After spending nearly three years at Barnes & Thornburg's Atlanta office, I have begun a new chapter of my career and have joined the Atlanta office of Thompson Hine LLP as a partner. This is a very exciting and important change for me for two primary reasons.
First, the Atlanta office of Thompson Hine is managed by Russ Rogers. Russ is an old and dear friend who began his career in Atlanta working for me as an associate at Long Aldridge & Norman in the 1990s. Russ was the best lawyer I ever worked with, and we had a great deal of success as he rose through the ranks and made partner. Even after Russ made partner, we continued to work together when possible. After we both concluded several years ago that our careers were better served by joining other firms, we continued to collaborate. Russ and I had always hoped that we could end up practicing under the same roof again, and the stars finally aligned to make that possible.
Second, although a large part of my practice involves advising business clients (many of which are international companies) on sales contracts, non-disclosure agreements, insurance, risk management and other matters, I continue to concentrate on complex commercial litigation. I began my career as a litigator, and litigation, arbitration, mediation, and dispute resolution are mainstays in my practice. Thompson Hine's Atlanta office has over 15 lawyers who focus on litigation at many different experience levels. For the past several years, I have lacked support from senior associates and junior partners on litigation matters. It is important for clients (and for me) to have reliable back-up. Thompson Hine provides that.
This change should in no way be viewed as a knock on Barnes & Thornburg. It is a great firm, and it has been a great place to work. I have many friends at BT and hope to be able to work with them in the future. It simply boils down to a judgment that, at this point in my career, and given the mix of attorneys at the respective Atlanta offices, Thompson Hine is a better fit for me.
In terms of what I will be doing, the focus should be largely the same: Representing domestic and international companies in business matters, and also focusing on commercial litigation, arbitration, mediation and dispute resolution. My litigation practice will continue to involve disputes involving insurance coverage, trade secrets, municipalities, financial institutions, contracts, corporations, LLCs, shareholders, and other matters.
I do look forward to working with younger attorneys, and serving as a resource for them, while they serve as a resource for my clients and me. Over the years, many younger lawyers I have worked with have matured into really fine attorneys. Playing just a small part in their success is very rewarding. I really look forward to returning to being a teacher and mentor, which is exactly what I should be doing at this stage of my career.
My friend and partner from BT, Roy Hadley, is also joining Thompson Hine. Roy works with some of my clients, and I work with some of his. Roy will be a strong addition to Thompson Hine's corporate and technology teams, and will ensure that my business clients also have support and back-up.
In addition to Russ, I know many of the attorneys in the Thompson Hine office, and all of the people at the firm have been very supportive and welcoming. It already feels like home.
Last week, LexisNexis, the large legal publishing company, published a white paper that I wrote on strategic considerations in business litigation.
A copy of the white paper can be accessed through this link.
As the calendar turns to a new year, it is a good time to review your company's legal needs and circumstances. Let's begin the discussion by remembering the Prime Directive that it is almost always less expensive to resolve a legal issue early on – such as through a proper contract prepared with professional assistance – rather than trying to fix the issue later through litigation. If you have a business attorney, this post will cover some of the items that you may wish to cover in an annual legal review. If you do not have a business attorney, perhaps the list of items will encourage you to find and hire a good one. If you do not know how to find one, the Insider's Guide will explain the process.
Here are a few of the items that should be considered during your legal review:
Please note that this is not intended to be a complete list. What makes the most sense is to have an annual legal review with your business attorney. Of course, in order to do that, you need to have one. If you do not have a business attorney, the Guide will help you find a good one.
- Has your business properly maintained its registration with the secretary of state or other authorities? It is surprising how many companies fail to maintain their annual registration and have been administratively dissolved. The result? Possible loss of the corporate shield against liabilities. Most of the time, reinstatement is possible, but you will need to act quickly.
- Does your business maintain proper corporate or company records? Does it have corporate minutes, minutes of shareholders' meetings, or resolutions in lieu of meetings? Many businesses fail to maintain these basic documents, which again places the corporate liability shield at risk.
- Does your business properly maintain separate financial and other internal records? Are loans from shareholders or members properly documented? Do you have more than one company, but their records are intermingled? Are bank accounts properly kept for each entity without intermingling funds? Are proper and separate financial and accounting records kept? Again, the failure to maintain and document separation of company business from personal business, or the business of other companies can place the liability shield at risk.
- Does your business properly document its contracts? Does your business have contracts, or at least terms and conditions, for every transaction? Do these documents protect your company against making unintended warranties and other consequences? Have the terms and conditions been professionally prepared? Have they been reviewed recently?
