Am I the right attorney for you? Take a look at the 10 reasons you should NOT hire me, then decide for yourself.

1. If you do not want an aggressive lawyer, you should not hire me. I am by nature very aggressive. I believe that the best defense is a good offense. I also believe that preparation is the mother (and father) of success. If you prefer a more laid-back approach, you will not be comfortable working with me. If this is the case, I will be happy to recommend other attorneys for you to talk to.

2. If you do not want to work with me as part of a team, you should not hire me. If you are not willing to help yourself, if you are unwilling to produce or review documents or gather information, if you know better than your attorney what documents are important, if you have problems keeping appointments with your attorney(s), if you do not return calls or read and respond to emails, if you fail to tell the attorney everything or mislead the attorney, three things will surely happen: the case will suffer (and perhaps be lost); the cost will skyrocket; and you will not be happy.

3. If you “know” the law and are looking for a “creative” lawyer to see it your way, you should not hire me. I pride myself on giving my clients an honest, independent, objective view of the law.

4. If you believe that you have agreed on everything and now you just need me to write it up, you should not hire me. My job is not to be a naysayer or block the deal but to make sure you know the risks you are assuming and what you can do to reduce those risks. If you don’t want to hear this, you will need to hire me later, when something goes wrong.

5. If you say that “I don’t care what it costs, it is the principle of the thing.” you should not hire me. Or are you willing to put it in writing?

6. If “(insert name of friend or relative here) had a case just like this,” you should not hire me. Unless, of course, your case is not just like her case, and there is some wrinkle in it that makes it different. If the facts are different, the application of the law to those facts will be different.

7. If you want me to see things from your side only, you should not hire me. I won’t waste your time with false optimism.

8. If you sign things without reading them (or claim that’s what you did in this case), you should not hire me. Will you read and understand my retainer letter before you sign it? Will you read each and every email and letter and document I send you? If not, review reason number eight for not hiring me.

9. If you believe that “I know for a fact that X couldn’t do (fill in the blank) to me, it’s not legal,” you should not hire me. There are exceptions to every rule and part of my job is to find them and protect you from them.

10. If you think that you can prove your case merely by saying (fill in the blank), do not hire me. To win your case we will have to prove (fill in the blank), even when the other side is trying to prove you wrong.

11. If you believe that “I know they’ll settle as soon as a complaint is filed,” or “Just write a letter and they’ll pay,” you should not hire me. You would not give up your rights and property merely because someone wrote you a letter (in fact you might see the letter as a threat and resolve to fight harder). If you are not willing to fight to enforce your rights, you are playing poker—and while a bluff is acceptable in poker, it frequently gets called. If you are not prepared for your bluff to be called, you should not hire me.

I tell every businessperson I meet that every business needs two professionals: an accountant and a lawyer. The reasons for hiring an accountant are pretty obvious—you need someone to help you set up your “chart of accounts,” review your numbers periodically, and prepare all of your necessary federal, state and local tax returns. The reasons for hiring a business attorney are not always obvious. But a good business attorney will provide vital assistance in almost every aspect of your business, from basic zoning compliance and copyright and trademark advice to formal business incorporation, employee relations, lawsuits and liability.

“I paid for it so I own it!”
“No you don’t. I created it so I own it!”

Sound familiar? Ownership, and just about anything related to intellectual property, is the current hot lunch and dinner party topic. With the advent of the Internet, John Q. Public has become sensitized to issues of ownership and branding like never before, and everyone wants to protect what they own or think they own. Unfortunately, even if you paid for someone to create something for you, there are many factors that determine whether you own it unconditionally.

