Want your closing argument to impactful and memorable?  This article provides recommendations and tactics for a successful closing argument.

What Should be Included in the Closing Argument?

Use Technology. If you don’t know how to operate the court room projector/monitor, or how to use your lap top in the court room, go spend a few hours and learn those mechanics.  We live in a technology driven, instant gratification society that expects you to present information and evidence in an informative and quasi-entertainment manner.  Most Americans can’t spend ten minutes without checking Facebook or Twitter.  Do you think these same people are going to listen to your boring tirade for forty-five minutes.

Make it Memorable.  Begin and end with emotion.  Jurors often remember the first and last things that they heard.  Your beginning and ending sentences/phrases should be memorable.  Appeal to the emotions of the jury, if the case warrants an emotional response.  End the summation with strong closing remarks.

Reference the Facts and all Inferences Related to the Facts. It doesn’t get more basic than arguing the facts that came into evidence during the course of the trial.  Go through the evidence received through the witnesses and the documents.  Focus on the facts that help your position.  Focus on your star witness and the segment of testimony that makes your case.  You should also focus on the deductions and inferences that the jury should take from the evidence.  Stay within the evidentiary boundaries and do not argue facts outside of the record.

Reference Specific Evidence.  You should review key pieces of evidence.  Include documents, photographs, expert testimony, and witness testimony.  You can’t review everything that a witness said.  Be careful not to repeat all of the chronological events of the trial.  Hit the testimony highlights and the “smoking gun” phrases that establish your case.  Consider quoting the testimony during closing argument with a pull quote (displayed on a projector/monitor ).  If you have a great document, put it on screen and point out the important language to the jury.  Many people are visual learners and the jury will likely respond better if they can make a visual connection to the evidence.  Finally, if certain exhibits were admitted into evidence that help prove your case, tell the jurors that they have a right to examine the exhibits during their deliberations.

Expose the Credibility of the Witnesses.  Often, the jurors will form opinions about the credibility of each witness that testified at the trial.  As an advocate, you should help them along with their subjective opinions. Do not waste this opportunity to point out any bias, prejudice, interestedness, rudeness, or unreasonableness displayed by each witness.  Be careful not to provide your opinion about the credibility of a witness.  Any criticism or glorification of a witness should be based on the facts and the evidence.

Continue with the Theme of the Case.  Discuss the continuing theme of the case.  The theme began during voir dire.  For instance, assume the case theme is: “This is a case about how Paul Payne refuses to honor his obligations.” The closing argument should focus on how the defendant continually breached the contract and lied to the plaintiff.  Discuss the theme and remind the jury how the theme was established during opening statement and how the theme proceeded throughout the course of the trial. 

Continue to Educate the Jury.  This is your last chance for the jury to adopt your theory/view/position as their own.  During deliberations, you want the jury to argue their beliefs, which are in essence, your beliefs.

Walk Through the Jury Charge.  It is best to walk the jurors through the Jury Charge.  Ask the jurors to place the Jury Charge in front of them.  If the jurors do not have the Jury Charge in front of them, use a projector/monitor to display the Jury Charge during closing argument.  Address each question and provide an answer to each and every question in the Jury Charge.

Things to Avoid.  There are a few areas that you should avoid during closing argument, as follows:

1. Don’t Bore the Jury.  Use technology and be persuasive.  Be creative and entertaining.  Focus on a style that is not boring.
2. Don’t Embellish the Evidence.  Overstating the evidence and/or lying about the evidence presented can put you in a bad spot.  Stick to the evidence that was admitted by the court.
3. Don’t be Unprepared.  Write your closing argument before trial.  Modify your outline as the trial progresses.  Don’t wing it at the last second.  Don’t read from a script.  Practice your closing argument before trial starts.  Closing argument is not the time for the first rehearsal.  Practice to performance

Length and Style Tactics.

Time Limits.  I have been in different trials where the judge gives each side the following: (1) 20 minutes to “sum up” the case; (2) so many minutes per day of testimony; (3) an agreed amount of time between the parties; and (4) an unlimited amount of time.  The court will likely take the following factors into consideration regarding the time limits for closing argument: (1) the number of witnesses, (2) the length of the trial, (3) the evidence presented at the trial, (4) the complexity of the testimony and evidence, (5) the length of the jury charge, (6) the complexity of the issues, and (7) the amount of damages.  It is best to find out before trial how much time you will receive for closing argument.

