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I am re-posting this entry from two years ago, because it is the time of year when employers hold holiday parties or open houses. It’s easy to get caught up in the spirit(s) of the season and to overdo it on the alcohol. Are you putting your firm at risk if an employee or guest drinks too much and causes an auto accident and injures himself or a third person? It depends (that catch-all lawyer answer).

There are a variety of options for employee parties, from providing the liquor yourself at the company premises, having a professional caterer on the premises, renting a function hall, or going to a bar or restaurant. Some of these are safer options than others.

The safest option is a bar or restaurant where the employees and guests are buying their own drinks (the employer could hand out bonus cash that day). Even if the company is picking up the tab, the risk is still low. The crucial issue is control of the liquor. If the restaurant wait staff is in control of serving, your risk of liability for an accident is low. Employers do not have a general duty to act as big brother or sister to employees, especially after work hours. That doesn’t mean that a manager should be forcing shots on employees, as even this safe option has logical limits.

Also generally safe would be to hire a professional caterer either at a function hall or your place of business. But there are a few more guidelines to follow. First, make sure that the caterer is reputable and that the staff has experience serving alcohol. Make sure that the caterer obtains the permits. Make sure that the caterer is properly insured, and get an indemnity agreement from the caterer. Also, find out the plan of service. For example, you would not want employees and guests to have free access to liquor; they must order drinks from trained staff which has the authority to refuse drinks to someone underage or visibly intoxicated. You also should not ignore if drinking is getting excessive, such as drinking games organized by an employee. Check with your own insurance agent to see what coverage you have if you do get sued (speaking with your insurance professional is always a good idea).

The biggest risk is when the employer provides the alcohol and serves the alcohol. This fully opens the door to liability if you over serve someone who causes an accident. Although this may be a money-saving option, I would advise against it. It’s very easy for employees to get carried away at these events, and you don’t want to be in a position of either being the wet blanket or worry about liability.

Of course, you should remind employees ahead of time to be responsible and to designate a driver. Better yet, if the company could possibly provide drivers or promise to reimburse cab fare, that’s all the better all the better. In addition to preventing liability, you should of course care about the well-being of employees and innocent third parties. You don’t want to be sued, and you don’t want your company name in the paper because your employee killed someone after a wild party. Also think about the devastating effect on morale if something happened.

A topic for another day is the risk of sexual harassment at firm parties (or even “date rape”, as was alleged in one case). I hope I have not taken all of the fun out of the holiday season. As always, the above is general information, not legal advice.

By Adam P. Whitney 617.338.7000

Fair warning, this is a self-indulgent off topic post. The end of the year is approaching, and I’m reflecting on my first nine months of starting my own law firm, which focuses on employment law and business litigation for private businesses.  Here’s what I have learned from nine months in business:

1. You can’t do it without good clients. Make them happy and they’ll make you happy. I intentionally made this the first item.  I want to take this opportunity to thank my clients, most of whom read this blog. I literally could not have done it without you.

2. You need trustworthy help. I’m talking about employees, colleagues, accountants, vendors, contractors, bankers, insurance agents, etc. Find good people to help you and return the favor by treating them fairly/paying them on time/referring them business/etc.

3. Word of mouth is still the best marketing, at least for lawyers. I’ve done almost no marketing other than networking with colleagues (and, I suppose, writing this blog). 98% of my business comes from repeat business and referrals and other word of mouth.  I’ve been steadily busy since starting, and I hired two employees and expanded my office space and equipment.

4. You must embrace the latest technology. Although there can be some time getting up to speed on new programs and ways of doing things, it’ll be well worth it in the long run. You may feel comfortable doing things the “old way,” but you will increasingly be at a disadvantage. Worse yet, people will laugh at you and make jokes about typewriters (we do this behind your back).

5. Running a business is hard work. Of course I knew that before, because most of my clients are businesses.  But you don’t really appreciate all the important things that business owners must routinely do that take you away from your core functions – get insurance, do payroll, pay taxes, accounting, pay bills, pay fees and dues, manage employees, deal with vendors – there are dozens of things. Unfortunately, this blog has suffered at times due to all of these demands.