A work created for or prepared by someone else usually falls under the copyright category of a “work for hire.” The Copyright Act of 1976, 17 U.S.C. sections 101 and 201(b), and in particular, the provision in section 101, essentially defines a “work made for hire” as either:

• A work created by an employee, someone who works at your place of business, uses your stuff, and takes home a paycheck from you after you’ve taken out taxes
• A work created by an independent contractor, hired by you but who does not use your stuff or place of business to create the work, is not directly supervised by you, and pays his or her own taxes

To better understand the complexities of ownership, consider this scenario:

A client hires an architect to create and draw plans for a new house. During construction, the client discovers the architect to be slow, obnoxious and unresponsive in working with the general and subcontractors, as well as with the client himself, regarding changes in the plans. Eventually fed up, the client fires the architect. Angered at his dismissal, the architect refuses to hand over the mechanicals and other drawings, stating that he is the owner of the copyright. The client, believing the drawings to be his purchased property, threatens to take the architect to court unless the plans are returned.

Who is the actual owner of the plans?

The answer is that it depends on what was written in their contract, assuming they had a contract. If the architect considers himself an independent contractor but the client considers him an employee, and their relationship is not spelled out in writing, the matter may become litigious.

In Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989—hereinafter, CCNV and Reid), considered the seminal case for deciding work-for-hire copyright ownership, a disagreement between two do-gooders over how and how often to display a large sculpture depicting a homeless family a la urban Nativity degenerated into a copyright brawl and a Supreme Court decision. Because there was no written agreement, and no discussion ever took place regarding copyright ownership, CCNV, a nonprofit organization dedicated to assisting the homeless, and Reid, a well-intentioned sculptor, ended up in court. Reid was commissioned by, and donated his services to, CCNV, who picked up the tab for materials and staff wages. They collaborated on the design, and it was that collaboration and the outlay of monies that fueled CCNV’s belief that CCNV owned the work. When Reid disagreed with their plan to aggressively tour the work and then refused to return it to CCNV, CCNV filed suit. The District Court found for CCNV, ruling that Reid was an employee, but that decision was reversed by the Court of Appeals for the District of Columbia Circuit, holding that Reid was actually an independent contractor, and due to the lack of a written agreement and any discussion regarding copyright ownership, the reversal was ultimately upheld by the Supreme Court.

How does this impact our hypothetical architect?

Returning to our original scenario, ownership of the plans and the copyright are really separate issues. Work for hire relates only to the copyright and not the underlying work. The client may be entitled to receive the original plans, and an implied license may have been granted to make copies to achieve the purpose expressed in the contract, but the client still could be prevented from building the house if the architect chooses to terminate the license, again depending upon the contract terms. If there is an express writing signed by both the client and the architect agreeing that the plans are a work made for hire, then the one commissioning the work—the client—is the author and copyright owner. That is, the architect never possessed the copyright, as it vested in the client when it was created. If the client is the one building the house, then the architect will have to release the plans. If there is no executed contract, or if one exists but does not expressly state that the plans are a work for hire, then the architect, if he or she is the author, holds the copyright.

We all know that not everyone plays well with others; hence, the need for written agreements. So in our scenario, who really owns the plans? It depends.

Should you use an on-line incorporation service to create your firm?

Well, do you buy your suits off the rack and hope it fits perfectly? Or do you have one tailored to fit properly? Almost no one can buy a suit off the rack without adjusting the pants, the waist or the shoulders. It’s the same with legal services. If you are happy with a cookie-cutter approach to problems, then by all means use an on-line service. These shops are cheaper than what an attorney will charge. But they do not offer the perspective that a business needs as it grows. No matter what, there will be gaps in the incorporation service’s product. Things that should have been tailored to the special circumstances of your company or that can be done easily now or expensively later.

For example, when you start your company, you don’t have to worry about votes and filing amendments to the corporation papers with the various state agencies and the IRS, and reporting the changes to the various parties who have an interest in any changes in the corporate structure (creditors, lenders, tax authorities).

Of course, even a customized set of corporate documents may have to be altered in the future. But it will be your material, and will be easier to alter.

Historically, people who ran businesses as sole proprietors or partners were personally liable for all debts of the business. A corporation will provide limited liability for the owners of the business; the most they have at risk is what they have invested. However, it will not provide protection for you for acts that you, personally, take for the business.