Other Restrictions.  Does the court limit: (1) the style of the closing, (2) the location of delivery of the closing (lectern, counsel table, proximity to the jury box), or (3) use of demonstrative aids and exhibits?  It is best to find out before trial what type of restrictions will be applicable to closing argument.

Stylistic Considerations.  Creativity is key.  Think about using literature, novels, speeches, music, movies, theatre, and television as a basis for style.  Be energetic.  Communicate your belief in the theme of the case.  Tell the story.  Project trust, competence, humanity, and comfort.  Which rhetorical devices should be used?  How much body langue should be used?  What volume level should be used?  Fast or slow delivery? Think about pronunciation and articulation.  At the end of the day, you must settle on a style that is comfortable and appropriate for the theme of the case.

Have the jurors answer the question in their own minds.  Present the facts in a certain manner that allows the jurors to take ownership of the conclusions that they reach regarding the evidence.  It is effective when the jurors can answer the question in their own minds.

Technology.  How much technology should be used?  Is the closing too tech heavy?  Are too many exhibits, pull quotes, and pictures being used?  Think objectively about the use of technology.

Use of Pace and Voice Inflection to Emphasize Key Elements.

Lower your voice.  Try lowering your voice to a point where the jurors have to listen closely to what you are saying.  Not too soft that they cannot hear you, but not too loud, as if from a megaphone.  This style can be very dramatic and persuasive when used in moderation.

Pause.  Try pausing after making a good point to dramatically underscore a specific point or theme.  Ask a rhetorical question, let the question sink in, and then wait three to four seconds before you answer the question.  It is important for the jurors to reach their own answers.  Thus, you will agree with the answers of the jurors after you provide your answer.  Moreover, a brief pause can also be used to evoke the undivided attention of the jurors before making a specific point.

Group Rhetoric.  Don’t over use the words “I” or “You.”  Argue the summation as if you are a member of the jury.  Rather than saying, “You know what Paul Payne said about that contract,” say “We know what Paul Payne said about that contract.”  Rather than saying, “I saw the way Tom Thief rolled his eyes during that question,” say “We saw the way Tom Thief rolled his eyes during that question.”  Using words like “We” and “Us” empowers the jury and allows you to make yourself a part of their group.  However, don’t overuse “We” and “Us” to the point of grammatical absurdity.

Phraseology.  Common phrases may help drive home an important point or connect the jurors to your theme.  You can surf the web for American phrases, biblical phrases and philosophical phrases to use during closing argument.  For instance, using the phrase “Does that make sense?” allows you to put testimony and/or evidence in a certain light wherein you can allow the jurors to either reject or accept such testimony or evidence.  Also, using phrases like “Don’t you know” and “Don’t you think” allow you to comment on opposing counsel’s failure to prove a particular element or present a piece of evidence.  “Don’t you think you would have been shown the email if it actually existed?”

Addressing the Weak Points of the Case.

Don’t ignore the negative facts!  Bad facts are likely to come to light at trial.  You must embrace the bad facts and address the weaknesses of the case.  Be prepared to explain the bad facts, which will: (1) defuse the arguments of opposing counsel, and (2) provide additional support for the credibility of your theme.  Tell the jury why your client wins, even though negative facts and issues have come to light.

This article is for informational purposes only and is not intended to be a substitute for legal advice.  Specific questions and circumstances regarding the issues addressed in this article should be individually discussed with legal counsel.

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These seven easy steps will put you on the path toward a successful real estate closing.

Step One – When and Where is the Closing?

Communicate with your lender, real estate agent and/or title company about the timing of the real property closing (the “Closing”). Verify the actual date and location of the Closing. The closing may occur at the title company, a real estate agent’s office or at an attorney’s office. Arrive at the Closing on time!

Step Two – Bring Identification and Good Funds to the Closing.

