October 4, 2011
A lot of companies—especially tech startups with no spare funds—avoid lawyers and lawsuits at all costs. But sometimes they can’t.
Inevitably, some companies are caught in a legal dispute and don’t hire a law firm until it’s too late and they’ve made some tactical mistakes. For others, once the lawyer is on board and working the problem, the relationship sours quickly. This second situation may lead to a gangrene lawyer problem: the cost and quality of the legal advice received makes the decision-makers feel like they are left with a terrible choice between letting gangrene (i.e., some legal problem) spread and cutting an infected leg off. (Gangrene causes body tissue to die and can be a life-threatening condition. I know this because Wiki told me so, and Wiki doesn’t lie. It’s the Oracle of the 21st Century.)
I get it. I don’t like working with a lot of lawyers too. They can be surly and unreasonable, and some use litigation tactics that demonstrate that they are essentially ignoring their client’s business interests. Sometimes, I wonder if the clients have any idea what their lawyers are up to.
Never forget that if you are paying a lawyer by the hour, this is an incentive for them to escalate a dispute rather than broker an immediate business solution. You need to be able to trust that they have your business interests at heart.
So here are three tips to help you avoid gangrene lawyers:
1. Get to know their negotiation and litigation philosophies.
Ask around. Are they known as a junkyard bulldog that goes for the jugular, or do they have a practical bent? A lawyer who wages constant battles and exaggerates positions or evidence tend to extend a dispute unnecessarily and can cost the company valuable time and money it should be spending on its core business. These lawyers can also lose credibility with the court and the other side, which can negatively affect their case. But if a lawyer wants to talk about weighing business needs and legal options, you may have found the right one.
2. If they don’t talk to you like a human being, walk away.
Lawyers tend to use strange or archaic legal terms and just assume that people understand them. If a lawyer can’t provide you with a simple and understandable explanation in response to your questions, imagine how hard it will be for them to talk to a jury or write a persuasive brief for a judge and her law clerk. I’ve seen some briefs filed in my litigations where it was difficult to understand what the other side is asking for or what evidence it has to support a request. That makes it hard for the judge to help them.
3. Get a proposal with cost estimates and fee structures, in writing.
Naturally, we don’t know ahead of time how much time and effort we will invest in each client project. But don’t let a lawyer tell you that they can’t give you any estimate of the project or case costs. Make them do their homework, so that they learn your case and your business. For litigations, in particular, they should provide a reasonably-tailored estimate or budget, which will have some built-in assumptions that drive the calculations.
Some lawyers even set fixed costs for relatively simple or routine activities. Others may be willing to share litigation risks with their clients by setting up contingent or stepped fees that are tied to a desirable outcome. But if a law firm agrees to start sharing significant risk with the client, it is going to ask the client give up some control of major tactical and case management decisions.
If you would like to see more tips on avoiding gangrene lawyers, drop me a line (see my Twitter handle below) and let me know!
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