4 Tips for Fixing Your Business Blind Spots

If you drive a car you know about "the blind spot."  It’s that seven o’clock position from the driver’s point of view where you can't see a vehicle off your left flank in the rearview mirror.  To avoid a collision you need to make the effort to look over your left shoulder to make sure it’s safe to merge, or pull into the left lane.  

What about your business blind spot?  How do you avoid collisions there?

Business blind spots come in all shapes and sizes, and some of the most dangerous ones are lawsuits.  While it’s impossible to keep someone from suing you (frivolous suits are always a possibility) there are lots of things you can do to keep a lawsuit from sticking.

It all starts with employees.  In legal terms, employees are agents of their employer.  They speak and act on behalf of their organization. They have apparent authority.  That means that everything they say and do in their job capacity reflects on their employer and can create legal liability for their organization. From a strategic perspective, the cause-and-effect relationship between employee actions and corporate consequences means that all employees are individual gatekeepers of their organization’s legal liability.  They can create liability, or they can mitigate it.

The business documents employees write are important because unlike human memories that can fade, documents are tangible evidence.  They live you computer memories and conventional paper files.  Once they are created they have a life of their own, one whose end is by no means certain.  They can come back to haunt the company unless they are managed well during their life cycle.  

Unfortunately, most employees don’t appreciate the pivotal role they play in a document’s lifecycle or the role documents play in protecting their employer’s legal health. This lack of awareness can turn business documents, such as emails, instant messages, letters, faxes, and memos into litigation wild cards or ”smoking guns.”  That pitfall is also your first opportunity for avoiding predictable surprises.

One of the best ways to keep a lawsuit from sticking is for your business documents to tell a good story.  Accomplishing that means starting at the source: your employees.  Once they understand the legal significance of the documents they create, they can take measures to avoid the creation of smoking gun documents such as:

1. Using communication channels wisely, such as using a letter instead of a Twitter-style text message to accurately convey subtle or complex thoughts; 
2. Keeping communications respectful, constructive, and professional;
3. Sticking to business and keeping sensitive information confidential; and
4. Always striving for clarity and accuracy to avoid misunderstandings that can escalate into disputes.

Most important of all, they can use good documentation to not only identify problems but it also memorialize how they fixed them.  Good business documentation thereby performs a valuable function by helping you achieve and prove closure.

Lawsuits are triggered by the breach of duty, supporting evidence, and the incentive or motive to take action and sue. The first two items are the legal requirements necessary for a successful case; the third is the hidden catalyst that sets it all in motion. Put them all together and they can be a giant blind spot.  But by being proactive and training your employees you can get the evidence piece of the puzzle under control and shrink that blind spot down to a more manageable size.   

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Hanna Hasl-Kelchner is a business legal strategist, author, speaker and trainer who teaches and coaches business people on how to avoid lawsuits.  She is the author of The Business Guide to Legal Literacy: What Every Manager Should Know About the Law and forthcoming How to Turn Your Business into a Litigator’s Chew Toy: Taking the Bite Out of Legal Liability.  Follow Hanna on Twitter @nononsenselawyr and her Chew Toy sidekick @acelitigatorwit.  Subscribe to this blog’s RSS feed to get the latest updates.