6. Being a business owner is meaningful and rewarding. Private businesses keep the economy rolling and provide crucial services to the public. They don’t get bailouts or have teams of lobbyists in Congress. They operate both out of necessity to earn a living for the owners – capitalism at its purest – and because they love what they do. I’m proud to play a very small part in all that as a business owner, and by serving private businesses. It is also very rewarding to be “my own boss” and to do things the way I think that they should be done. I like to joke that “my boss is the best,” but I do hope that he gives me a few days off over the holidays.

By Adam P. Whitney, Law Office of Adam P. Whitney, 617.338.7000

This may seem obvious, but why do companies still do it? I’ll start with a few vents of my own of things that annoy me.

Jingles. I despise corny company jingles that are played repeatedly on the radio, tv and even Pandora. Although not technically a business, the worst offender is 1-877-kars-4kids. It may be a great cause, but why would I donate to you when your jingle grates me every ten minutes or so on the radio? Can’t you just talk to me without singing to me? It’s not just me, the jingle has been called the “most annoying sound in the world: http://www.youtube.com/watch?v=nEL8dGQj3I4. Google “I hate kars 4 kids” and you’ll see that many people are driven to drinking by the jingle.

Loyalty Cards. I Googled “I hate rewards cards” and had over 6 million hits, so I’m not alone. I credit Shaws for dropping these awful things. I will now shop there again. I won’t shop at CVS. Recently, Walgreens has gotten into the act, which is too bad because I like the new ‘greens in Downtown Boston. Doesn’t everyone hate to carry these cards (not to mention the invasion of privacy)? We are moving to simpler transactions, such as Level Up. Why do these stores compel us to dig through our wallets. And if you don’t carry them, you are being overcharged.

Maybe big businesses like CVS and Walgreens can get away with annoying their customers. Your private business probably cannot. As for service professionals, like lawyers, don’t nickel and dime your clients. Lawyers, for example, charge plenty per hour. Consider routine copies, faxes, phone calls and postage part of your overhead and not a profit center. And don’t talk down to your clients.

Do the opposite of annoying clients. Virtually all businesses would do well to be friendly and warm. This struck me this morning when I had my shoes shined at Colonial Shoe Repair near my office. The owner, Gret, introduced himself, asked my name and shook my hand. The shoe shine was great and at a fair price, but it was the personal attention that really sets Greg apart. I looked up the company, and not surprising Greg has a number of raving fans: http://www.yelp.com/biz/colonial-shoe-repair-boston

Is your business unwittingly biting the hands that feed it? Take a step back and try to put yourself in your client’s position. Ask your clients for feedback. Do random surveys. Ask what you are doing right or doing wrong. If you are just standing still and not listening and improving your product or services, your competitors will be passing you by.

By Adam P. Whitney

The customer is always right. This sentence has become a motto for businesses small and large all over the world. However, it seems that not all companies believe in this simple statement any more. In fact, the large companies seem to be falling into the ego trap. They are too big to fail. They have enough customers, and therefore can afford to be unpleasant to the small minority who dare query an issue or problem with the service they receive. It is commonplace now for people to complain about time spent on the phone waiting for an answer from a generic, anonymous call center, only to be fobbed off and sent on their way. That is not customer service. That is customer disservice. The examples are many and varied, but we all have memories of poor treatment received from large companies.

Remember Your Internal Customers

It isn’t all about the commercial customer, however. When you run a business, your customers are represented by many different people. Don’t forget your internal customers. These are your employees, your colleagues, the people who work on casual contracts to complete smaller jobs less frequently. The internal customer is just as important as the one who pays for your service or products. Think about it. Without people to do the work for you, things would not get done. You would flounder around, struggling to do several hundred jobs at once, and you would fail miserably in your business venture. You need people that will work for you, with professionalism and willingness to help out when they are needed. It takes more than just financial incentive to keep these people happy. But it also doesn’t take much more effort to show some appreciation. You could try offering corporate gifts to your customers, and you can find a wonderful selection at websites including http://www.solo.co.uk/. Here you can purchase items that are personalized for the people you wish to reward, and you can find some excellent value offers to keep your costs low.

