5. Encourage other members of your immedi-
ate and extended family to do the same kinds
of things. You will give them a great gift by
doing so.
Action items:
1. Get additional umbrella liability
insurance policy coverage.
2. Get a home safe.
Legal Survival Kit
Introduction
“You Have To Know The Law Well
To Make It Work For You.”
Clarence Darrow, the great trial lawyer, said
this long ago. Justice Oliver Wendell Holmes
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,
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-
trative audios, is to provide you with a broad
background of the legal system and suggest
the appropriate tools to use when dealing with
the legal system in general and lawyers in par-
ticular. Our 600-form section is used by many
practicing lawyers who, like you, can benefit
from prepackaged forms that can be edited
upon demand. Lawyers can do this more
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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
of turning the matter over to an attorney will
save them time and therefore save you money.
Audio One: Introduction
Tip: If you ever feel “concerned,”
“worried,” or “uncertain” about any-
thing discussed or presented in a legal
form, that is your tip-off to contact a
lawyer for clarification and implementation.
Self-help forms should never be used unless
you are entirely confident of your actions. We
do not offer legal advice. We offer personal and
business advice about how to interface with
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Legal Survival Kit
the legal system and the lawyers within it.
Our business advice to you is to select the form
suitable to your needs. Then fill in the blanks,
as you believe appropriate; and then have a
lawyer review it. This approach will save you
time, money, and permit the lawyer to focus on
the legal issues, not the paperwork. If your
lawyer advises against the form, take his or her
advice.
This Guide or Survival Kit is intended to guide
you through the legal thicket. The primary
purpose is to inform you of your options, sug-
gest pitfalls to avoid and opportunities to seek,
as well as make you better informed when dis-
cussing these matters with an attorney when
you believe it necessary.

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
effectively intimidated us, and we only give Did You Know?
business and personal advice in this CD-ROM.

Not withstanding this restriction, we believe Japan, unlike the US, graduates
the most important part of the law relates to more engineers each year than
how individuals and corporations use the tools lawyers.
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.

www.simplymedia.com Legal Survival Kit

Written Agreements
Their Purpose
The most significant thing about a written
agreement is that it clarifies what “you get”
and what “they get”. The most practical ben-
efit of a written agreement is that, unlike an
oral contract, memory cannot alter the facts.
On the simplest of levels, an agreement
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
fact, most of us have wavering memories that
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.
Furthermore, written agreements are often
especially useful in personal situations because
they clarify the terms of an exchange of money,
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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
money or property. A written agreement at
least allows you, them, and the world to see
what the actual agreement was. In summary,
then, written agreements are just as useful in
personal as in professional or outside circum-
stances.
Audio Two: The Purpose of
Written Agreement
Your Responsibilities To
Others: What You Owe Them
The leading cause of legal conflict is people
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Legal Survival Kit
and companies on one side of the issue or the
other not recognizing their responsibilities
under their agreement or agreements to the
other party or parties. In simple terms, they
did not understand or did not properly review
what they had to pay or do to satisfy the other
party. Often, once the bickering begins, both
parties begin to point fingers at the other party
and overlook their own responsibilities.
This difficulty usually arises because one or
both parties ignore the reason the other party
signed the agreement in the first place. This
reason is of “little” interest to the other party
because this is not why “they” signed the
agreement. However, if you wish to avoid
legal problems, it is always imperative you
understand the motivation of the other party
so you can prevent legal conflict from arising.
Audio Three: What You
Owe Them
Recommended approach: When conflict
develops, identify what the other party wants.
This often changes due to circumstances relat-
ed to the parties or the environment as a
whole. For example, in a poor economy, people
and institutions get more desperate to get
what they want; this often serves to inflame
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-
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es and overreach on behalf of their clients.
This stems from both their training to be vig-
orous advocates and their compensation meth-
ods which relate to billable hours, the more the
merrier for them but not for you. Therefore,
you are advised to seek out the other party
independently and try to negotiate a revised
approach to your dealings first. If a lawsuit
breaks out, there will be time enough for the
lawyers to try to settle the matter at a later
date. Even after litigation has commenced,
the best hopes for a negotiated settlement
remain with the parties who have the most to
gain from prompt resolution prior to extended
litigation and trial.
When conflict arises over an agreement, it is
important to try to openly discuss this point as
if it is a common problem without assigning
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
bring yourself to do so emotionally.
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.
Why? Because the litigation process usually-
consumes more time, emotions, and money
than the case is worth. Therefore, you are well
advised to seek out advice about how to
resolve these issues, such as we offer in our
Negotiations Handbook and Conflict Resolution
discs.
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
“ is the legal right to be
left alone
” can proceed with relative certainty that you
will get judgment. However, judgment is not
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