Bring a valid government issued photo identification card to the Closing. Some lenders may require a second form of photo identification with your legal name on it. Ask some questions about identification prior to arriving at the Closing. Generally, the title company will require the parties to tender good funds to the Closing. That means you need to bring a cashier’s check or arrange for a wire transfer. Do not bring a personal check to the Closing. Sometimes, fees and expense can change prior to the Closing. Ask questions and be proactive about the amount of funds needed at the Closing.

Step Three – Review the Settlement Statement (HUD-1) before the Closing.

Before the Closing, request a copy of the preliminary Settlement Statement (HUD-1) from the title company or the lender. Carefully review the settlement charges, the totals, and amounts necessary to close the transaction. All fees and expenses should listed on the Settlement Statement. Examine the Settlement Statement for errors and completeness. If the Settlement Statement contains errors, or if you have questions about the content, contact the title company, agent, broker, attorney, or lender.

Step Four – Bring Your Documents to the Closing.

At the Closing, make sure that you arrive with copies of the real estate contract, Settlement Statement, and any other documents that you have received prior to Closing. It is always a good idea to compare the documents that you receive prior to Closing with the documents that you are expected to execute at the Closing. (Generally, you will not see the loan documents until the day of the Closing). If any of the documents have changed, ask for clarification regarding the necessity for the change.

Step Five – Review the Documents Prior to Execution.

You will be expected to execute multiple documents at the Closing. Spend some time reading what you are signing. It is important to check for errors and modifications contained in loan documents, title documents and affidavits. Verify that names are spelled correctly and that the property address is correct. Verify that the mortgage interest rate is correct and the loan amount is accurate. Don’t let a typographical or material error cause you future problems because you failed to read the documents at the Closing.

Step Six – Obtain a Copy of the Documents.

After you have finished executing the documents at the Closing, ask for a copy of everything that you signed. Often, the title company will provide you with a thumb drive containing a digital copy of the documents or a paper copy of the documents. Make sure that the signatures of the buyer and the seller appear in your copy of the documents. If a party is required to execute the Closing documents at a later date, make sure that you receive the signature(s) so that you can add the additional signatures to your copy. Finally, verify that the title company has your address in case additional documents are sent for your signature.

Step Seven – Documents Received After Closing.

After the Closing, the county clerk will record the title documents executed at the Closing. The recordation process may take a few weeks. After recordation, the buyer should receive a copy of the recorded warranty deed, recorded deed of trust, title insurance policy, and an owner’s insurance policy. After recordation, the seller will receive a release of lien and evidence of the payoff of the loan from the former lender. You should calendar the date on which you expect to receive these items after recordation.

This article is for informational purposes only and is not intended to be a substitute for legal advice. Specific questions and circumstances regarding the issues addressed in this article should be individually discussed with legal counsel.

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It’s all about the power of choice.  Communicating your choices, wishes and desires to your family and friends, while you are still living, will alleviate problems after your death.  You have worked hard to accumulate certain assets and you should communicate how those assets will be distributed.  By creating a Will and an estate plan, you can choose how the world will deal with your estate.  If you don’t create a Will, the law has established certain ways of dividing your estate, which may or may not be consistent with your choices, wishes and desires.  The following items should be reviewed and considered when preparing and reviewing an estate plan:

Estate Management:  Who will monitor and administer my estate?  Who will serve as my personal representative?  Who will distribute my assets and pay my debts?

Asset Distribution:  How will my assets be distributed?  Who will receive my assets?  How should my real estate be divided?  Who gets my classic automobile?  How will my stock be divided?

Debt:  What creditors are owed?  How will these debts affect my estate and my family?

Trusts:  Should I create a trust?  Who will serve as the trustee?  Who should I name as beneficiaries?  What are my goals in establishing the trust?

Children:  Who will care for my children?  Who do I trust to serve as a guardian?  What qualifications should the guardian have?

Taxes:  Will I owe estate taxes?  How can I lower my tax burden before I die?

Powers of Attorney/Medical Directives:  Do I need to have someone make financial and medical decision on my behalf?  Who should serve in this capacity?  Who can I trust to make important medical and financial decisions?