In addition to the question of piercing the corporate veil, if you sign a contract—a lease, a mortgage, a credit card application for the corporation, you may be expected to personally guarantee the contract; if so, you will still be personally liable for the debt.

Second, and this is the real problem, most small businesses are run by the owners.

If you own a small business, chances are you are highly involved in running it. And that can present legal problems, despite being incorporated. Why? If the business does something that causes harm, then chances are you will be sued, in addition to the business entity—not on the basis of your ownership of the business, but on the basis of your running the business. If you are driving the business vehicle and get into an accident, they can sue you personally because you were the driver. If one of your employees gets into an accident while working for the business, they may be able to sue you, individually, for negligent hiring/retention/supervision/entrustment. If someone slips and falls on the ice outside your business, to the extent that you were responsible for making the decision to remove the ice, as manager, you can be sued personally. If a tenant gets hurt on your rental property, they may sue you as property manager. What I’m getting at is this: If you are involved in running the business, chances are you are going to be liable for the debts of the business, notwithstanding that you have a corporation or LLC or LLP.

So what should you do? The best thing to do is to get insurance, and a lot of it.

Choosing an attorney to represent you is an important but daunting task. The decision certainly should not be made on the basis of advertising. The Yellow Pages are filled with ads—all of which say basically the same thing. You should not hire based solely on TV advertising—anyone can buy a slick commercial.

The world of business and commercial litigation is much too specialized for someone who does not regularly handle these cases. Too many times we have looked at cases that other inexperienced attorneys have handled. You should be aware that the law firms who represent many of the larger businesses know who the attorneys are in your area who actually go into court to try cases and who does not. They will use that information to evaluate their client’s risk. One of the first questions any good business litigation attorney will ask when a serious claim comes in is: who is representing the other side?

So how do you choose? How do you determine the attorney in your local community best suited to your case? I believe there are certain questions to ask that will lead to the ideal person for your case.

So how do you locate a good business litigation attorney in your area? Here are some tips.

1. Get a referral from an attorney you know. He or she will probably know someone who focuses on business litigation. If you don’t know anyone at all, your local bar association probably has a lawyer referral service. Understand that lawyers have signed up to be listed in certain specialties. Their names come up on a rotating basis. However, this is still a good source for an initial appointment. Just take the questions we talk about here to that interview.

2. The Yellow Pages are not a very good source of names for business and commercial attorneys. First, not everyone advertises in the Yellow Pages. We don’t—most of our cases come from referrals from other attorneys. Second, be careful about the ads that tout too many different specialties. No one can be good at everything!

3. Interview several attorneys. Ask each attorney who else handles these cases in your area. If they won’t give you any names, leave. Ask this question of each attorney. The names you see showing up on various lists of recommendation are probably good bets to be doing these cases on a regular basis in your area. This is probably the best way to find the attorney who is right for you.

Here are some issues and questions you should bring up with any prospective business litigation attorney. Note that not every attorney will meet all of these criteria, but the significant absence of the following should be a big question mark.

• Experience. Obviously, the longer you have been practicing a particular area of the law, the more you will know. We believe that experience is a big factor in most cases.

• Experience actually trying cases. Ask the attorney how many cases he has actually tried. Has he or she achieved any significant verdicts or settlements for his/her clients? The greater your number of cases actually tried and substantial verdicts and settlements achieved, the more the other side will respect you.

• Respect in the legal community. Has this lawyer lectured or taught other lawyers?

• Membership in trial lawyer associations. In our area, you can certainly find a lawyer who is a member of the Virginia Trial Lawyers Association (VTLA), the D.C. Trial Lawyers Association and the Association of Trial Lawyers of America (ATLA). All three of these organizations provide extensive education and networking for trial lawyers. Why would you hire an attorney who is not a member?

• Publications. Has the attorney written anything that has been accepted for publication in legal journals? This is another sign of respect that the legal community has for his or her skills and experience.