Give Them Something Pretty

People love to receive gifts. It doesn’t matter what they are. As a customer of other companies large and small, think about the last time you received a free item. How did it make you feel? What was it? You probably received a meager pen emblazoned with the company details of the business you were buying from. It didn’t matter. They gave you something for free, and that was fantastic! Yes, you are aware that these pens are not limited items, and that they are probably sent out in their thousands to all the other small-fry customers like yourself. But that’s not important. The company made an effort to show that they care. They gave you a small token of their appreciation for you, the individual, and they also cleverly ensured that you would not forget about them any time soon. Your pen will be very useful on a daily basis, and you will see their logo every time you pick it up.

Small Beginnings Lead to Big Business

Of course, it takes a little more than material items to keep people happy. But offering free gifts to your customers and employees certainly goes a long way towards keeping their attention focused on your business as opposed to someone else. We are a magpie nation. We like pretty items, we enjoy tactile products, and things that we can collect and admire. It is human nature to appreciate things that we create, and you can bring this simple psychology into your business plan. Perhaps you could keep a selection of gifts specifically for your customers. You could mix it up a little, and send out pens, pencils, notepads, mugs, or even larger items depending on the importance of the individual customer to yourself and your business. Let’s face it, we are here for the money. The more they pay, the more you appreciate them. So reflect that in the gift that you offer. But don’t forget your smaller, less well known customers. They could become very important to you one day, and you do not want to lose them to your competitors. Be nice, be generous, and remember, treat people in the same way that you wish to be treated. Kindness, understanding, and appreciation will go a long way when building good business relationships.

Lawsuits happen. That’s true for any successful business, even if you take my litigation-avoidance advice in this blog. While you cannot prevent all lawsuits, there are steps you should take to minimize the damage and headache when the summons and complaint arrive at your office door. In fact, if you know that the lawsuit may be coming, you can do some of these things before you are served with the lawsuit.

First, train your office staff on how to deal with deputy sheriff’s and process servers who come calling. This may seem like a no-brainer, but companies get defaulted and pay large judgments because a receptionist put court papers in the circular file. You normally have only 20 days to respond to a lawsuit. Sometimes that time can be greatly reduced by a judge’s order, so it’s important that you get and read the documents right away. Conversely, if the suit papers are directed at an owner personally or an employee, there may not be any obligation to accept them, or to call the individual to the front to be served. Each situation is different, so discuss this with your lawyer.

Start making phone calls. You know I am going to tell you to call your lawyer asap. That’s not just self-serving. Your lawyer can advise you on what other steps to take. She can also quickly find out what is happening at the court by checking the docket, and can contact opposing counsel if need be. You should also notify your insurance carrier. You may have be pleasantly surprised to learn that you have some coverage. Keep in mind that your insurer may defend the case pursuant to a “reservation of rights.” This means it can try to disclaim coverage later, or it might only cover the costs of defense. In Massachusetts, this also means that you can pick your own lawyer rather than using the insurance carrier’s lawyer. Although some insurers are loathe to tell you this, when they defend under a reservation of rights in Massachusetts, you can pick your lawyer and the insurer will pay reasonable attorney’s fees.

Put your normal document destruction/retention policies on hold. You have an obligation to save relevant paper and electronic documents that may be related to the claims and defenses. In my experience, a missing document can be more problematic than an unfavorable document. The jury will always think that you intentionally destroyed a document and will, usually with the judge’s blessing, use it against you. It’s human nature to think that the missing document would be a lot more important than it really were if it were produced.

You and your attorney may want to start investigating the facts as soon as possible. There are certain strategies, within the bounds of ethics, to pin down certain witnesses before the other side obtains their depositions or otherwise speaks to them. I’m not going to give up all the tricks of the trade here.

Finally, come up with a strategy to defend the case. Lawsuits can sometimes be like a game of chess. If you and your attorney can think through the case from start to finish, predict your opponent’s moves, and plan your own moves and counter-moves, you’ll put yourself in a better position to win.

Don’t take a defeatist attitude.  Think of getting sued as part of the cost of doing business.  Approach it head on like any other business problem.  With some planning and some smarts, you may be able to minimize the distraction and damages.

By Adam P. Whitney