Fingers In The Dam
That ancient cartoon is an ideal metaphor for our times. The dam is our legal system. The leaks are loopholes in the law, while Daffy represents you and me and everyone else trying to make an honest living and be a good person. No matter how earnestly we try to abide by the law, loopholes pop open all the time that threaten to drown us in litigation.
I got to thinking about this early this year when I decided to avail myself of some free legal counsel available through membership in the Newsletter Publishers Association. I have a pretty good handle on the do’s and don’ts of publishing law, but was about to run something that might anger some folks and, since the consultation was free, thought it best to double-check.
I’m sure glad I didn’t have to pay for that advice. The attorney didn’t tell me anything I didn’t already know. He acknowledged that what I intended to do was well within bounds by any reasonable interpretation of the law, but warned that the only way I could be sure of not getting sued for it was not to do it. (I did it anyway.)
Construction Games: Shortly afterward I was at this year’s MCAA convention listening to a couple of mechanical contractors bemoan all the legal requirements that take up the lion’s share of their time on a construction project, including an ever mounting CYA paper trail.
A spasm of logic suddenly overtook me. It would seem that with all that paperwork to protect them, conscientious contractors should be better insulated than ever before against legal action. I asked the MCAA members if this were so.
They looked at me like I was some sort of cartoon character. Litigation is a construction industry sport. Some sleazy GCs and owners have even made it part of their bid strategy, having discovered that if your lawyers are better than your project managers, you could lose money on construction and still come out ahead in the claims game. So despite all that paperwork, the only sure way to avoid construction litigation is to never build anything.
Think about that. If I never publish anything and you never build or fix anything, we would be model law-abiding citizens!
Lion vs. Hyenas: Then came a recent online discussion among contractors about the legal ramifications of employment policy manuals. A policy manual used to be thought the best way to protect against frivolous employee lawsuits. But it didn’t take long for clever plaintiff attorneys to figure out that any defensive weapon can also be used offensively. Policy manual language not crafted with utmost precision thus came to be used against the employer.
Naturally, this created new work for lawyers writing employment policy manuals. When you pay someone a couple of hundred dollars an hour to build a dam to hold back lawsuits, there’s a tendency to think it will be virtually leakproof. Except that dam is under continuous pressure from tens of thousands of hungry, creative lawyers drooling over big bucks to be won in settlements and judgments. The person who writes the manual must select every word perfectly. A horde of sue-happy competitors need only zero in on one clumsy or ambiguous statement. You take the solitary lion and I’ll take the pack of hyenas. Let’s see who ends up with the kill.
In a world where anyone can sue anybody at any time for anything, maybe it’s time to examine whether we ought to rely so much on lawyers to protect our interests. I’m not so naive as to think that the modern world can operate entirely on the basis of handshakes, but are you so naive as to think that the more you pay in legal fees the better off you are?
Maybe it’s time to pay a little more attention to basic human relations by more carefully choosing your employees, your suppliers, your customers, your friends. Are they decent human beings as well as competent in their respective roles?
Maybe it’s time to start trading some of the latter for the former.