The last couple of months have been tough. Hurry up and wait followed by crushing deadlines--self-inflicted wounds (for some of my clients and for me)—disappointments, delays, snafus (thanks, Mercury Retrograde), a general breakdown in people and systems, and a smattering of self-doubt.
When you hit a stretch like that, it’s hard to keep your footing and your perspective intact, but it also helps me tremendously to review and reflect once the eye of the storm passes. What worked, what stunk, what could I have done differently? While there have been many personal lessons from the last two months, I won’t bore you with them now (but trust me I’m integrating them). What I do, however, is lay out for you what is within your control and what will help make the attorney-client relationship work well and, ultimately, add value to your business.
So here are my top takeaways from February and March in no particular order.
Whether you are buying or selling a business, know that there is emotion involved. Lots of it. Ignore these feelings (which often manifest in arguments over seemingly little things, bizarre lines in the sand, deal fatigue, missing information) at your peril. Some people buy and sell businesses routinely, but most don’t. They have no experience to draw from. Your trusted adviser (attorney, accountant, broker) has passed this way before. Often. If your trusted professionals have advice on something---listen. Let their experience work for you.
Excessive speed is dangerous. We are all guilty of the assumption that everything is “just add water and stir” these days. But sale transactions, international contracts, and complicated operating agreements take time. I don’t think we even know what’s truly realistic—from a time perspective --anymore. If your attorney tells you they need time to think about something, it’s not a cop out or a tap dance. We must process and digest. Excessive speed is where wrecks happen. Lawyers try to avoid wrecks. I want the deadline met, believe me. But I want to do it without you taking foolish business risks that end badly. Litigation is not where you want to be. Ever.
Let’s talk openly about fees. I work mostly on flat, capped, and project budget fees, but I also build in contingencies. I’m up front about those and they are based on experience. I am not at all uncomfortable discussing fees, but it makes many clients squirm. That’s not my intent. I will always work with you. However, telling me after the fact that you’ve run out of money, haven’t paid your employees, expected to only pay a couple thousand dollars for the purchase or sale of a business or think you will DIY something you can’t possibly do will make both sides feel lousy. Being open and up front doesn’t cost anything and avoids anger and resentment on the back end.
Please, please don’t hide stuff from your attorney. I know, sometimes you don’t know what’s important so you leave something out. But lots of times there is something else going on. I can’t advise you if you are posturing or withholding information. I’m on your side, always. Even if we have to have an uncomfortable conversation about less-than-stellar business behavior or an inadvisable decision. I can’t help you if I don’t know. Every lawyer has had that truly sinking feeling when they are blindsided by a fact that their client “forgot” to tell them. I’d much rather help come up with a solution before you are stuck in that 8-foot trench and sinking fast.
Don’t hesitate to ask business questions. At least two times a day I have conversations that begin with, “Well that’s not purely a legal issue but here are some practical business things you may need to think about.” I’ve worked inside a large franchise business, served as an outside general counsel for clients in a number of spaces, and I’m running my own small business. I want to bring that expertise to bear for you and even if you don’t ask, I may offer it up anyway.
Don’t be put off when we ask you a lot of questions about your business. I can serve you best when I know about your business. I may understand the industry generally but your business is unique and I want to know what’s important to you. That way, I can give you advice that matters to your business.
Yes, Virginia we do have to talk about the European Union’s (“EU”) General Data Protection Regulation (“GDPR” for short) and yes it might apply to your web business even if you are not targeting customers directly in the EU. When your attorney brings this up, don’t assume we’re just trying to run up your fees. We are not. It’s a real thing with big penalties. Yes, the Googles and Amazons of the world may be targeted by regulators first, but you don’t want to be a test case.
Speaking of Google, it is awesome. I use it every day. I support you using it to educate yourself about any topic you want. But it is not a substitute for the context a lawyer will provide to you and your business. Also, don’t just assume a document you download from somewhere on the internet is good enough. I’d rather discuss a flat fee you can bear (see #3) than have you pull a random contract off the World Wide Web.
Appreciation is so very welcome. I know I can’t use it to pay my kid’s tuition at NAU but boy is a “thank you” nice. Sadly, it doesn’t happen that often but when it does it is a game changer. I’ve said this before, but most lawyers don’t do this very difficult and all-consuming job for the money. They do it because they want to make a difference. When someone takes time to say thank you, it makes a huge impact and ultimately will carry over into a better relationship and better outcomes for your business.
Don’t be surprised when we say, “I don’t know.” Some lawyers might convey they have an answer for everything. I’m not one of them. I learn and apply new stuff every day. Certainly, if there is data or caselaw or statutes, you may get closer to an answer but often there is no single right answer, only shades of risk. I will help you weigh those risks, but I will also let you know what risks may not be readily calculable. Also, if I recommend getting a consult with a lawyer who has experience in something specific (tax, securities, employment, etc.) it’s because I’ve identified a real issue, not because I want to punt or run up an additional bill.
I’ll leave you with this. Unlike your CPA, with whom you have contact frequently throughout the year, lawyers usually arrive on the scene only when you have a specific need, a finite task, a real problem. That’s not always the best way to get to know someone. However, the lawyer-client relationship can be a real engine for business growth and partnership, but like any other relationship it takes work and open dialogue. Invest the time and your business will benefit.