The Defense Rests

The Defense Rests

Five proactive reasons to consult your attorney that can keep you out of the courtroom.

September 27, 2019

Adopting a proactive rather than a reactive approach to some basic legal issues as they pertain to your snow and ice management operation can grant you the control to overcome future legal problems.

“If you implement policy to prevent lawsuits than you maintain control over those things,” says Justine Baakman, an associate in the Philadelphia and New Jersey offices of Freeman Mathis and Gary LLP. “You can take steps to reduce your risk of having a lawsuit rather than getting a lawsuit in the mail… From a practical perspective, having control over [a lawsuit] is recommended.”

Implementing these suggestions on the front end of your snow operations can reduce the risk of getting sued, keep you out of the courtroom, and safeguard you from racking up expensive legal fees.

Get an update on the legal landscape
It's safe to say the majority of snow contractors don't keep up to date on legal trends – such as indemnification issues, contract trends, and trial jury attitudes – in the states they’re doing business in. Your attorney can provide a concise view of the legal landscape and how these trends pertain to your snow and ice management operations.

“For example, your attorney can tell you if the courts are looking more favorably on this type of language in a particular contract and are not looking favorably at this type of language,” Baakman says. “Then you can go and change the language in your contracts to reflect what the courts are looking at favorably."

Consult your attorney on how technology can aid in lawsuit prevention
High tech and highly affordable digital technology has benefited the professional snow and ice management industry over the last decade. Digital images taken with a cell phone provide accurate details of preseason and post-event property conditions. Likewise, GPS technology provides an accurate accounting of checking in and checking out of client properties during a winter event. And digital record  keeping and storage alleviates the risk of losing or mismanaging physical paper formats, such as hand-written event documentation.

“From my end, I’m seeing juries who expect us to produce these types of [digital] documents,” Baakman says. “And if you can’t produce them, then there is a negative inference that you’re potentially facing.

“An attorney can advise you on how technology can aid your business and how technology can prevent you from going down the path of having to defend against a frivolous lawsuit,” she adds.

Evaluate training and hiring guidelines
Often, the individual who closes the winter services contract isn’t the same individual who is onsite doing the work. Contractors must make sure all employees and service providers understand what the contract requires.

This starts with making sure employees are adequately trained and understand exactly what the contract requires of them, the document retention policies associated with the contract, and any technology associated with snow and ice management.

With regard to hiring, an attorney can guide a contractor on the due diligence and appropriateness of complicated issues like conducting background checks, investigating driving records, and requiring and/or following up on character references.

“We want to make sure snow contractors are doing their due diligence to ensure they’ve hired the appropriate employees to work on [a client’s] site,” Baakman says. “I’ve had clients ask me to review their employment application to see if they’ve covered all of the areas they need to cover for various positions.”

Lastly, it is just as important to have an appropriate system in place to reprimand employees if they fail to follow these guidelines.

“Often times, if you have policies in place and no one enforce them, then everyone learns that they don’t necessarily have to follow those policies,” Baakman says, adding it leaves the company vulnerable to future legal problems.

Evaluate your employee handbook
First and foremost, everyone should have a formal employee handbook. If not, your attorney can provide a template handbook and work with you to navigate the particular details that apply to your scope of business.

“This doesn’t have to be a daunting task,” Baakman says. “Templates are available from your attorney to get you started.”

Your employee handbook should reflect the legal peculiarities of each market that you’re providing winter services in because what’s true in one state may not necessarily be the same in a neighboring state.

“You want to make sure for the particular market you’re in, the employee handbook that applies to that market is appropriate,” Baakman says. “Make sure the states you’re operating in allow the policies outlined in your handbook.”

Likewise, make sure your employees have the appropriate training that coincides with items spelled out in the employee handbook.

“For example, if your employee is going to be issued an email address make sure they’re aware of potential data breach issues and that you’re implementing cyber security issues,” Baakman says.

Review contracts
Every two to three years contractors should have their attorney review their winter service contract templates before they’re sent to clients and service providers.

“You need to make sure the contract language is appropriate for the various markets that you might be in, which might include some legal updates,” Baakman says.

And if you receive contracts that the property owner/manager want you to use, have your attorney review them to ensure they’re up to date and don’t leave you vulnerable to potential future litigation.

“An attorney can advise you on the [relevant legal issues] they’ve seen in the last year and are seeing this year in property owner/manager contracts that you need to be aware of,” Baakman says. “It may require a phrase taken out [of the service contract language] or a sentence changed because it will be better for you.”

Mike Zawacki is editor of Snow Magazine.