learned. In a football analogy, the quarterback
called this play once too often and now the
defense is all over it!
Tip: Since you know settlements values
are down, consider taking less. Splitting
the difference is usually the best
approach since neither side loses face.
This is not legal advice; this is a quick practi-
cal approach.
Common Complaints In
Disputes That Relate To The
Problem Of Responsibility
This section is about how you got into trouble.
Understanding how you got there should help
you get out this time and hopefully not fall
into the same trap next time. This section
describes the personal and business reasons
why you got to where you are in a dispute. It
is not about what the legal ramifications of
your case or potential case are. Lawyers are
paid, and paid well, to unscramble these mess-
es. Our purpose here is to advise and forewarn
you in advance of ways to avoid these conflicts,
and their ultimate resolution through negotia-
tion or the use of lawyers.
“That Wasn’t Why I Signed The Agreement.”
When a dispute arises, many people say, “That
wasn’t why I signed the Agreement.” They
continue by saying, “That point isn’t impor-
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
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often the case in disputes. Payment terms are
examples of such clauses. You may have
agreed to pay them in 60 days, but wanted to
pay in 90 days. What’s the big deal, you may
have thought, if you pay just thirty days late?
Well, in fact, their entire banking relationship
may be in jeopardy if you do not pay within 60
days. Or, they may have been only able to set
up their payment plans to their own vendors
strictly based on their securing your firm writ-
ten commitment to pay in 60 days, promptly.
Note: This also may be part of the “gotcha”
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
to. You are much better off openly discussing
these issues early and ensuring that the other
party can live up to this part of the contract. It
is one thing to get commitment on something
they do not want to do, but can do. It is quite
another to secure agreement on something
they really cannot do. If this is understood
early, you can often work around it. If you can-
not work around it, you may be better off not
making the agreement since it cannot be lived
up to later.
“But They Agreed To Do It!”
They may have agreed to do it. But, if you
forced them into a corner, and they felt they
had no other option, they may have signed the
deal and hoped to renegotiate out of this point
later.
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Legal Survival Kit
Warning sign: You pressed hard on certain
points and got their commitment. They told
you “we are going to have a hard time with
that” but you pressed forward anyway, disre-
garding the flashing yellow lights.
It is a lot harder to get out of an agreement
than into one. Do not rely on a legal document
to trap or compel the other party to live up to
terms they have warned you are burdensome.
You may eventually prevail in court. But you
undoubtedly will have a lot of costs and heart-
burn along the way to this resolution, even if
you achieve it. And, in the end, you may not
collect on your judgment, even if you get it,
due to defendant insolvency, being overruled
on appeal, or for a host of other reasons.
In fact, this uncovers a major weakness most
lawyers have. They focus almost exclusively
on a court victory, or a “judgment,” without
giving proper weight to the probability of col-
lection of an award, if granted. As a civilian, or
nonlawyer, you should use your business skills
to determine whether the defendant can in
fact pay; has a habit or ability of wiggling out of
judgments; and the like. In sum, a lot more
judgments are granted than collections made.
Before becoming a plaintiff, be sure you have a
solvent defendant with a habit of paying when
they lose.
Common Approaches in
Disputes: Negotiations to
Hardball tactics
Audio Four: Common
Approaches
That Can Help
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What The Agreement Should Say For Your
Benefit
In adjudicating (deciding) a case, the Court
first looks at exactly what the agreement
states. The Court tries to interpret the agree-
ment “strictly”, or according to what it actual-
ly says. Ambiguity is what the potential
“loser” tends to emphasize. The potential
winner focuses on the actual words, written
terms, and conduct, and thereby seeks “strict
construction” of the language.
Short, to-the-point contracts help here. Well
known “boiler plate” or standard language
helps your case because the Court “knows”
what it means. The longer the contract, the
better the chance to find a loophole. So, why
do lawyers write long contracts? Because they
are paid by the hour and keep thinking they
will “help” their client by piling on more lan-
guage. Usually longer contracts tend to
obscure the core agreement and, worse yet,
often introduce contradictory language that
defendant lawyers love to jump on and use
against the plaintiff.
As a defendant, pray for long contracts and as a
plaintiff, fear them!
Reconsider Your Position
Rarely does anything work as well to calm ten-
sions and set the tone for a solution than an
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.
Start with reconsidering your objectives. If
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
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Legal Survival Kit
cost. Conflict is more easily enflamed than
extinguished. Effort to extinguish conflict
early can produce surprisingly good results for
both parties.
If You Think Litigation is Inevitable, Get
Advice Promptly
It is under this circumstance that lawyers are
the most useful. Your first step should be to
consult your lawyer vigorously about options.
Often the best solution is to file suit, or answer
their complaint, and then, with both sides’
stakes in the ground, quickly move for a nego-
tiation session to see if a resolution can be
reached. Why? Because you have both proven
how tough you are. Now you can see what can