Preparing a Will and an estate plan will allow you to think through all of the relevant issues, in a slow and methodical manner.  If you wait wait until there is a crisis, a health scare, or some other type of adverse event, you may overlook important aspects of your estate which may be critical to your family.  Even if you currently have a Will or an estate plan, a change in family circumstances, a change in the law, or the passage of time may require you to update your choices, wishes and desires.  Allowing legal counsel to review your current estate plan is always a prudent decision.

This article is for informational purposes only and is not intended to be a substitute for legal advice. Specific questions and circumstances regarding the issues addressed in this article should be individually discussed with legal counsel.

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The Texas superintendent evaluation process assists both the superintendent and school board with clarifying goals and expectations for the school district.  The success of any school district in fulfilling its mission to educate children depends on the ability of the superintendent and board of trustees to jointly establish and attain the goals and objectives of the district. The superintendent and the board must operate as a team in establishing the goals and objectives of the district. An integral part of that teamwork is the recognition of the superintendent’s role as chief executive officer of the district. See Tex.Educ.Code §11.201(a). Under state law, the superintendent has broad responsibilities and ultimate accountability for all district operations. See Tex.Educ.Code §11.201(d).

An effective means of providing focus and direction to the district leadership team is a well-conceptualized and well-developed evaluation process.  Under Texas law, a school district’s board of trustees is required to conduct an annual written evaluation of the superintendent’s performance. Tex.Educ.Code §21.354(c). Pursuant to section 21.345(d) of the Texas Education Code, “funds of a school district may not be used to pay an administrator who has not been appraised under this section in the preceding 15 months.” Tex.Educ.Code §21.345(d).  The superintendent’s evaluation process including the criteria for evaluation, the timeline and the instrument must be conducted through the use of a written evaluation instrument. The evaluation instrument should be cooperatively developed and reviewed in advance of the evaluation so that the district, the board and the superintendent can prepare for and benefit from the evaluation process. The Texas Administrative Code establishes minimum criteria for the evaluation process. 19 Tex.Admin.Code §150.1022. Those criteria, called “domains and descriptors”, are:

• Instructional management
• School or organization morale
• School or organization improvement
• Personnel management
• Management of administrative, fiscal and facilities functions
• Student management
• School or community relations
• Professional growth and development
• Academic excellence indicators and campus performance objectives
• School board relations

A district may utilize either the commissioner-recommended appraisal process and performance criteria for its superintendent’s formal evaluation or it may develop an alternative process and performance criteria in accordance with section 21.354 of the Texas Education Code. Id.; See also Tex.Educ.Code §21.354(c). However, whether the district choose to use the commissioner-recommended appraisal process or develops its own, the superintendent’s formal evaluation should mirror the goals, objectives and expectations of the district.

The domains and descriptors used in a specific district’s formal appraisal will typically be found in its board policy BJCD (EXHIBIT). The Texas Association of School Boards (TASB) has promulgated a master evaluation instrument which is used by many districts in Texas. It is an excellent resource and may be found on the TASB website. By policy the board should adopt procedures outlining the superintendent’s evaluation cycle. This article discusses the various phases of the superintendent’s annual evaluation cycle. The evaluation cycle is divided into five phases. This article discusses the important elements necessary for the success of each phase in building and conducting the superintendent’s evaluation process.

Phase 1: May, June, and July – Annual Conference to Set Goals and Expectations

The superintendent and the board are required to annually participate together in a team-building session. 19 Tex. Admin. Code §61.1(b)(2). The purpose of this session is to enhance the effectiveness of the superintendent and the board in working together toward the common purpose of the well-being of the children in their district. Id. This form of training also provides for the assessment and identification of continuing education needs for both superintendent and the board. Id; See also 19 Tex. Admin. Code §150.1022. Successful board/superintendent teams elect to conduct the team-building training in conjunction with the annual conference to set goals and objectives for the district and the superintendent. The coordination of these activities provides the opportunity for the development of shared goals of the superintendent and the board for the district.   The superintendent and the board are required to develop and identify the responsibilities to be carried out by the superintendent/board team. See Tex.Educ.Code §11.201(d)(14) .