- In reviewing your contracts, do you have proper contracts in place for subcontractors and suppliers? Do these contracts have proper provisions in place to make sure that your subcontractors and suppliers warrant their products and services?
- Does your business have procedures in place for handling and documenting potential claims? Are potential claims reported to your insurance company? Failing to report claims promptly may result in the denial of coverage.
- Have you reviewed your insurance coverage lately? As a general matter, commercial general liability ("CGL") coverage is becoming more restrictive and insurers are trying to force companies to buy specialized coverage, such as environmental liability, professional liability, and cyber liability policies. For more information, you may want to check out my insurance blog, which can be accessed here.
- Does your business have in place procedures for protecting confidential information and trade secrets? This concern applies not only to your own confidential information, but confidential information of other companies that your company may handle, such as customer information regarding orders.
- Are employees who handle the information subject to non-disclosure agreements? Have the non-disclosure agreements been professionally prepared? Have the non-disclosure agreements been kept up to date and reviewed recently?
- Do you have other appropriate agreements with key employees? Do you have covenants not to compete? How about covenants not to solicit your customers if the employees leave? If so, were the covenants not to compete professionally prepared? Have the covenants been reviewed recently? In Georgia, for example, there was a substantial change in the law effective two years ago that should be considered.
- Do you have procedures in place to comply with legal obligations regarding employment? Do you have a company employee handbook? Do you have procedures for dealing with employee complaints?
Note: This rather lengthy post was first published on the Machinery Law Blog, another blog that I write. However, since some of the content was based on comments in an Insider's Guide, I thought it might also be of interest here.
I started my career in general litigation and over the years have litigated just about every type of civil case. Although I now also advise businesses (particularly international machinery and equipment companies) on business matters and minimizing the risk of litigation, litigation remains a large part of my practice, now focusing on insurance coverage and large commercial cases.
I love the challenge of litigation, including learning new subjects, developing strategy, and, hopefully, winning. At the same time, litigation is an expensive, time-consuming, and often risky proposition. Thus, most of the posts on this blog focus on minimizing risk and avoiding litigation. (For purposes of this post, the discussion also applies to arbitration, although there are differences).
Even if a company takes all precautions, the simple fact is that it may become involved in a dispute that may lead to litigation. Such a dispute may cause your company to consider filing a lawsuit, or you may find your company on the receiving end of a lawsuit. If you find yourself in a dispute that may lead to litigation, make sure you are being advised by a litigator (an attorney who regularly handles litigation), and listen to the litigator.
These points may seem obvious, but are not always followed in practice. Many companies use a corporate (transactional) attorney as their primary legal adviser. For most purposes, a corporate attorney can be an excellent trusted adviser, but not for litigation. In my book, An Insider's Guide on Hiring a Business Attorney, pp. 42-43, I offered the following reservations about corporate attorneys when it comes to advising clients about disputes:
"First, purely corporate attorneys tend to put complete faith into contracts and documents."
"Second, for reasons I honestly cannot fathom, purely corporate lawyers almost always overstate what can be achieved in litigation."
Let's expand on these two reservations. On the first reservation, first, let's be clear: Properly drafted contracts and legal documents are very important. Having proper contracts and documents substantially decreases the risk of getting into litigation. Further, if your company becomes involved in litigation, properly prepared documents will strengthen your case greatly.
But no contract can prevent the possibility of litigation. Opposing litigation attorneys are experts in crafting arguments supporting a contrary view. In the past, this was called finding a "loophole." Most corporate attorneys are not trained or experienced in responding to these types of arguments, and complete blind faith in documents is rarely warranted.
On the second reservation, yes, it is true. Corporate attorneys almost always overstate what can be accomplished in litigation. When my book came out, I received an email from an experienced in-house litigation attorney stating that truer words were never written. Again, I am not sure why this is the case, but it is.
There have been many times I have had to talk a client off the ledge, so to speak, regarding a possible litigation matter that the client had already discussed with a corporate attorney. The conversations tend to go something like this.
Client: "Joe [fictional corporate attorney] tells me we are certain to win and we will make them pay your fees in defending the case." The reality is that there is always some uncertainty and that in the U.S. attorney's fees are rarely awarded in most jurisdictions.
Client: "Jim [fictional opposing party] says we promised him this order. That's just a lie and I'm not going to pay a liar one red cent. Joe [corporate attorney] says we are not going to let Jim get away with it." When the conversation turns to how to prove that Jim is a liar, there may be no documents contradicting Jim (or, worse yet, documents that seem to support Jim's version). It may also turn out that the employee who dealt with Jim has left the company or has been terminated. In other words, Jim may indeed be a liar, but proving it will be a challenge.