be done. Early compromise to avoid litigation
is often seen as “weakness.” So, seeking a ses-
sion after complaints, answers, and counter-
claims have been filed, takes you out of this
arena of perceived weakness.
If Inevitable, Invest In Your Initial Answer And
Counterclaims
Now is the time to plan your defense and
counter-attack. Contrary to what
many lawyers think, they are
You Don’t Say
The shortest distance
“ between two points is
rarely a straight line in
” avoid expense, conflict, dissension, and trou-
the law.
Deaver Brown, Author
www.simplymedia.com
not as “cute” or “subtle” as they think and
often telegraph their intentions early on. If
the other side starts out reasonably, you can
often resolve the matter easily. If they start
out tough, of the “hard ball” school of negotia-
tions, you know that you have to prepare for
litigation.
Interesting point: Very few negotiations fall
into the middle ground of balanced discussions
and approaches. So, your challenge is to figure
out whether you are dealing with reasonable or
hardball people. Then you can proceed
accordingly.
Just because you are right or wrong up to this
point, does not mean the trend will continue.
You can make up a lot of lost ground by acting
properly with regard to the agreement in dis-
pute and noting how your opponent is not.
The worse your case, the more important it is
to mitigate your damages to minimize the ulti-
mate negative result. It is no different than in
sports situations. When your opponent gets
ahead, they tend to get confident, forgetful,
and lazy. In fact, the potential loser can use
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
come behind win in sports!
Defensive Actions
This section deals with such actions as inter-
preting agreements and defending your inter-
ests with the most appropriate methods. This
part also suggests ways for you to minimize and
ble.
Much Trouble Can Be Avoided
Difficult neighbors, relatives, employees, boss-
es, subordinates, town boards, hazardous con-
ditions, barking dogs, dangerous equipment,
12
Legal Survival Kit
teenagers on the loose, contracts, agreements,
inheritances, or other relationships are every-
where in most of our lives. The best single
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
the door or leave town. But you can reduce or
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:
boundary lines, divorce settlements, work rela-
tionships, teenagers, or agreements. Over
time, though, you can substantially adjust your
activities and, essentially, duck.
Small appeasements can go a long way. Turn
down the radio or chain your dog for the neigh-
bor. Praise the difficult relative to others so it
gets back to them. Maneuver around to get a
new boss or subordinate. Ease out the difficult
employee. Resign from a troublesome town or
nonprofit board or appease them. Give the big
dog away or don’t get a new one. Make con-
tingency plans for poor, weak, or onerous
agreements, contracts, or settlements. Work
on these issues continuously and you will be
surprised at how they ease away or at least the
decibel level is reduced.
Visualize a simple image: It is a lot easier to
dam up the Mississippi at the headwaters in
Minnesota than when it is a mile wide in
Missouri. Head off trouble early and you will
benefit handsomely at a much lower cost.
When Trouble Calls In The Form Of A Legal
Letter
Recognize and internalize immediately that
you have already “lost” something because you
are involved and were not able to head off the
problem earlier. If the letter is from a collec-
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tion agency, they are usually empowered to
settle claims for at least 33% off the face value.
Keep this in mind if you can settle the matter
with cash. If not, keep reading.
Audio Five: So You Got a
Legal Letter
If the letter is from a lawyer, it is usually from
a collection lawyer who is also usually empow-
ered to settle a claim for something less than
face value. Good lawyers do not generally
involve themselves in collection matters you
would be involved in other than large corpo-
rate matters. So, you usually are not dealing
with the A team here.
If the letter is about anything but straightfor-
ward collections, and is not a simple request
for information, or forbearance, such as keep-
ing your dog chained up or quiet, complying
with a zoning law, or other straightforward
matters that you can promptly comply with if
you so chose, then you need to consult a lawyer
promptly for advice as to how to proceed.
The Tough Guy Letter.
This kind of letter details how bad it is going
to be for you if you do not do everything they
want you to immediately. This is a standard
off-tackle play these days. It is well known.
Even most lawyers don’t expect it to work very
well since it has become so common and famil-
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-
tle for. Therefore, you have the moral high
ground and can use it to settle for less.
13
Legal Survival Kit
Collection Letter—Asset With a Lien Such As
a Mortgage or Car Financing
If it is about an asset they have a lien on such
as your car or house, they have all the leverage
and all the advantages. If you truly cannot pay,
work out the best payment plan you can and
contact them to see if it will be acceptable to
them. If so, live up to it and try to regain your
financial footing. If it is not acceptable to
them, explain that you must now see a lawyer
about how to deal with the problem. Ask them
again, if they won’t reconsider their position.
If so, wonderful; if not, get a lawyer.
Remember that if you can pay, consider care-
fully exactly what you can pay and when you
can do it. Virtually all of us “know” when we
are late on a mortgage or car payment. You
“know” the problem. Only you can determine
whether you can get current, or up to date
again, or not. If you can, or have a good chance
of it, OK; deal. If not, see the lawyer. If in
doubt, see a lawyer. At this stage, you do not
want to commit to an unrealistic payment
plan. If you do, and you break the plan, it will