If the evaluation process is an open, results-based format, a superintendent and board action plan should be developed and prepared, utilizing, at least in part, those performance domains and descriptors mandated by Texas law. See, e.g., 19 Tex. Admin. Code §150.1021. The action plan should include some agreed-upon prioritization of goals and objectives for the district and superintendent, with the delineation of maintenance and/or modifications of current goals and any addition of new goals and objectives. Along with the development of the action plan, as with any kind of plan development, it is critical that consideration be given to the resources necessary for the accomplishment of the specified strategies for meeting the goals and objectives for the district.

Another critical component in this phase of the evaluation cycle is the delineation of roles and expectations. In an effective evaluation process, performance standards and expectations are explicit and fully understood by all members of the board and by the superintendent. Annually, an examination should be conducted of the district’s current qualifications and duties for the superintendent. A district’s qualifications and duties for the superintendent are typically found in the district’s board policies BJA (LEGAL) and BJA (LOCAL). In connection with this process, the qualifications and duties in BJA (LEGAL) and BJA (LOCAL) should be reviewed jointly by the board and superintendent at least annually to determine whether they meet the board’s current expectations for the superintendent. If not, these board policies should be revised so that there is a clear understanding of the superintendent’s duties by both the board and the superintendent.

At the same time, an examination should be conducted of the current district improvement plan, and the previously utilized superintendent evaluation process and appraisal instrument. Following a comprehensive examination of these critical aspects of the evaluation process and the analysis of district student performance indicators, written goals and objectives should be developed collaboratively by the board and superintendent for the district and the superintendent.

The use of a trained and experienced facilitator is recommended for both the team-building training and the planning and development of the superintendent’s evaluation process for superintendent evaluation. Planning should include consideration of the desired outcomes and the tools, activities, and processes that will be used to facilitate the active involvement of the superintendent and the members of the board.

Phase 2: August and September – Modify and Adopt Campus and District Plans

Successful superintendents enhance the instructional effectiveness of a school district through a concerted focus on student performance and on the continual improvement of curriculum and instruction. The development and implementation of systems designed to formatively assess district curriculum and instruction are critical to the improvement process. Superintendents should focus on curriculum and instruction through the collaborative development, implementation, and support of district-wide goals and the frequent articulation and documentation of these goals. The information in the district’s annual report describing the educational performance of the district is required by law to be a primary consideration in evaluating the superintendent. See Tex.Educ.Code §39.054.

Phase 3: October and November – Conduct Formative Evaluation           

Formative evaluation is an ongoing process of collecting documentation related to the goals, objectives for the district and superintendent, and expectations previously established by the board and superintendent. Periodically, the board and the superintendent should review information collected and compiled from formative evaluation processes and the board should provide feedback to the superintendent. It is recommended that the board president and the superintendent compile the information gathered from formative processes into a single report to be shared with all board members. This is not the time to draw final conclusions regarding the superintendent’s evaluation or actions on the superintendent’s contract. The primary purpose of this informal conference is to check progress, problem solve, and redefine implementation of the goals and objectives for the district and superintendent as necessary.

In the event the board modifies the evaluation instrument, format and/or procedure and such modifications require new or different goals, objectives and expectations, the superintendent should be given a reasonable amount of time to demonstrate performance prior to evaluation. This is an important and necessary safeguard that should be negotiated into the superintendent’s contract.    

Phase 4: December and January- Annual Evaluation Conference for Actions on Superintendent’s Contract

It is difficult for board members to recall or be aware of all aspects of the superintendent’s performance throughout the year. It is critical, therefore, that an accountability report be prepared by the superintendent and presented to the board by superintendent prior to the completion of the superintendent evaluation process so that the superintendent has the opportunity to share performance data for each criterion in the superintendent’s evaluation process with the board. This should be a very comprehensive report that details from the superintendent’s perspective the status of the district and the superintendent reaching their respective goals and objectives and, if not, why not and when. Following this presentation, board members should be given time to ask for clarification concerning any aspect of the information shared in the superintendent’s report.

It is imperative to the district’s improvement that the superintendent be fully empowered by the board to make changes and to carry out strategies designed jointly by the superintendent and the board to achieve the district’s goals, objectives and expectations. The superintendent should be and is accountable for the district achieving its goals, objectives and expectations. Therefor, an important task in improving the evaluation process is to assess the statutory and contractual authority the superintendent actually has to control the resources necessary to do so.

