Act Natural When Contemplating Litigation
Changing the facts slightly to preserve confidentiality, I received a call from someone who had paid a company to create a website. When the website was up and running, the caller discovered that the web design company had, in essence, left a backdoor open. Someone with a little computer knowledge could have made changes to the website. The caller was outraged, saying that if this error had been discovered and exploited, it could have cost his company millions.
I asked if he had notified the company of the problem so it could be corrected. He told me he had not, because he wanted to keep the problem in place until he filed a lawsuit. In other words, he was leaving his company’s website vulnerable to vandals in order to preserve a possible action, rather than to fix the problem and avoid any damages. That’s a crazy case of the tail wagging the dog.
That mentality is wrong on a couple of levels. It shows that the caller is not as interested in correcting the problem as he is in getting money. Consider how a jury would react. He was so upset by the negligence of the web design company that he is asking us to give him millions, but he did nothing to fix the problem?
Also, it fails to recognize the need for actual damages. This is a simple concept that sometimes alludes even my fellow attorneys. If there are no damages, then it’s no harm no foul. If no one found the open door, then how was the caller harmed? He may have a small case for breach of contract since the designer didn’t create a proper website, but with no damages there is no actionable negligence.
Don’t act in some artificial manner to “preserve” an action. When this caller discovered the open door, the natural thing to do would be to call the company and ask that the door be closed. To leave the door open while seeking out legal representation is a very unnatural reaction. By all means, he could take a few minutes to save some screen shots as evidence in case legal action becomes necessary, but acting intentionally to leave the problem in place or even to create damages where none exist, will hurt the case far more than it helps.
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