The best legal advice

The purpose of this blog is to give advice to entrepreneurs who are faced with legal documents or issues. And after giving it some amount of thought, and after taking into account all of my legal experience, I zeroed it down to the following:

Hire the best lawyer you can!

Now some of you must be thinking, that’s the most self serving, unhelpful piece of advice to give to an entrepreneur. Well, you’re only partly wrong. So, yes, it is self serving. I am a practicing lawyer and if you take my advice and hire a lawyer instead of having a go yourself, it will help me or other members of the legal fraternity get paid, so in that sense you would be correct. But as far as advice goes, I really think its the best piece of advice that I can give, so bear with me while I tell you why.

To explain the sentence, it is important to break it down. Let’s begin with the first part:

Hire the best lawyer…

There’s more here than meets the eye. As an entrepreneur, or any person handling a legal situation without the requisite legal training, if you can, you should seek legal advice. A lay man would be ill advised to attempt surgery after he’s read a Lancet paper and watched a Ted Talk, and the practice of law is similar. Unless you have the training, don’t try and practice it. If fact, this even applies to lawyers in many cases. There is an old saying that goes “A man who is his own lawyer has a fool for a client“. However, just ‘Hire the best lawyer’ can be bad advice.

Johnnie Cochran, a famous trail lawyer in the United States, was part of the “Dream Team“, a team of very highly regarded lawyers who represented O.J. Simpson in the O.J. Simpson Murder Trail in the 1990s. While the Dream Team cost a pretty penny, These gentlemen did their jobs and got the verdict for their client in what had initially seemed to many to be a difficult case for O.J. Simpson to win. Indeed, Mr. Cochran had a long and glittering career with many high profile successes. This would certainly place him in the league of good lawyers. But if you were negotiating for against the Chinese government for fishing rights in the South China Sea, would Johnnie Cochran have been you first choice? I wouldn’t think so. A lawyer good at one thing may not be good at something else. Best for some, not so good for others. Just as you wouldn’t attempt surgery after a Lancet paper and a Ted Talk, if you need surgery in the heart, don’t get a foot surgeon.

In 2018 I was negotiating on behalf of a private investor looking to invest in a business. The company, on their behalf, had engaged a lawyer who they knew well and who had worked for them in other matters in the past. But there was a problem. While I had had the benefit of arguing this type of contracts for many years, and was not only familiar with the arguments for and against each of the typical clauses, this gentleman was clearly not. As a result, on many of the arguments I had come out on top. As I had, perhaps unwisely, confessed to my client later, it was not that I was a better lawyer, it was simply that the lawyer on the other side wasn’t as well prepared. Now, I have no doubt that the gentleman on the other side is a very good and competent lawyer, and on another matter, perhaps I would not have had it so easy. But on this day and for this matter, I was the better lawyer.

So if you do have a legal matter on hand, don’t just hire any lawyer, hire a good lawyer who has the necessary experience, and is actually good at what you need them for. Whether its for negotiating contracts, dealing with employment laws, or even getting you out of jail (and keeping you out!). If you are going to spend you hard earned money, make sure the person will actually get the job done.

But having said that, we come to the second, and equally important part of the sentence:

…the best lawyer you can!

So, we’ve talked about hiring not simply the “best” lawyer, but instead, the best amongst the right lawyers. But then what does “best” really mean? And more importantly what does best mean for you? There is where it can get a little tricky.

Harish Salve is arguably one of India’s best litigators. While he regularly argues before the Indian Supreme Court, the highest court of the land, he has even been appointed by the Government of India to represent India itself before the International Court of Justice. But even the biggest companies and businesses, who may regularly need the services of litigating lawyers, would be ill advised to retain the services of Mr. Salve for everything. Not because he would not be able to handle the work, if fact he might indeed be very very good at handling the matter, but instead because in most cases it just would not make sense for the client. Hiring the biggest most high profile lawyer, although it may be a ‘good to have’ may not be the best decision. Lets consider the facts.

Firstly, the omnipresent question of costs. If rumors are to be believed, Mr. Salve can, at times, charge fees as high as 10 Crore (100 Million) Rupees, which converts to north of a Million Dollars US, for a single appearance. Any entrepreneur, or even a general counsel of a large multi national, when litigating a claim before a court of law, would be well advised to look at the cost as against the benefits. Of course not all matters are as cut and dry as that. There are often matters and cases where, even though the matter itself is very small, may have damning repercussions in the long run, or adversely affect the reputation of the business. For example, a partnership agreement, or a joint venture document, while initially may not seem like much, ad hence not worth the cost, in the long run can turn very high stakes. Just ask Eduardo Saverin. Also, if something is important to you, don’t let anyone else tell you otherwise. People have gone to war on principle alone, what is one court case.

Second, consider the task itself. If all you need is for someone to draft a one page affidavit, a ‘junior’ lawyer would be more than adequate. Again, Mr Salve, assuming he agreed to draft a simple one page affidavit, no doubt would produce an exceptional draft, but your buddy from high school who has a single room legal chamber in the back of an office complex would also, I wager, do a perfectly adequate job. Similarly while a ‘Tier I’ law firm would probably do a fantastic job of drafting and negotiating your Investment agreement for you, you may not need that muscle for a single page employment letter for hiring a member of the mail room staff. You will find many smaller eager to please law firms happy to do your work for you. In fact, given the trends today, there are an increasing number of ‘Tier I’ trained lawyers starting out of their own, and who will do a great job for you. One caveat through, as with any professional, what you essentially pay for is experience, and in law sometimes, it is that experience that can be invaluable in saving you from some tricky situation arising from some legal twist in the tail. Unless you are confident enough in the lawyer, or in yourself, when choosing between two legal options, I would err on the side of caution. I will do a separate post on Tier I vs Mid Tier vs individual lawyers so stay tuned.

Lastly, availability. You need to have a lawyer who can actually be available to do what you need him or her to do for you. This is a smaller one, but an important one. Lets assume you have a lawyer you like, or a lawyer buddy who is willing or able to help you out legally. But if they just don’t have the time, or the ability to travel, if required, or frankly your work is just not valuable enough for them and its getting pushed down to a less competent junior or associate without the necessary oversight or supervision, then you need to take a long hard look at that arrangement. To be honest, all law firms will use juniors, paralegals and interns, and so long as the work is getting done, that should be fine. But if you spot issues in the work, you should immediately let the senior lawyers know. And also, there’s only so far you should pull a favour. It is a matter of time before a paying higher priority matter will assume more importance than your work, not to mention the fact that as a paying client you can always make demands on your lawyer, that you cant as a friend asking for a favour.

So if you need a lawyer, the best for you to hire is a lawyer, who has the ability will do what you need them to do, at a cost that makes sense for you and your budgets, and will do their utmost to get your job done. This can be critical, especially at the start of your business, which is also unfortunately when your budgets are likely to be the tightest. But as they say, ‘a stitch in time, saves nine’!

So there you go. As I said, I will follow up with more posts that can be used by you to help you be your own lawyer, but that’s the best advice I can give. Till the next post, stay safe and take care.


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