I would like to thank my colleague Linda Hatcher for this week’s legal portion.
1. Get The Parties Right. The names used for the parties should be their actual legal names. If a party is an individual, use the full legal name of the individual. If a party is an entity, use the name of the entity as registered with the state in which the entity is organized. If that entity operates its business under a fictitious name (commonly referred to as a “dba,” which stands for “doing business as”), then include the fictitious name, too. For example, “ABC Company, Inc., dba Westside Services Corp.” If your business is organized as an entity (e.g., a corporation, a limited liability company, a partnership), be sure to use your entity name for the contract, rather than your individual name, in order to control your personal liability exposure and to assure the related rights, interests, and obligations are properly in the name of the entity.
I would like to thank my colleague Bruce Dizenfeld for this week’s legal portion.
Although it is a good idea to engage an attorney as early as possible once you have an idea for a contract, venture or have a claim or controversy, that does not mean that you should actually turn to your lawyer with all of your questions. As a practical matter, your attorney is likely one of your most expensive advisors and should be used sparingly and only when the issue or action requires their specific skills.
I want to thank my colleague, Scott K. Behrendt, Esq., for this week’s legal portion.
Whether you are a business owner, executive, corporate in-house counsel, investor, consumer, or otherwise, the importance of getting the most mileage — and value — out of the attorney you have selected to represent you in a legal matter cannot be overstated. Here are some basic concepts to keep in mind to help ensure that you, as the client, are receiving the highest level of service and attention from your attorney throughout the course of the legal engagement.
Everyone: beginning this week, I will be making two changes to the blog. First, you will be receiving it in this format rather than by complete email, as I have had a lot of distribution issues. Second, you will now be receiving it every other week instead of every week as I do not want to overburden anyone.
I want to thank my colleague, Anthony “Tony” Witteman, for this week’s legal portion.
Whether it is personal or business, if you have just been served with a lawsuit seeking damages one of the first things you should do is examine your insurance policies to determine whether there is a “potential” for coverage of the claims asserted in the lawsuit. Even better, for this exercise you may want to utilize the services of an attorney who specializes in representing policy holders so as to maximize the chances that the insurance company will respond positively and promptly.
I have seen on multiple occasions through the years employers making the big mistake of acting defensively and not terminating someone for whom they have cause when they should. Instead, they keep that person around either because they feel bad, don’t like confrontation, are afraid of litigation, or to develop more cause. Or they try to get the employee to leave on his or her own. Then, in order to help the employee decide on his or her own to leave, the employers do things like reassigning the employee’s good customers or accounts if the employee is on commission, giving the employee a smaller office on a different floor or in another out of the way location, imposing more rigorous reporting or administrative obligations on the employee or just making the employment experience for the employee more unpleasant in general. None of these things are good ideas and I have seen more than once these types of actions by an employer result in viable constructive termination or retaliation claims.
Thanks to my colleague Howard Unterberger for this week’s legal portion.
You’re a doctor forming a medical practice which you’ll manage and which you’ll own jointly with several of your colleagues. You and several friends are forming a partnership to purchase a rental property. You’ve obtained a loan for your business which you’ve agreed to repay, in part, with a percentage of your profits.
What do these and countless other similar situations have in common? In each case, you are issuing a security. Many people believe that the securities laws just cover stock issued by corporations, and they’re quite surprised to learn that many seemingly routine business transactions are covered as well. A security, under both state and federal securities law, can include any investment made with the expectation of making a profit from the efforts of other people.
Thanks to my colleague Bruce Dizenfeld for the legal portion this week.
Hiring an Attorney
We don’t often get the chance to provide general advice on when someone should look for a business lawyer. Once a client has been referred to us, our focus turns to addressing the situation presented. I was given the opportunity recently to write a chapter for an independently published self-help business book THE Book on Business From A to Z The 260 Most Important Answers You Need, published by Build It Backwards Publishing (which happens to also be a client)–[see www.BuildItBackwards.com.]. The format of the chapter I wrote involved addressing 10 general questions a business executive or entrepreneur should consider when looking for a lawyer. What is included here is an excerpt from that chapter. Other excerpts will be included in this blog in the future. If you are interested in reading the entire chapter or the book, just click the above link.
When do I need to hire an attorney? When you have a legal question or problem you should look for an introduction to an attorney. Attorney time can be expensive so you should not engage an attorney until you at least have an idea of what you want to accomplish. However, once you can express what you have in mind as a business objective, it may be beneficial to speak with several attorneys. Use this interview process to get feedback on your plans, as well as to evaluate whether you want to work with the attorney you are interviewing.
Welcome to my weekly blog. The first portion will be the legal portion; the second will be the baseball portion. Hope you enjoy.
Recently, I attended a national Health Care seminar where I was surprised to hear multiple health plan in house counsel express their preference for the court system over arbitration for the resolution of their business contractual disputes. In California at least, I believe that such a view would be in the distinct minority, particularly if your organization is the one being sued.
The decision almost always is made at the time of contracting, although it also can be made after a court proceeding has been commenced. The primary factors that need to be considered in choosing arbitration or the court system are the nature of your business, subject matter of the dispute, control/surprise avoidance, cost and appellate rights.
If you are in the court system, you are looking at a jury trial unless you are excepted or all parties agree to waive. In California, certain types of businesses simply can’t get a fair jury trial or have an uphill battle from the start. I include in those categories a health plan being sued by a hospital, a lender being sued by a borrower, attorneys being sued by their clients and employers being sued by their employees. That is why those disputes generally resolve via arbitration as opposed to the court system whenever possible.