Unboxing Business Law: The Art of Not Being a Jerk

Starting and running a business can be daunting, with so many issues which require your limited time and resources. These include drafting a business plan, marketing, advertising, customer service, obtaining capital, accounting, hiring, safety, insurance, legal compliance, among others. You could be forgiven for not reading every word in that contract you signed last week or for not following a procedure you put in place. But from a legal perspective, it’s these seemingly minor details that can end up burning your business. Fortunately, by using certain business practices, you can help reduce the risk of legal claims that could devastate your business. This article discusses one such practice, the art of not being a jerk.

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The A. Hoal Example

Imagine the following scenario. Better Business Practices, Inc. (“BBP”), an electronics goods distributor, enters into an agreement to ship products to another business, called None of Your Business, Inc. (“NYB”). Adam Hoal (“A. Hoal”) is in charge of BBP shipping, and enjoys using off-color remarks to liven up conversations, both business and personal. One day, A. Hoal emails NYB representatives, carbon-copying BBP management, about an order status. In the email, A. Hoal makes a sexually-suggestive remark about NYB’s receptionist. All email recipients disregard the remark.

Months later, NYB sues BBP, claiming that a number of shipments were not delivered as agreed, including late shipments and orders that did not include the correct number of units. Following initiation of the lawsuit, NYB’s lawyer starts the formal process of demanding sources of evidence from BBP, called the “discovery” process. NYB demands all emails relating to the BBP - NYB agreement.

Surprise, surprise. A. Hoal’s unsavory email is handed over to NYB. NYB’s lawyer reviews BBP’s discovery responses and zeroes in on all emails regarding NYB’s shipments, and which happen to include A. Hoal’s email. A. Hoal is called to testify at deposition about the email, and later called as a witness at trial. A. Hoal’s email becomes evidence at trial, and both the judge and jury read the email as it is projected upon a large screen while NYB’s lawyer slowly and deliberately questions A. Hoal about it, making sure that everyone has time to process A. Hoal’s distasteful remark.

“Your Honor, We The Jury Find The Defendant To Be ... A Jerk”

In a civil jury trial, the jury makes final determinations regarding questions of fact by weighing evidence, for example, whether something existed or some event occurred. A juror must make these determinations without emotion, prejudice, or bias. While this a great standard to shoot for, jurors are humans – emotional beings – which can sometimes make it difficult to separate reason and emotion when making judgments. For instance, haven’t you ever said to yourself, “He’s soooo guilty”, after watching a news report about a suspected murderer before you knew all the facts? No, you haven’t? Then you deserve to be commended for your remarkable, rational thought processing abilities. Bravo to you.

Here, the purely rational juror would view the email solely as evidence of whether BBP fulfilled its obligations to NYB. But other jurors may allow their emotions, prejudices, or biases creep into the thought process. Perhaps some are especially sensitive to sexually-charged statements such as A. Hoal’s. These jurors may subconsciously focus on A. Hoal’s crude comment, perhaps filtering out some of the more relevant parts of the email. These jurors could then have a very negative impression of not only A. Hoal, but also of BBP. After all, BBP hired him, and also allowed his statement to go unchallenged. In a close call type of case, the swing vote(s) could hinge on how likable or unlikable a party is. Given how unlikable A. Hoal is, and by association, BPP, are, the jury here could come to an adverse verdict and assign crippling monetary damages against BPP!

While this an extreme scenario (a decent defense lawyer will fight to keep A. Hoal’s remark out of evidence), it merely serves to show how being a jerk is bad for business. Had BBP management been more proactive by, for example, immediately reprimanding A. Hoal and/or apologizing to NYB for the remark, the result may have been different. But A. Hoal is a jerk, BBP looks like a jerk, and BBP may never recover as a result.

R-E-S-P-E-C-T - Even Lawyers Do It

Experienced lawyers know that treating everyone with respect applies not only to the way clients run their businesses, but to the field of law. These lawyers know that, in dealing with disputes with opposing lawyers and parties, you should always consider that every writing or communication you send out may end up in front a judge. That’s why when these lawyers disagree with opposing counsel, they do it respectfully (as hard as it is sometimes with nasty opposing counsel). Litigation lawyers, for example, often submit motions to the court, which essentially ask a judge to issue a court order granting some request, for example, to extend the time to respond to another party’s discovery requests or to prevent a deposition from taking place as scheduled by another party. These motions commonly include correspondence with opposing counsel.

Now, imagine a judge reading your motion, which includes an email from your opposing counsel that uses offensive language directed at you (Yes, I’ve seen such a motion!). This could affect the judge’s perspective of opposing counsel in a negative way, and conversely, positively affect the judge’s perspective of you. Just think about it. You look like the good guy here, opposing counsel looks like an A. Hoal (see the above example). As a result, the judge may be more inclined to grant your request in the case of a close call. And this may sway the judge’s decisions in the future as to disputes between you and opposing counsel. This is an oversimplified example, but it’s meant to show the better route, in almost all scenarios, is to treat others with respect, even when you disagree.

In Conclusion ...

Keep these points in mind the next time you are dealing with a difficult client or an adversary. It does not pay to be a jerk, in business or in law. Showing respect towards others, on the other hand, can pay handsome dividends. It’s important not only that your business follows best practices such as these, but that your business consultants, including your lawyer, do too. If you you have further questions or need help implementing best business practices to reduce your legal exposure, please feel free to reach out to us at Law Unboxed.

Disclaimer: This article may constitute attorney advertising and is provided for informational purposes only. This article does not constitute legal advice nor does it form an attorney-client relationship. Specifically, this article does not address all potential situations and is in no way intended to apply to your particular situation. Qualified counsel in your jurisdiction should be consulted for your specific concerns and/or needs. If you want more information, please contact Law Unboxed with any questions!