I wanted to follow up on an earlier article on the ten stupidest things business people do that get them sued with a simple practice that will help keep you safer – documenting your files.
In the old world this often meant crafting “cover yourself” memos for your physical files, but in today’s world this includes email records, paper notes (whether they are scanned or not), and any of the confirming paper trail that documents your relationship with a vendor, employee, contractor, customer, or supplier.
I asked my friend and star attorney Alan Gassman why he felt it was so important for savvy business people to document their business interactions in writing.
He shared, “Nothing is more important in the business and legal world than putting communications and understandings in writing. There is simply no other way to make sure that each side is on the same page as to any endeavor or situation, no matter how large or small. There is no better way to avoid misunderstandings, ignite true alignment and synergism, or to be sure that things are properly thought out than to put the primary points, and the less exciting but equally important details into plain written form. A great many costly disputes and catastrophes are the result of unintentional misalignment that could have been avoided by a simple exchange of well thought out e-mails. And don’t ever think that being able to testify that someone ‘said’ something will hold any water in a court of law.”
What a great summary of why you need a written paper trail:
1. To make sure you and your counterpart really are on the same page. (It’s easy to gloss over differences when they are just spoken, but hard to ignore when they are in written black and white.)
2. To push you to really think through the deal, relationship, or project. (Writing clarifies and organizes your thinking.)
3. To have a written record of exactly what was (and wasn’t) said.
It’s this last point that I want to address in the remainder of this article – the need to have a clear written trail of what was and wasn’t said.
First, let’s get clear for whom you are writing your notes. You’re writing for three groups of people:
1. All parties in the transaction. This is your chance to make sure all parties really are on the same page. This is your chance to clarifying “representations” and “warranties”, align expectations, and lay out all the agreed to terms and conditions.
2. “The Judge”. 20 years in business has taught me that I before I put it in writing I need to ask myself, “How would a neutral judge who has no background in the matter interpret this writing based solely on what I am putting down here?” This pushes me to shape the trail so they come to the irrefutable conclusion you want them to reach.
3. A rabid, hostile, aggressive plaintiff’s attorney. I found this one was hard to swallow initially. I felt the “truth” should win out and that of course, people would see the “objective” truth to the situation. I’ve since learned that my objective truth is often seen very differently by others. Now normally this is a well-intentioned thing. But when putting things in writing I now use one last filter for my writing. I ask, “How could a rabid, hostile, plaintiff’s attorney twist what I wrote to hurt me and my company?” This sparks me to go back and rework what I have written.
Now you may be saying, “David, this is just so much work, I don’t have the time.” What I’ve learned is that a clear written trail is worth its weight in gold and saves hours of time later. It’s helped me earn more from my negotiations. It’s protected me from vendors who later try to back out of agreements. And it gives me clarity when I myself need to step up and honor my earlier commitments, even if I had to be reminded what they were.
This has enhanced my business relationships and kept my company safe.
If you enjoyed the ideas I shared, then I encourage you to download a free copy of my newest book, Build a Business, Not a Job. Click here for full details and to get your complimentary copy.
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