count against you with the collection agency or
lawyer and they will only attack more vigorous-
ly on their next contact with you. When dis-
You Don’t Say
You can discover what
“ your enemy fears most
by observing the means
” tor or a credit card bill, and believe a col-
he uses to frighten you.
Eric Hoffer, Philosopher and
Longshoreman
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cussing with them what you “can” do, remind
them of this problem of potential broken
promises—and you do not want to go down
that road nor do they want you to do so. That
may help. If not, go back to the lawyer option
again.
Collection Letter—Unsecured Debt
You have most of the advantages in this cir-
cumstance. They have no lien or asset to
repossess. They must first use the court
process to get a judgment that they can later
convert into a lien. Then they can apply the
lien to something you own. This is a long
expensive process that no collection agent or
lawyer wants to undertake. This is especially
true since most of them are on contingency,
which means they only get paid a percentage
of what they collect. These circumstances
provide you with substantial leverage to rene-
gotiate your debt. If you haggle a bit, you can
often reduce the face value of your debt, with-
out accrued interest or fees, to 50% or less.
Collection agencies generally get 25% to 50%
of what they collect. So the firm that “owns”
your debt has already given up to some extent.
As a result, they are usually vulnerable to giv-
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.
Tip: If you are having trouble with an
unsecured debt such as a local contrac-
lection agent is in your future, consider a set-
tlement for a partial payment with no bad
impact on your credit history with the compa-
ny in question. 50% to 75% will generally do it.
Sometimes you can even set up a payment
plan. If you don’t feel comfortable doing this
yourself, see a lawyer. But, generally, if you see
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Legal Survival Kit
a lawyer you have to pay more than the value of
the bill. Pay the bill if you feel nervous.
Otherwise, negotiate or see a lawyer.
Collection Call
Same situation as described in the collection
letter sections above.
When You Are Sued
Get a lawyer—except for small claims court
where you will usually do better answering
complaints yourself. There are upper limits on
the claims that can be brought against you in
Small Claims court. These claims usually can-
not exceed $2000. Therefore, the expense of
hiring a lawyer usually exceeds the amount of
the claim itself, making it more productive to
do the claim yourself. Notwithstanding that
fact, you can often do well to run your
“defense” and potential “counterclaim” by
your attorney to get their quick read on the
matter. This small investment can often pay a
substantial dividend for you in either negotiat-
ing your claim with an arbiter at small claims
court or with the judge.
Audio Six: PMI Thinking
Before you see a lawyer regarding litigation,
write down the issues—their pluses, minuses,
and interesting points. Be sure to line up the
counter claims.
Small Claims Court
They will encourage you to negotiate. Take a
check with you. No matter what the claim,
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you can usually get a broad release—for even
broader than the single claim—especially if
you bring the check. The presence of a check
will usually encourage the other side to take a
lesser amount. Use this advice prudently and
you should be able to save yourself some
money in Small Claims court. They will usual-
ly let you try to work out the matter with an
arbiter first, with you using the advice above.
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-
come.
How Courts Approach And
Interpret Agreements
Courts check out two things prior to applying
the laws to your case:
What did the agreement state?
What did the parties mean or intend?
Audio Seven: The Court’s
Approach And
Interpretation
Occasionally, Courts will decide to intervene
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
help and enforcement”) on these grounds,
Courts are reluctant to enter into these types
of immediate enforcement activities and gen-
erally do not act until a trial is conducted (or,
as in most cases, the parties reach a settle-
ment).
Venue, or place of the lawsuit, can be very
important for these purposes. Law is politics,
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Legal Survival Kit
of course, as one can tell by a casual reading of
newspapers. Just two examples: in a heavily
Democratic state like Massachusetts, liberal
causes such as those of tenants (the disadvan-
taged) will usually be heard with more favor
than in a Republican state. In a Republican
state, judges would be more likely to uphold
the landlord (property rights). So, the court is
more apt to make a finding in favor of a tenant
in Massachusetts and a landlord in a
Republican state.
Action Item: In your agreement, be sure to
establish the venue, or place for resolution, in
the jurisdiction apt to be most favorable for
your cause. In our case at Simply Media, we
have locations in both Massachusetts and New
Hampshire. For issues that the Democrats
favor, we write in the venue as Massachusetts.
For those that Republicans are apt to favor, we
write in New Hampshire.
on this approach the most. Why? Because
“What the Agreement Says” works against
them. The best way to beat this approach is to
use a short agreement with the Entirety of the
Agreement clause; in layperson’s language this
means, “If it isn’t written down here, it doesn’t
apply, unless it is written down later and
signed by both parties.”
The recommended language for your agree-
ments to cover these two issues (venue and
intent) is:
“This Agreement embodies and sets forth the
full understanding and agreement between
the parties. No change can be made except in
writing and signed by both parties. Any dis-
putes must be brought in__________city, in
________ county, ___________ state and in no
other venue.”