So, you’ve done your homework, asked the right questions, and think you have found the right attorney to handle your case. Here are a few final issues to consider.

• Is the attorney licensed in the state where your case will be filed. We believe that an attorney who is not licensed in the state where the case will be filed is at a disadvantage. The other side will know who is not licensed, and thus, cannot actually try the case.

• How will your attorney keep you informed about the progress of the case? In our practice, we generally send a copy of every piece of correspondence and pleadings in the case to the client. We also take time to explain the “pace” of the case and in what time frames the client can expect activity to take place. The client is invited to call or email anytime. We try to return every call within 24 hours. If we can’t, our office will help you set up a specific “telephone appointment” for you. You are also invited to make an appointment to come in at a time that is convenient to you.

• Find out who will actually be working on your case. Make sure that you and your attorney have a firm understanding as to who will be handling your case. There are a lot of things that go on with a case that do not require the senior attorney’s attention. On the other hand, if you are hiring an attorney because of his or her trial skills, make sure he or she is the person who is trying your case for you.

I’ll be posting answers to frequently asked questions about Contracts. Let’s start with the two of the most basic questions of all.

What is a contract?
A contract is a legally binding agreement between parties that creates an obligation to do something, or, in some cases, not to do something.

Why should I use a written contract?
At any one time, more than 90% of all corporations are involved in some kind of business litigation, both as a Plaintiff and as a Defendant. It would appear that corporations often use litigation as an effective dispute resolution tool. Other than intellectual property disputes, disputes over contracts and employment are most frequent.

Why are contract disputes so common? Because most businesses don’t realize the importance of a good, solid contract, not only as protection but also to use as a roadmap for the working relationship between the parties. A good contract decreases misunderstandings, gives methods for working out problems, defines the exact relationship between parties to minimize damage if and when things go awry. Some agreements must be in writing. Generally, contracts over one year in length, contracts for the purchase of goods over $500, some leases, and real estate purchases must be in writing. Whether a particular contract should be in writing depends on the facts and circumstances and should be reviewed by an attorney. Writing the contract down avoids people later changing their story about what was agreed to, and helps the parties focus on the important points.

What law governs contracts?
Contracts are generally governed by the law of the state where they were written. However, through a choice of law provision, this can be modified and the laws of another jurisdiction can apply.

What are the purposes of a contract?
The 3 main purposes of a contract: detail what both sides have to do, detail how both sides will get paid, and give both sides a way out of the deal. If all 3 purposes are not in the contract, it is not a complete contract. The contract should also clearly indicate when the performance will be considered complete.

What does “breach” mean?
A party breaches a contract when that party breaks its end of the deal or fails to fulfill its
obligations under the contract.

What can I do if someone breaches a contract?
Most contracts are enforced in court. If the other party breaches the contract, you can go to court to try to collect damages or obtain “specific performance.” However, some contracts have an arbitration clause, which requires any disputes to be arbitrated by a neutral party.

What is “specific performance”?
Specific performance is a remedy that courts may use when money damages will not remedy a breach. Specific performance is generally used when the item in the contract is unique, such as with land or custom goods.

What should I do when signing a contract?
1. Be sure you have read and understood all of the contract. If you do not understand it, don’t sign it until you do understand it
2. Be sure everyone signs & dates the final page
3. Be sure everyone initials & dates each page of the contract
4. Contract pages should have numbering “1 of xx pages”
5. Be sure all warranties, etc. that are incorporated by reference are attached to basic contract
6. If the contract is a form contract, *all* entries must be filled out. (If the space does not apply, use “NA,” etc.)