A carefully drafted employment contract between the superintendent and the district will contain specific provisions setting forth the collaborative process between the board and the superintendent in designing the evaluation instrument and the formal evaluation. Most superintendents’ contracts in Texas contain these specific provisions.

The superintendent must have the authority to perform the duties required of the superintendent. The superintendent’s duties, as set forth in Tex.Educ.Code §11.201(d), in board policies BJA (LEGAL) and BJA (LOCAL), and in the superintendent’s contract, are extensive. The members of the board and particularly new board members must be reminded annually of the explicit roles and responsibilities of the superintendent to lead and manage operations of the district versus the board’s role to set policy and provide the resources for the district to be successful. If the board is to reasonably hold the superintendent accountable for the outcome of goals, objectives, and expectations for the district, the board must provide the superintendent the latitude and authority as required by statute, policy and the superintendent’s contract to manage the district and provide the superintendent and the district the appropriate resources to realistically meet the goals, objectives, and expectations set by the board for the district and the superintendent.

The board and the superintendent are jointly responsible for achieving results. An assessment of the extent to which the board fulfilled its roles and responsibilities will be necessary to render a complete and accurate conclusion about the district’s performance.

 The superintendent is the chief executive officer for the district. See Tex.Educ.Code §11.201(a). As a result, the formal evaluation of the superintendent should mirror the goals, objectives and expectations of the district. If the board fails to recognize this important point, the success of the formal evaluation is likely to be seriously compromised.  

The formal evaluation should be conducted in a collaborative manner between all members of the board. The board should avoid any use of averages in completing the evaluation. Texas law provides no authority allowing the board to average scores on the instrument used for the superintendent’s evaluation. Consequently, strategies should be utilized by the board president to generate an evaluation instrument that reflects a consensus of the entire board. The board should vote on each component of the superintendent’s evaluation with the majority vote of the board prevailing on each component. The final evaluation should reflect the opinion of the majority of the board. No individual board member’s comments should be part of the evaluation unless, by a majority vote, the board determines that that comment should be included in the evaluation.

Complete agreement between the board and the superintendent regarding evaluation results is preferable; however, disagreements may occur. Should a disagreement exist between the superintendent and the board on the results of the evaluation, the superintendent is entitled by law to submit a written response to the final appraisal to be attached to the final evaluation in the superintendent’s personnel file. Tex. Educ.Code §21.352.

A superintendent is strongly encouraged to use this written response for purposes of informing the board of any failure(s) to follow state law, board policy(ies), provisions of the superintendent’s contract or the requirements of the evaluation process adopted by the board. Furthermore, the written response is an opportunity for the superintendent to object to comments or ratings that are not factually based or are based on misinformation regarding the superintendent’s and/or the district’s performance.

The superintendent’s written response to the evaluation should include a formal request for the board to consider modifying the evaluation where appropriate, and if the evaluation is not modified, the written response should be attached to the evaluation in the superintendent’s personnel file.   Any written response or rebuttal must be submitted within ten (10) working days of receiving a written observation summary, a written summative annual evaluation report, or any other written documentation associated with the superintendent’s evaluation. 19 Tex.Admin. Code §150.1005. At the discretion of the board, the time to respond may be extended to fifteen (15) working days. Id.

Phase 5: February, March, and April – Conduct Formative Evaluation

Reports generated during this final phase of the evaluation cycle should be utilized to determine changes necessary in the district’s programs and practices during the last few months of the school year. Part of the evaluation cycle should be used in developing the budget for the next school year. The evaluative reports should also serve as a guide for campus and district planning for the next school year. In addition, results of the formative evaluation should be used in the following years Phase I of the evaluation cycle to develop revisions to existing goals and objectives for the district and superintendent.

Continual improvement and growth through constructive input from the board is critical for the superintendent to develop and have the skills and knowledge necessary to effectively lead today’s schools. Educational organizations are significantly more complex than ever before. The superintendent of the 21st century must be able to effectively respond to a diverse constituency; highly charged political issues; and increasing standards for students, teachers, and district performance among other issues. The most effective school leaders are those individuals who continually strive to improve their knowledge and understanding of the roles and responsibilities of the board and superintendent and improvement of their district.