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

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Agreements between
Friends or Relatives
Audio Eight: Agreements
Between
Friends
Financial and legal agreements between
friends and relatives are the most challenging
ones to discuss, create, and enforce. In your
discussion of these subjects, you should use
the document creation process as a means to
flush out what the parties really mean. For
example, a request for a loan or a rental is often
just a plea for a gift. The requesting party may
think that somehow, some day they will repay
the grantor; but, in fact, they intend to receive
the money or property and then unilaterally
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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
to a productive solution.
Commonly asked questions are:
“Why do we need an agreement?
“Don’t you trust me?”
These lines tend to back us off. The natural
response is to say, “No, I do trust you and....”
The best answer is, “It has nothing to do with
trust; it has to do with clarity. If we write it
down, we will remember it clearly. Memories
serve to change events; or, like the old game of
whispering around the table, once a line is
repeated several times it loses its original
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Legal Survival Kit
meaning. And, of course, one of us might not
even be around to explain the matter.”
Often this kind of discussion causes the poten-
tial recipient to drop their demand entirely.
Since they never really intended to repay the
loan they have requested nor pay for the rental
they wanted, they do not want to enter into a
formal agreement so will often walk away from
it entirely when confronted with your require-
ment to sign a formal agreement. Your best
move is to give them room to retreat and avoid
moral spin so they do not feel belittled and
humiliated by the process and their own
retreat.
If the demand is not dropped, then you can
put the request into standard promissory note
or rental agreement format with the appropri-
ate interest rates, repayment dates, collection
expense recovery clauses, collateral backup,
and the like. Under either alternative, you will
be well ahead of the game.
Our final suggestion, if you get to the point of
negotiating this kind of agreement, is to
request them to lay out all of the terms them-
You Don’t Say
Never make the mistake
“ of confusing justice and
the law.
” cumstances change (e.g., a sharehold-
Justice Oliver Wendell Holmes, Jr.
1906
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selves so they “own” the agreement and its
repayment and collection terms. If they make
a silly recommendation on a specific term or
terms, usually just a lifted eyebrow will get the
terms into the right “ballpark.” These
arrangements are never easy and certainly wor-
risome. To minimize your potential financial
and emotional losses in the matter, let the
potential recipient set the terms initially so
you have the least to haggle about. Then gird
your loins as you go into battle to hammer out
the most reasonable and prudent terms you
can, always keeping in mind that if they “walk
away” from the entire matter that is usually
the best result.
Stock Investments with family,
friends, and business associ-
ates
As with family, friend, and business associate
loans and rental agreements, businesses
involving these kinds of parties should be for-
malized and stock certificates issued. It is
especially important that stock agreements
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
the situation. The risks in
family/friend/business associate
loans and rentals, as well as stock
investments, are due to the fact cir-
er wants his son or daughter to be
employed by the company on the sole
basis that they are a stockholder).
Sometimes the party investing the initial or
follow on money has financial setbacks and
“needs” the money back. At other times, a
death, liquidation, or sale occurs and “other”
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Legal Survival Kit
parties, such as heirs, trustees, or administra-
tors are involved.
In one such case involving a family loan to my
first company, a written promissory note docu-
mented in corporate records resulted in the
loan being promptly repaid by the new owners
right on schedule without intervention by any
lawyer. This is just one example of how the
written agreement can assist all parties with-
out being abusive of any of them.
One of the most contentious areas in family
businesses relates to whom or which “side”
will get plum corporate jobs and the accompa-
nying pay scales. It is our experience and rec-
ommendation that initial stock agreements
should expressly state that stock ownership is
separate from corporate management.
Dividends should be paid in cash not corporate
jobs or, as is referred to in government perks,
in pork.
Finally, the stock agreements should provide
for a straightforward exit position if contention
breaks out and no one party has clear majority
control. A buy sell agreement works well to
establish a clear exit path should certain spec-
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ified conditions take place such as no clear
majority being in accord on a course of action.
A second approach is to provide for an orderly
sale process of the enterprise with the funds to
be received divided up among the sharehold-
ers, if contention breaks out. Just the process
of offering a company for sale often makes all
of the parties more realistic if the offers
received are far less than the insiders believe
the company is “worth.” Buy sell agreements
usually require this approach to establish fair
market value, or what the company is “worth.”
At that point, you should be able to negotiate
a reasonably satisfactory buy/sell solution, as
long as you had it in place to start with.
Tip: This kind of stockholder agree-
ment requires the use of the best attor-
ney you can afford to extract the facts,
set up a suitable agreement, and provide
a solid and agreeable exit position should the
stockholders descend into contention. Since
circumstances change rapidly these days, you
are well advised to update your stockholder
agreement and buy sell agreement on a regular
basis. You should try to do this at least once
every five years, if not more frequently.
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Legal Survival Kit
Business Agreements
Audio Nine: Business
Agreements
Before drafting an Agreement, you should first
establish a term sheet. Term sheets are an
outline of a proposed agreement. These are
useful to prepare before entering a negotiation
so you know what you want, what you will
accept, and what is your walk away position.
The problem with contracts is they draw you
into liabilities. The risk is primarily to the
stronger party; and yet, interestingly, it is the
stronger party that usually demands the agree-
ment. Counter-intuitive but true.
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Lending 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
simple agreement. Again: Business advice.
Unrealistic expectations lead to many prob-
lems. This is why many large companies
refuse to deal with very small companies or
individuals in many areas. They are rightfully
fearful of the “intent of the parties” conse-
quences of their actions or other extreme posi-
tions that the weaker party might charge them
with and might just stick in Court.
Term sheets tend to eliminate many of these
problems by allowing you to work out carefully
your options and then having a reference point
when you get into the heat of negotiations.
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Legal Survival Kit
The simpler the contract, the less likely a
Court will ascribe “broad” relationships to it.
On the other hand, long contracts suggest a
substantial relationship and open you up
potentially to very intrusive and expensive
investigations in many Court encounters.
Tip: Every business agreement should
have a well-defined exit position. You
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.
envelopes to give you the appearance of corpo-
rate respectability to go along with your formal
incorporation. You can click here to order your
new stationery at an affordable price (the same
company does checks and stationery). You
should set up a separate phone and fax line, as
well as email address (under AOL it can just
be another screen name), to give you the aura
of being a going concern. In the corporate and
legal world, appearance counts. So do it!