Client: "We've done business with Joe and your firm for many years. I would rather pay you to beat them than to pay them a dime." It is always a good thing to have a client who is satisfied with the firm and committed to the case, but clients almost always underestimate the expense of litigation, and, perhaps more importantly, the disruption litigation will cause to their business. Instead of devoting time to productive activities, clients must spend time assisting in gathering documents and responding to discovery, sitting in depositions, and devoting their mental resources to litigation rather than business.
Advising a client who is enthusiastic about litigation (often as a result of comments made by a corporate attorney) is a tricky business. It is important that the client understand the cold realities of litigation. It is also important that the client understand that, if litigation proceeds, you will do your absolute best (within ethical boundaries, of course) to fight for the client to win.
Important warning about some litigation attorneys: If a litigation attorney is enthusiastic about talking you into litigation and does not mention the uncertainties, costs, and limitations of litigation, be very careful. Such attorneys are probably more interested in their business development efforts than the best interests of your company. Look for a balanced evaluation. Look for someone who lays out the risks, benefits and costs of proceeding with litigation, along with the practical effects of litigation. Look for someone who is more interested the law firm's long term relationship with your business than in making a quick fee by rushing to court. If an evaluation does not seem balanced, seek a second opinion.
The other point made at the outset of this post is to listen. After an experienced litigator understands the facts, he or she can usually give a fairly accurate prediction of the likely outcome, or at least the range of likely outcomes. Using this knowledge can lead to an early reasonable settlement, which can save tens or even hundreds of thousands of dollars in legal fees. Although a litigator must always be prepared to take a case to trial if necessary, the reality is that 96 to 98 percent of civil cases settle. Because is it likely a case will settle at some point, realistic early case evaluation can lead to a prompt and fair settlement and save thousands of dollars in legal fees, and avoid the disruption of litigation.Clients who do not listen often spend more than is necessary, and sometimes a lot more. Although there have been others over the years, one case stands out in my mind where we told the client early on exactly how the case would come out, gave the client a reasonable range for settlement, and advised the client to settle. The client wanted to fight. Along the way, there were multiple times when the chances of reaching a more favorable settlement were good. The client refused to budge. Finally, after some rulings on motions that came out exactly as predicted, the client finally settled. We could have gotten the same (or better) settlement early on and saved the client thousands of dollars.Sometimes, even despite taking all efforts to minimize risk, litigation cannot be avoided. In such circumstances, seek advice early on from an experienced litigation attorney. Understand the process. Seek a second opinion if necessary. It will likely save your company considerable expense, disruption and aggravation. And, if circumstances make a fight unavoidable, you will have someone ready to take action.
The United States remains a large and attractive market for international companies. International companies thinking about coming to the U.S. often make the fundamental mistake of assuming that the way they do business at home will work here. Things are different here, particularly regarding legal issues. I recently wrote a legal guide for AVVO addressing some of the key issues. The first point is hire an experienced business attorney with experience in your industry and in dealing with international companies. Click here to read the guide.
This week, Tom Chorey, Tom Gallo and I left Chorey, Taylor & Feil, P.C., to join the Atlanta office of Barnes & Thornburg LLP. CTF was a small firm that had about 15 attorneys. BT is an Am Law 100 firm with about 540 attorneys, although only about 20 in the Atlanta office.The Insider's Guide has a chapter addressing the strengths and weaknesses of large firms vs. small firms. Many of my friends will probably be surprised to see me return to a large firm environment.If you are interested in why, you might want to read my latest post in another blog. Chick here.
Unfortunately, the bad guys are still out there. Click here to read my most recent blog post on this subject, which also offers some ideas about how to deal with them.
The Guide is now available on Amazon.com! Many readers enjoy the fast and reliable service that Amazon provides (I know I do; I am one of their "Amazon Prime" customers!). Our home page contains a link to purchase on Amazon, or you can just click HERE.
The Guide is finally available! I had hoped for late April, but, it took until early May. I have learned that writing a book is kind of like a construction project: It always takes at least 20 percent more time and money than you could have anticipated. In any event, I'm glad it is finally done, and I hope it will be a valuable resource for business owners and executives who know they need to have a good business attorney, but have no idea how to find one.
As this post is written, it is an amazingly beautiful day in Georgia. The third round of the Masters, a legendary Georgia event, will start shortly.
I wish I could say that the Guide is done and ready for purchase. I have submitted what are hopefully the last set of revisions, and hope to have the book available for purchase by the end of April. Please check back. The Guide should be available shortly. Please also check back for blog posts on subjects of general business interest.