What should a business contract contain?
1. Reasonable attorney’s fees & costs in collection
2. A provision for interest finance charges
3. A statement of which state law controls
4. A statement of where disputes must be resolved
5. The consequences of not paying, e.g., contract and warranty are void
6. A section that defines terms carefully
7. A statement that only the written contract controls and that verbal statements do not make part of the contract
8. A definition of what comprises the written contract, with its additions, etc., so that warranties, exceptions, etc. are incorporated by reference
9. A statement that all changes to the contract must be in writing
10. Fixed dates for completion if appropriate
11. A clause that makes clear that the parties cannot be liable for things out of their control (terror, weather problems, etc.)
12. Compliance with appropriate consumer protection laws (if applicable)

I will address certain questions and issues you must consider and evaluate thoroughly before firing anyone, no matter how incompetent you believe them to be. Some of these will seem obvious, others might surprise you. If your answer to these questions is no, you should be okay if the person files a lawsuit.

Will the employee be discharged for any of the following reasons?

• Race
• Religion
• Sex
• Age (over 40)
• National origin
• Children or childbirth
• Pregnancy
• Disability
• FMLA Leave

Will the employee be discharged for acting in concert with other employees to:

• Organize collectively
• Push for a raise or shorter hours
• Ask for changes in other working conditions
• Support another employee in his/her protesting

Issues regarding the Employee Handbook

• Will the discharge violate any type of implied contract or your own Employee Handbook?
• Does the company employee handbook provide that warnings must be given before an employee may be discharged or that an employee may be discharged only “for cause”?
• Does the company have written employee policies that promise “fair treatment”?
• Is there a written, signed employment contract?

Issues regarding torts:

• Will the discharge constitute a tort?
• Has the company committed the tort of outrage, by being abusive during the discharge through either high-handed interrogation methods or flagrant misrepresentations to the employee as to the reason for discharge?
• Has the company been negligent or inconsistent by failing to follow its own policies, which failure resulted in the employee’s discharge?

Will the employee be discharged for any of the following acts or omissions?

• Refusing to do an illegal act
• Filing a worker’s compensation claim
• Reporting violations of EEO, OSHA, or ERISA regulations or “whistle-blowing” on the company’s possible violations of laws

Will the employee be discharged for refusing to do a job he or she considers unsafe? (If objective facts back up that the job is unsafe, this gives rise to a possible OSHA violation.)

• Would doing the job reasonably place the employee in imminent danger?
• Has the job been performed safely numerous times in the past?
• If so, why does the employee now consider it unsafe? Has there been an accident on the job shortly before the refusal so that the employee has reason for concern?

Will the company deny a hearing (with witnesses present) to provide the employee an opportunity to admit or deny the reasons for discharge?

Has the company failed to give the employee an oral or written warning to correct the conduct?

Has the company let other employees get away with what the employee is to be discharged for?

Did the company promise the employee, at the time of hire or subsequently, that “the job will be yours for as long as you want it?” Was the employee promised an “annual salary?”

Will the employee be discharged for a physical condition (for example, high blood pressure, diabetes, or a back condition) in violation of federal and state statutes prohibiting discrimination on the basis of disability or FMLA leave? Has the company tried to make reasonable accommodations for the employee to work at some other job?

Is there no written documentation (for example, prior reprimands) of the conduct leading to the employee’s discharge?

Did the employee give up a job and/or home in another city to work at the company? If the answer is yes, were promises made to induce the employee to do so that were not kept?

Will the company call the discharge one motivated by a need for reduction in force when in fact the reason is unsatisfactory work performance?

If the company plans to hold an investigatory interview prior to the discharge, will the employee be denied a union or coworker representative, despite his or her request?

And finally, ask yourself this: Am I retaliating in any way ‘against an Employee’s protected rights?’

NDA’s–an Introduction:

A lot of business comes my way from businesses and key employees fighting over whether or not the employee or (more usually) ex-employee can use/disclose things s/he learned while working. These disputes revolve around what is called a Nondisclosure Agreement or “NDA”. So I thought I would post on the key Elements of a Nondisclosure Agreement which may help avoid future problems.

Be Sure to get the NDA signed

You would not believe how many firms have very good Non-Disclosure Agreements drafted up but which they never use. Or, worse, which they use sporadically. So, of course, the one key employee never signs her NDA and, because you did have one signed by some people, it looks like you agreed not to have her sign the NDA. Oops!