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

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Personal Litigation
Audio Ten: Personal
Litigation
Personal litigation can be particularly nasty
because it involves things and people so close
to you. Boundary lines, wills, and divorces are
infamous for their ugliness. You rarely hear
about a nasty trademark or promissory note
dispute. However, recently, more people have
been taking these “personally” too. These
only get “nasty”, in our experience, when the
parties get personal.
Tip: Try to keep conflicts as impersonal
as possible so you can heal the rift as soon
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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.”
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
other lawyer does this, actual litigation will
tend to uncover it and the Court may well see
the bias that led the matter not to settle.
Boundary Line; Neighbor
Disputes
Business advice suggests selling and moving.
No one wins these. They can be very bitter,
debilitating, and linger for decades. Legal
advice says you may win. Personal advice says
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Legal Survival Kit

You Don’t Say
The law cannot make a
“ man love me, but it can
keep him from lynching
” what you can—which will lighten your load if a
me, and I think that’s
pretty important.
Martin Luther King, 1962
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-
stronger-righter, and move on to other issues in
your life. As one old time lawyer told me,
“The worst legal problems are boundary lines
and wills.” At least with wills, you have finali-
ty in that some conclusion will result and, to a
large extent, you “know” your family. With
neighbor problems, things can rapidly escalate
out of control due to differing value systems
and a lack of family bonds to cover over some
of the bad feelings and disputes.
Having said this, there are many things you can
do to limit your exposure and upset. First, be
polite and conciliatory without being a door-
mat. If a neighbor asks for something above
the normal or outside of the context of your
relationship, suggest that they reciprocate in
some way so you can keep the relationship bal-
anced. Tell them that you “are sure they want
to keep balance in the relationship as well.”
Secondly, keep your children, pets, friends,
and cars off their property. This is an obvious
point but many people just slough it off saying,
“They don’t mind.” They may well be boiling
inside and when the pot boils over you will not
be happy. Third, engage and talk to them
occasionally to calibrate what they are up to,
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what they are thinking about, and indirectly
about how you are doing with them. You may
be surprised by what you hear. Try to correct
legal problem arises later.
Wills
Audio Eleven: Wills
Even lawyers avoid making wills for them-
selves. Superstition is the major problem for
most of us. We all need to get over it. Make
the will. It may save people close to you tons
of trouble later.
Every family has stories about the great pro-
bate fight that centered on the piano stool,
summer cottage, or other item loaded with
personal memories and feelings.
Tip: In this age of divorce and remar-
riage, give your spouse half (usually
legally required), set up trusts for your
children for up to the other half (if the
surviving spouse remarries your children
become “step-children” and Cinderella told us
all about how that works out) with the execu-
tor being a banker or third party. This is not
about “trust.” This is business advice about
human nature.
Also, do not put too much pressure on the
process of drawing up a will by trying to antic-
ipate all of the events for the rest of your life.
In this fast changing world, drawing up a will
every three to five years makes perfectly good
sense. Most of the changes will be minor
adjustments. A good way to remember to do
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Legal Survival Kit
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
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.
Tip: Provide for an auction of all ques-
tionable value items. This is especially
true for sentimental items. Everyone may
“want” the piano stool Mom sat on. But no
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
for all of these objects. Then each party can
use their “percentage currency” to acquire
what they want or bid above the limits with
their own cash. This process usually works to
turn down the heat and get the Estate liquida-
tion process moving. It worked splendidly in
my family to ward off battles over the silver-
ware, furniture, and similar items.
Real Estate Trusts
Real Estate trusts for your private residence or
residences are a good idea in this litigious age.
It means that litigants in other matters cannot
“attach” a lien or prejudgment attachment
against your property. It also tends to discour-
age plaintiff lawyers because it prevents the
quick kill of an attachment against your prop-
