Joann R. Deutch, Attorney - Business Contracts

     This is for those of you who run a business, even if it’s at your dining room table. Is your paperwork a total mess? Does it own the dining room table? Do you toss paperwork when you don’t want to deal with it?
     You are your own worst enemy. You need to stop it. I’m not a clutter organizer, but as an attorney I can tell you that these habits can cost you plenty of money.
     My Practical Legal Pointers answers the question: “Why should I take the time to do this?” I know, you want to be out on that service call, making money. Keeping a paper trail can seem like a waste of your valuable time until you need it to back you up your version of the events.
     Here’s why it’s critical. You’ve heard the term “Hearsay’, or “Hearsay Evidence”. What you need to know is that no one has to believe hearsay. Why? Mostly because it really means - “I heard him say it.” The general rule is that people’s memories of what others say is not reliable. Our legal system wants to be able to ask this “him person” questions to clarify what he really meant.
      Lawyers have a secret way around the “Hearsay Rule”. It’s called the “Business Records Exception”. Here is when your pile of papers make a big difference. The exception is based on the fact that you and your business keep records in some sort of orderly fashion. It used to be that people carried Day Runners and jotted things down in them. Now you can put the same information into your Blackberry. I advise my clients to make notes on the back of invoices and bills about conversations. Always have a date and the name of the person you spoke with. You have to make these notes either while you are talking with the person, or shortly thereafter. If you make the notes after you know there is going to be a dispute, they don’t have the some credibility as they would have if they were made on the spot – in fact they probably have no credibility.
     These notes also serve the purpose of what attorneys call “Refreshing Your Recollection” about one of probably many conversations. When you write things down you actually store it in a different part of your brain. This gives you a better chance of recalling the details of each conversation. I can’t tell you how many times people testify to a series of conversations, running several conversations into one narrative. If you can’t remember the details, your “Business Record” will stand in for your testimony. The facts in your notes are given great weight in a courtroom hearing.
     Even if you’re not running a business note taking is a valuable strategy to employ. For example, the I.R.S. says if they gave you wrong information, BUT you keep proper records, penalties would not be imposed on you.   BUT you have the burden of providing the name of the I.R. S. employee you spoke with. I.R. S. penalties are brutal, so it’s worth it to keep track.
     In everyday life you can employ the same strategy. Write on the pre printed form at the auto mechanic’s. Jot down notes or phrases on what you talked about - what they promised to do for you for this “Estimate”. When you’re talking to your cell phone company about your bill, or services they are giving you, write it on the paperwork. If you don’t you’re sure to get “Who told you that. We don’t do that”. You can calmly reply, “Suzanne [employee number] told me that on Monday April 27, 2009 at 5:15 PM, I have the notes.” This puts you in the cat bird seat.

Studio City Attorney, Joann Deutch • (818) 753-9922