NDA’s–Define Confidential Information

Every NDA should describe the types of information to be protected in the agreement. Common categories of confidential information include formulas (recipes), patterns (designs, blueprints, and specifications), compilations (customer lists, data collections), programs (software and computer code), devices (physical machines and inventions), methods (marketing, advertising and business plans, planned product announcements), techniques, or process (chemical, mechanical and manufacturing processes). If you don’t do that you could be accused of trying to declare the location of the bathroom to be confidential information.

Not all confidential information is entitled to trade secret protection. For example, confidential information discovered prior to the creation of the confidential relationship, discovered independently and discovered by reverse engineering (i.e., by obtaining confidential information in the process of disassembling a publicly available product) is not entitled to trade secret protection.

An NDA should include a provision identifying the period in which the information must remain secret. The term in which confidentiality is to be maintained is negotiable. A term of 5 years is common in the United States, and a term of 10 years is typical in Europe but they vary and should be carefully thought out.

NDAs should include provisions making the receiving party’s obligations explicit. At a minimum, a NDA should recite the receiving party’s obligations to maintain secrecy and limit the use of the confidential information. The NDA should also make explicit that the receiving party is prohibited from breaching the confidential relationship, inducing others to breach the confidential relationship or inducing others to acquire the confidential information by improper means.

Other clauses and provisions one should consider including in a NDA are listed below:

• Choice of law provision
• Forum selection/choice of venue clause
• A clause requiring arbitration to resolve disputes
• A provision entitling a prevailing party to recover attorneys’ fees in certain situations
• A provision requiring departing employees to inform their future employers about the NDA
• A clause allowing the employer to assign the NDA to a successor, affiliate, subsidiary, etc., without employee consent
• A “tattle-tale” provision requiring an employee who becomes aware of any breach of the NDA to inform the employer of the breach
• A provision requiring an employee who is uncertain if particular information is within the NDA’s definition of confidential information to request a written clarification from the employer

RULE 1
If you are being sued, it’s too late. Most small businesses put off hiring a lawyer until the sheriff is standing at the door serving them with a summons. Bad mistake. The time to hook up with a good business lawyer is before you are sued. Once you have been served with a summons and complaint, it’s too late–the problem has already occurred, and it’s just a question of how much you will have to pay (in court costs, attorneys’ fees, settlements and other expenses) to get the problem resolved.

RULE 2
America’s judicial system is a lot like a Roach Motel–it’s easy to get into court, but very difficult to get out once you’ve been “trapped.” While nobody likes to deal with attorney, let alone paying attorneys’ fees, the fee a lawyer will charge to keep you out of trouble is only a small fraction of the fee a lawyer will charge to get you out of trouble once it’s happened.

RULE 3
Big firm or small firm? Generally speaking, the larger the law firm, the greater the overhead, therefore the higher the hourly rates you will be expected to pay. If you use a solo practitioner or small firm as your lawyer(s), it’s likely that they will not have all the skills you may need to grow your business. No single lawyer does. So the solo or small firm lawyer will have to refer you out to someone they know and trust to do the job right. On the other hand, while a larger firm may have all the legal skills you need “under one roof,” you don’t know who they are or how good they are. Either way, though, you will have to consult several attorneys over time.

RULE 4
Large firms do have a lot of clout in the local, regional and (perhaps) national legal community. A nasty letter from a law firm with offices in 30 states may be more intimidating than a nasty letter from a solo practitioner. Unless, of course, the solo has a reputation for being a ferocious trial lawyer.

My website (www.BusinessBrawls.com) says a business brawl is a dispute about money. Well, OK. But really a Business Brawl is a business dispute over money where the people involved are unwilling or unable to compromise and work things out. (Even when the dispute is between businesses, there are people involved who are making the decisions.) Frequently the dispute is large enough to threaten the well-being of the businesses. That’s what we do–resolve business disputes any way he have to.