erty that they might be able to use to make
you settle up on another matter entirely. As
with estates or wills, fill out the forms but be
sure to use a lawyer. These areas require in-
depth thought and experience to determine
the best ways to proceed. Again, an ounce of
prevention here can save you having to pay a
pound in cure later.
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Divorce
Audio Twelve: Divorce
Bookshelves would collapse if all the books
published on divorce in just one year were
stacked on them. Without taking sides, our
business advice is to take note of the following:
Winners in Divorce
The only definite winners are some female
members of the upper middle class and upper
class. They can make out well. Everyone else
loses, especially lower and middle class
women. Most divorces squabble about the
kids. But, the kids become like Korea, and get
battered and scarred, and 50 years later the
Koreas are still not reunited.
It only takes one person to start a fight, as
Ogden Nash once said. So, above all, remem-
ber that you are entering treacherous territory
here and must therefore be doubly cautious,
vigilant, and careful.
Tips to the Losers (Except For
Husbands Of The Winners)
Go easy on each other. Otherwise the lawyers
will get what little there is. Both sides may
benefit from Court enforced child support.
That way, the benefits both increase and
decrease according to the actual received
income of the parties. Split the property and
move on, if you can. This is easier said than
done because of all the emotion attached to
the children, the property, and the old rela-
tionship itself.
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Legal Survival Kit

Advice to the Former
Husbands of Winners
Understand you are going to lose. Do not
make the mistake that many men do in this
situation and be tempted to hold on to the soft
assets and hard debts while giving up the hard
assets and soft debts. You are better off selling
and splitting most assets, especially the mari-
tal home. Then nothing lingers as long. If
more husbands of winners forced the sale of
the marital home, they would force the poten-
tial winner out of the old emotional zone and
get them moving towards a new life.
Make child support dependent on your annu-
ally earned actual income. Otherwise, if you
lose your job, off to jail you may go—and this
isn’t Monopoly, there is no $50 card here to
get you out of jail. Some winners love to hear
the jail door slam on their ex-husbands despite
the consequences to the children and their
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
5 on 3 penalty situation. Ouch.
This is also good business advice for any case
where you are the potential big time loser.
Always work to minimize the amount of the
damage award and the time period you must
keep paying. Try to keep your cool and
remember that owing the money may be out-
rageous, but every little discount helps.
Child (Mother) support is where the real
potential problem is, not the division of com-
munity property. So if there are no minor
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children under 18, there is rarely a problem.
Courts are tough on making people go back to
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
involved. If you have children near 18, consid-
er long and hard whether you don’t want to
wait until they are 18 before you start a divorce
proceeding if you are one of these husbands.
Tips For the Winners
This is one area lawyers perform magnificent-
ly. You need no advice from us other than to
decide how much pain you wish to inflict. The
power is yours.
Joan Lunden had this happen to her. It
changed her mind about this stuff after she
was attacked—and got whacked. Before
launching into such an attack yourself, you
should read up on the Joan Lunden story. It
might just get you to holster your weapons.
You Don’t Say
The law is only one of
“ several imperfect ways
of defending what is
”
better in life against
what is worse.
Vaclav Havel,
Prime Minister and Playwright
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Legal Survival Kit
Three Steps To Take
To protect yourself
Audio Thirteen: Review Your
Exposure
You can do a lot to protect yourself. The fact
you are reading this is a major step forward.
Let’s go over some things to help you.
Review Your Areas Of
Exposure
Exposure relates to what you or your spouse
do. What your minor children do. Or what
happens on, to, or with your property. Make a
list relating to these three categories: what
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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
a will, real estate trust (s) for your property
(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
the Background section.
Insurance
The best rule for insurance is to insure for
what you cannot afford to lose. Pay directly
yourself what you can afford to lose—it is
much cheaper in the long run. So, with car
insurance, you are better off with a high colli-
sion deductible but spending the savings on
26
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

