How to be proactive in a reactive world

(Note: This story appears in the July 2022 issue of ED Magazine)

The EXPO 2022 Legal Panel will help club owners and operators to avoid club-related litigation — and will inform them on what to do if a lawsuit arises.

Impactful court cases and wide-sweeping legal decisions have often been the subject of discussion at EXPO Legal Panels. But not every legal headache that club owners endure will relate to a U.S. Supreme Court case. Often times, it’s everyday situations — specifically, litigation relating to incidents within the club including slip and falls, assaults, dram shop/service of alcohol, etc. — that cause owners the most significant amount of legal difficulty. At EXPO 2022, our Legal Panel attorneys will offer tips on how to be proactive and avoid these situations, while also providing advice on how to handle litigation and depositions should a lawsuit arise.

The EXPO 2022 Legal Panel will feature attorneys Tyler Stuart and Brian Rawson of Texas-based Hartline Barger LLP, who are both very experienced in the areas of litigation and trial law. At this year’s EXPO, they’ll utilize actual video of events that led to litigation and discuss what clubs could have done — or shouldn’t have done — when faced with one of the aforementioned situations.

We had the chance to ask Stuart and Rawson some questions in advance to provide a preview of their EXPO 2022 Legal Panel: “Being proactive in a reactive world.

ED: What are some of the most common types of lawsuits that clubs face?

STUART/RAWSON: In our experience, the most common types of lawsuits clubs face (specifically in Texas) are:

(1) Dram Shop claims – When a club serves alcohol to a patron who was obviously intoxicated to the extent that he was a clear danger to himself and others, and that patron thereafter injures himself or others because of his intoxication (e.g. drunk driving), the club can be liable for that improper service.

(2) Premises liability claims based on third-party criminal conduct – When an individual unassociated with the club commits a criminal act, typically an assault, towards a club patron, the club could be held liable.

(3) Assault claims against club employees.

(4) Slip and fall claims.

ED: What are some of the biggest reasons for these lawsuits? Is it just ‘bad luck,’ or is there negligence on the part of managers and employees that leads to the ‘accidents’ (and subsequent lawsuits)?

STUART/RAWSON: It is difficult to identify any specific reason why a lawsuit is filed. Each lawsuit is unique. A lawsuit could have been filed because the plaintiff is opportunistic and looking for a payday without considering the merits of his claim. In fact, we have seen plaintiffs file claims against clubs we represent merely because the clubs are perceived as having the deepest pockets of any defendant.

But, a lawsuit could have been filed because a wrong was actually committed by a club employee. Whether it is serving alcohol to a patron while distracted thus missing signs of intoxication, or being overly-aggressive with a patron who mouths off, or ignoring a puddle of water sitting in the middle of the hallway which eventually causes a patron to slip and fall, employees make mistakes or bad choices which can result in a lawsuit.

Strong management can help avoid incidents that would typically result in lawsuits. A strong management team can provide proper training on the types of situations that could result in injuries and eventual lawsuits, which should include providing examples of actual events at the club which resulted in lawsuits. — Stuart & Rawson

ED: What are some of the steps clubs can/should take to avoid some of these common lawsuits? Staff meetings, proper training, watching tutorial videos (perhaps of actual events that led to lawsuits), all of the above?

STUART/RAWSON: It starts at the top. In our experience, strong management can help avoid incidents that would typically result in lawsuits. A strong management team can (1) provide proper training on the types of situations that could result in injuries and eventual lawsuits, which should include providing examples of actual events at the club
which resulted in lawsuits, (2) provide clear guidelines and directions to employees on how to handle those typical situations, and (3) monitor and appropriately respond to those situations before they get out of hand.

ED: In regard to the lawsuits themselves, what steps should clubs take immediately if they are sued?

STUART/RAWSON: Once sued, the club should immediately notify and retain outside counsel. There are deadlines associated with a lawsuit and retaining outside counsel early in the process can make sure the club appropriately responds to the lawsuit. Investigation of the lawsuit’s allegations should also begin immediately, and that investigation should be led by outside counsel. Having outside counsel experienced in the type of lawsuit run the investigation is beneficial not only because the attorney knows what to look for, but any work performed by that attorney is privileged and protected.

ED: What advice can you share in regard to depositions, do’s and don’ts, etc.?

STUART/RAWSON: When preparing anyone for a deposition, we offer the following advice:

– Tell the truth.
– Do not guess or speculate.
– Only answer the question that is asked.
– Do not offer unnecessary details or over explain.
– Do not joke, become sarcastic, or act in any way that could be interpreted as disrespectful.
– Only speak when asked a question.
– Keep your answers short.
– Do not get angry or argumentative.
– Listen to the entire question.
– Maintain eye contact and do not fidget. Your facial expressions and body language reveal more than you think.

ED: What are some of the most common mistakes clubs may make when being sued, and how they handle the subsequent lawsuit.

STUART/RAWSON: One of the most common mistakes is for a club’s employees to treat a lawsuit as a nuisance intruding on their time. That careless attitude can result in employees discarding important evidence because they do not understand its importance, ignoring requests from the club’s attorney for documents/information to comply with discovery obligations which can result in sanctions against the club, and refusing to take depositions seriously which can lead to damaging testimony. A club’s owners and managers must make sure the employees know that the lawsuit is important and should be treated as such.

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