Conclusion

The superintendent evaluation is unique in comparison to how other professional educators are evaluated. The superintendent’s evaluation can only be effective if board members and the superintendent have the knowledge and understanding of the legal, practical and political implications of the evaluation process. In that regard, the most effective evaluation processes are those that are cooperatively developed and implemented by the board and superintendent in advance of the evaluation so that the district, the board and the superintendent can prepare for and benefit from the evaluation process. The superintendent’s contract and district policies should detail the superintendent evaluation process with a foundational requirement for collaboration between the board and the superintendent in designing the evaluation process that clearly communicates in advance the board’s goals, objectives and expectations for the district and the superintendent.

This article is for informational purposes only and is not intended to be a substitute for legal advice. Specific questions and circumstances regarding the issues addressed in this article should be individually discussed with legal counsel.

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1. How Much is Really Owed?

Some companies amass very large receivables over a short period of time.  Some companies perform multiple low cost services over a period of a year.  So how much is really owed?  Are there multiple invoices for multiple goods or services regarding this single debtor?  It is always best to take a macro view of the accounts receivable and the receivable history of the debtor.  Time may generate payment.

2. What are the Habits Regarding Receivables?

If you always allow ABC Company to pay on a ninety (90) day basis, then don’t get upset when the invoice isn’t paid in thirty (30) days.  If you always give Joe Smith a ten percent (10%) discount so that he will pay his bill, then don’t get mad when Joe continually asks for an offset.  Do you have bad habits regarding slow pays and offsets?  Don’t fall into the trap that many companies fall into – – I would rather have eighty percent (80%) of something rather than one hundred percent (100%) of nothing.  If you provide a good or service at a fair price, provide good customer service and are honest with your customers, don’t feel guilty for asking what is owed.  If you want to generate cash flow, you must crack down on your bad habits regarding receivables.

3. Have I Identified the Industry Customs and Personalities?

It is important to consider your relationship with the debtor, industry customs, business practices and business longevity. There are companies out that there that will not pay an account payable prior to one hundred twenty (120) days. There are individuals out there that will not pay an invoice unless a phone call is made after the invoice is sent out.  These facts must be considered.

4. What is the Strength of the Claim?

Look inwardly and discovery the weakest link in your claim.  Did full performance occur?  Did you provide substandard performance and are now expecting payment in full?  Is there a written contract?  Was there a verbal agreement?  Is a counterclaim likely?  Ask hard questions and get the answers before you get on the litigation path.  Don’t let your grandiose position in the industry blind you from the specific facts of this particular case.

5. What is the Financial Condition of the Debtor?

Has this debtor consistently paid its bills in the past?  Is this debtor encountering specific problems within a specific industry?  Has bankruptcy been filed or is about to be filed?  A debtor that has not paid a past due receivable may not want to pay or may not have the ability to pay.  Figure out if there is a nexus between the financial condition of the debtor and the unpaid receivable.  If the debtor is flush with cash and is ignoring your e-mails, then it may be time to ramp it up.  If the debtor is about to file bankruptcy in the next ninety (90) days, it may be best to refrain from accepting any money so that a preference action will not materialize in the future.  Remember, collection begins with communication and information.

6. What are the Costs?

What will the costs be?  If it costs a business $3,000 to collect a $4,000 debt, then the cost-benefit of the collection needs to be considered.  Principle costs money.  It is always easier to justify the expenditures on a $100,000 debt over a $5,000 debt. 

7. Resolution, When?

Will collection occur before or after a lawsuit is filed?  Can the litigation be resolved at summary judgment or is this case heading for trial?  Will resolution ever occur? Look down the long road and consult with counsel.

8. Have I Considered the Post-Judgment Reality?

Are there assets to attach?  Are there assets to garnish?  Will a writ of execution generate a result? Should you request that a receiver be appointed?  Will a turnover order help you recover assets?  What do you expect to find during post-judgment discovery? These questions need to be analyzed and answered before suit is filed. 

 This article is for informational purposes only and is not intended to be a substitute for legal advice. Specific questions and circumstances regarding the issues addressed in this article should be individually discussed with legal counsel.

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