“ hide the truth because he
is generally guilty.
” Make a date with yourself to do this once a
year. Choose an anniversary date such as New
Year’s, your birthday, or some other such day.
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
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You Can Walk Away
Your Inalienable Right To Retreat
One reason many people become more suc-
cessful in business as they get older is they
learn to give up, walk away, retreat, and not
fight on most issues. If it is too hard to bust
through the wall, they learn to walk around or
away from it. If people are too difficult, they
don’t work with them. What they do emotion-
ally is distance themselves from trouble and
troublesome situations. I have found this hap-
pening to me, as I get older. It is one of the
enormous advantages of age.
A question: If Stalin, Lenin, Hitler, Saddam,
and various terrorists had been in their 70’s, do
you think they would have done it to start
with? Chinese leaders have been older. So far
they haven’t attacked anyone except for Tibet
in their own borders. Castro became pretty
tame once he reached 65. Now that he is 75
www.simplymedia.com
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
harder the next time.
Result: You have one less problem in your life.
They may just think twice before doing it
again, especially if you do this in your home
community.
You are a boss and have a troublesome employ-
ee reporting to you. You can suggest giving up
and say to your boss, “Look I can’t manage
them; I don’t want to make it worse. Why
don’t we move Sally-Billy before we have a real
problem.” In business, bosses are terrified of
being sued by employees. So, your humility
should impress your boss and include him or
her in the decision to take conservative action.
Now, to whack the nail a little harder, you can
say, “Look boss, let’s be smart. None of us is
perfect. What if we really do blow it some day.
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Legal Survival Kit
Do we want them around to crow about it or
worse yet rat us out?”
Result: You are on record about the problem.
If anything comes up later, you put everyone
on notice. You have taken the heat off your-
self no matter what the outcome.
Interesting Point: None of these actions
resolves the problem. That is a much more
challenging enterprise and not the subject of
this CD. Our Conflict Resolution and Negotiations
Handbook discs address that process. In this
case, you have merely mitigated the damages.
As you get older, most people learn it is far
more productive to mitigate damages than try
to eliminate them. As Mark Twain said, “You
can’t throw a bad habit out the window. You
must coax it down the stairs.”
You have a contract with a difficult person-
company-type. “I am sorry X, we just aren’t up
to your standards. We need to move on.”
Customers for Life by Carl Sewell describes “fir-
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.
All of this is easier said than done. However, it
is good, solid business advice as to how to
reduce future problems that could well turn
into litigation. Remember: you have the
inalienable right to retreat honorably and with
all due haste.
We strongly recommend you incorporate uni-
lateral “give up” or exit clauses in all of your
contracts, with or without cause. Consider
putting in clauses, which we do, to give you
the right to “quit” or “stop” without giving
reasons. In retail they have a marvelous phrase
for it, “Your first loss is your best loss.”
In summary, when a situation is not working
out well, one of your best options is an orderly
retreat so you can focus your energies on a pro-
ductive situation. It is all too easy to get
caught up in the emotion of conflict. Better to
move on to opportunity—unless, of course,
you are a lawyer and then you get rewarded by
more billable hours. However, you, as a civilian
and nonlawyer, don’t want to be caught footing
the bill for those billable hours.

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.

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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-
Audio Fourteen: Don’t Just nesses, and get good legal help early. As the
Blame the old saying goes, “An ounce of prevention is
Lawyers worth a pound of cure.” That is exactly why
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.
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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

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