Those of you reading this article looking for the latest lawyer joke will likely be disappointed in the text that follows. This piece is not meant to be yet another bashing session directed at the legal professional, but rather to give you solid information on how to avoid the common mistakes that even the brightest and most seasoned executives make in attempting to successfully work with and manage attorneys. I grew up in a legal family, have been a managing director of a law firm, recruited and managed legal staffs as a C-suite executive and have dealt with many an outside counsel as an entrepreneur. I have both sued and been sued, and suffice it to say I know the good, the bad and the ugly about the legal profession. As with any other profession there are excellent practitioners, middle of the road journeyman, well intended light-weights who try hard but consistently find themselves in over their heads, brilliant academics with no practical experience or common sense, and yes, there are a few rouges and scoundrels as well. The reality is that most people that have a negative experience with the judicial system blame the lawyer. If the plaintiff or the defendant doesn't achieve the expected outcome it must be the attorney's fault, right? Wrong...If you retain the wrong lawyer that is not the lawyers fault, if you place yourself or your business in harm's way because you didn't recognize or manage risk, that is not the fault of the attorney who tries to help you and if you don't manage the legal action and/or the attorney with the same attention to detail you manage other areas of your business that is not the attorney's fault either. Think about this...If you found out you had an operable brain tumor, but decided not to do anything about it until you actually started to observe diminished capacity and then sought out the cheapest doctor you could find (an experienced brain surgeon would be far too expensive) to conduct the operation how do you think you would fair? OK, it is a given that no reasonable person would handle the aforementioned scenario as described, but when it comes to legal work I can't even begin to count the number of times I've witnessed someone wait too long to act or react and then rush to retain an attorney based upon little more research than the scrutiny of an hourly rate. It is this author's humble opinion that the truth about lawyers is that most people frankly get what they deserve. However if you adhere to the following best practices when entering into and managing an attorney client relationship you will fair better than most. 1. Hire the best legal counsel you can afford, not the cheapest you can find. As with any profession there is value in experience and knowledge as well as a competitive advantage to be gained with talent, reputation and connections. Never hesitate to get a second opinion as there are very few stock answers to a legal issue. 2. A lawyer is no different than any other vendor or supplier and they should be put through the same level of scrutiny (in my opinion a higher level of scrutiny) as anyone else in your supply chain. I adopted the practice quite sometime ago of putting my legal work out to bid through a managed request for qualifications (RFQ) and request for proposal (RFP) process. I assess my needs, identify my requirements and seek to find the best representation possible by having attorneys compete for my business on my terms. 3. General Counsel is fine, but only if they are managing the right specialist. A generalist cobbling together documents by pulling a template down from a Westlaw search is a far cry from having true subject matter expertise. All attorneys are not created equal. Hire the right lawyer at the right time for the right reason. 4. Along the lines of number three above, a smart attorney doesn't necessarily translate into a good attorney. Just because someone possesses a J.D. doesn't mean they have any practical experience. Most lawyers don't graduate from law school with any formal business training and fewer have any real world business experience upon graduation. It is imperative that you select counsel who is not only a subject matter expert in his/her practice area, but that also has very sound business acumen. If an attorney is not fluent in my business they won't be retained by me to represent my business...end of story. 5. The best way to manage your legal risk is to be proactive not reactive. Assess your legal risks and take aggressive and proactive measures to mitigate said risks. I developed the shortest legal mission statement on record and require any attorney who represents me to use it to as their operating mantra; it simply states: "anticipate and insulate". The best defense is a great offense when it comes to legal work. 6. At the end of the day you must take an active role in managing your legal affairs. As a principal owner or senior executive the buck stops with you. You need to manage the attorney and the process to the best possible outcome and this cannot be accomplished with a passive management style. You can either manage the legal process or let it manage you. As a consumer of legal services the phrase "Caveat Emptor" (Let the buyer beware) applies in spades. If you take an informed and proactive approach to managing your legal risk you will fair better than those who don't. A plus might just be that if you hire the right attorney for the right reasons you may in fact end-up developing a strong personal and professional relationship that won't end-up as subject matter for a lawyer joke. |
