Too frequently, business people, such as concrete contractors, view their lawyers a necessary evil in the landscape that is the modern business world. Too often, lawyers, by the way they handle problems, as well as their clients, foster this mindset. Some narrow-minded lawyers go so far as to actively encourage it. In the end, this kind of attitude benefits no one and ultimately will be unhealthy for the business, the industry and society at large.
If business people and lawyers could work together with the betterment of business as the focus of the relationship, businesses would have a greater ability to thrive and excel rather than merely survive. To do so, however, requires a certain degree of persistence and clairvoyance on the part of the business owner. The business owner must be willing to engage an attorney in a business consultant-type role and, more importantly, must be willing to seek out the kind of attorney who would relish such an opportunity.
Finding the lawyer
A business owner often hires an attorney that he knows through some other circumstance. It could be a local social club, the golf course or poker night, but once the informal relationship is established between owner and attorney, an owner will frequently rely upon that sense of comfort to elevate the casual relationship into a business relationship. This may be the worse possible thing to do. Rather, a business owner should actively seek out leaders within both the legal and construction industry and interview them at depth. It would be easy - and comfortable - to rely upon the war stories an older attorney will recount. However, an attorney who does such a thing may well be signaling his inability to work in a novel economic model. Instead, just like a business owner would interview other management-level candidates for other positions, the owner should seek an attorney who is willing to take a business-minded approach to the representation, personalize his efforts rather than relying upon a one-size-fits-all method, and seems genuinely interested in working proactively for your business. As stated before, this may require a degree of clairvoyance, just as any interview process does. But with some diligence it can be accomplished.
The business purpose of litigation
With the new attorney in hand, the business owner should be able to sit down and analyze the legal needs of the company and ascertain exactly what needs to be done. This should be a thoughtful and thorough process that may take some time to complete. No less importantly, an analysis of all pending or threatened litigation must be done with the goal of determining how these lawsuits factor into the business goals of the company. For example, is it more prudent to quickly settle a case for nuisance value, in light of the potential precedent? If the contractor is of a sufficient size that its work is regional or even national, would handling one case in one jurisdiction in one manner have a detrimental (or potentially beneficial) effect upon another case in another jurisdiction someplace else? Is the goal of the business better served by taking a hard line stance, realizing that the cost associated with defending a case may far exceed the potential recovery or exposure in the case?
Too many attorneys simply view such pending or threatened litigation as a potential goldmine of fees, with little interest whatsoever in how the lawyer's conduct can ultimately affect the business beyond the scope of those specific lawsuits. It is incumbent upon the business owner to keep this in mind, and working with an attorney who is predisposed to do the same will help the business.
Managing information
In this new millennium, the management of information is becoming incredibly crucial. It will not be long before many businesses realize the crushing power of the courts when they fail to properly manage their information.
Today's computerized world allows for information (and evidence) to be preserved in perpetuity. As everyone knows, when an e-mail is deleted, it is not removed from the computer system. The information in the e-mail still exists somewhere on the disc drive or on the backup tape. Modern litigation has begun to harness this wealth of information, and courts have begun to adjust their policies and procedures to create new protocols for how such information should be used. While these updates to the court rules have helped to reduce the confusion associated with such information management, it has also made it easier for others to venture down that path. As a result, more and more companies are being forced to turn over large amounts of electronic data. More importantly, more and more companies are getting into trouble with the courts when they are unable to turn over this information and risk catching the ire of the court. Such court sanctions in excess of $1 million are not unheard of.
A proactive lawyer will work closely with the company to implement information-management strategies and document retention policies and methodology for the review, processing and production of information. A traditional lawyer would likely be unable to do this. Even if that traditional lawyer were able to do it, the costs would be exorbitant given the amount of retroactive work that would need to be accomplished.
Conclusion
Every business owner should take a good look at the business's attorney. Why is he or she retained? Friend of the family? Fantasy league participant? Country club member? Or simply the attorney that has always been used? If a business is concerned about the performance of its employees, the costs of its materials, the growth of its sales and the performance of its people, why should the attorney not be held to the same scrutiny? If the attorney is not being held to that level of scrutiny, it is the business owner's fault. The good business people will change that and leave their competitors in the dust.
