Authored by: Suzanne Natbony, Esq.* and Anthony K. McClaren, Esq.
Most clients that we represent have the following typical top five business goals:
1) Make a profit, if not maximize profits,
2) Provide a useful/safe/top-notch product/service in that provides customer/patient satisfaction,
3) Minimize legal risks,
4) Reduce costs, and
5) Minimize tax exposure.
General counsel and litigation attorneys advise the following top five legal strategies to minimize legal risk, empower small businesses, and drive success:
- Forward thinking about employment relationships and contractual relationships that anticipate potential exposure.
- Using counsel to draft appropriate legal documents as soon as possible, containing binding arbitration clauses and prevailing party attorney fee clauses.
- Prompt and realistic assessment of potential exposure, preferably before any claim is received.
- Walking a fine line between being a good employer or business, but not overly accommodating an employee or contractor.
- If presented a claim, maintaining a realistic viewpoint on early resolution, which saves resources.
General counsel work very hard to achieve those goals for clients. If they cannot prevent the claims, the litigation attorneys deal with the downfall. Below are five legal issues that can derail General counsel’s efforts:
- Doing Business with Bad People
- We cannot emphasize this enough – business partners, employees, customers, vendors, etc. – if you end up dealing with a complainer, or someone who is vindictive, difficult, litigious, entitled, pesky, or even worse, criminal, such as a fraudster, your business will likely suffer. Lawyers can help you vet your contacts by conducting due diligence on potential deals and relationships. Also, the recommendation to have a “no jerk policy” is a key means for prevention.
- When You Are the Bad Actor
- Do not alienate, belittle, overpromise/underdeliver, fail to recognize colleagues, employees, or customers. Disputes can arise, for example, when a client has had a bad day and been rude to an employee, or failed to recognize an employee, causing the proverbial “chip on a shoulder,” or when the business overpromises about a product or service, or perhaps just falls short of providing the best service. If these things happen, customers complain, and possibly become litigious.
- Failure to be in Legal Compliance and Getting Caught
- This could be seemingly innocent, such as your website was not in compliance with the Americans with Disabilities Act, and you get sued. You want to make sure to have a lawyer review your business plan, products, website, advertisements, and all other aspects of your business to make sure that you have legally required language protecting you.
- Resisting Change/Failing to Adapt to Changing Technology/Customers/Growth
- Business success requires a certain degree of determination, which can include rigidity, but there needs to be room for growth, improvement, and change. A seasoned and experienced general counsel, with business experience, can assist by facilitating deals, rather than failing to allow them to begin.
- Passing Up Opportunities.
- Related to the above issues with resistance, businesses sometimes miss great opportunities. Lawyers may employ calculations to help their business clients determine whether to partake in or pass on these opportunities. Overlooking opportunities, when compounded with litigation, is a major distraction from growth.
General counsel cannot help prevent all problems. Still, they will assist clients to draft policies and procedures that will prevent or put out fires, as swiftly and efficiently, as possible.
If litigation occurs, below are five things to consider:
- Do not take the claims personally. Litigation is an unfortunate inevitability when conducting business. View the claim objectively, but with determination and resolve.
- Communicate immediately, and regularly, with your litigation counsel. He or she did not experience the claim firsthand, and must be fully informed of the details.
- Trust your attorney. To do so, make sure you have a good referral for counsel, or a meaningful long-term relationship with counsel. The job of litigation counsel is to make your problem, their problem, and solve it.
- Manage expectations. Litigation is a time consuming and potentially expensive event. Keep in mind you will be involved in it for a potentially long time, and you should adapt with the developments.
- Keep doing business. Do not allow litigation to cloud your vision, growth, and happiness in what you have worked so hard to achieve. As the saying goes, This Too Shall Pass.
By proactively addressing common pitfalls, businesses can significantly reduce their exposure to legal risks and focus on their core operations. A skilled and experienced general counsel can be a valuable asset in achieving these goals, providing strategic guidance, and mitigating potential legal issues. Ultimately, by prioritizing legal compliance, fostering positive relationships, and adapting to change, businesses can thrive and avoid costly legal battles.
* Suzanne Natbony is a licensed California lawyer, with an emphasis in healthcare law, and partner at Aliant LLP, with her own law firm, Solve & Win, PC, practicing transactional and regulatory-compliance law, while also being an entrepreneur with her own healthcare product company, with three patents in her name on a Class II FDA medical advice. She is also general counsel to a multistate medical spa franchise and other medical spas and physicians around the U.S. You may contact Suzanne by email at suzanne@lawyer.com.
** Anthon McClaren is an attorney licensed in California and New York, emphasizing his practice on litigation and counsel of employers and businesses, in a variety of industries including construction, meat processing companies, and construction remediation companies, among many others. He is the owner and Principal of Telikos Law Corporation, and affiliated with Aliant LLP. His office is in Los Angeles, California. He may be reached by email at akm@telikoslaw.com
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