business law

In the past 10 years, I have had more and more opportunities to use my trial skills to represent small businesses versus large corporations in commercial litigation. A sample of that experience includes:

Antitrust litigation

Association disputes

Breaches of fiduciary duty:

• Partners
• Employees
• Lawyers and others who have a fiduciary duty to the company

Contractual disputes with third party

I find this work fascinating. It is complex and multi-layered. Some of the lessons I learned about representing small and medium businesses are:

Many small businesses wait too long to call an attorney for a consultation. This is generally driven by a cost containment policy. Many times, waiting to involve an attorney ends up being more expensive than an early consultation when problems start to arise.

Contracts are difficult to read and understand even for the most sophisticated small business person. When I was in law school learning about contracts and the Uniform Commercial Code, I remember thinking, “How can you do business without knowing these concepts?” A well-written contract is one that minimizes the risk of a dispute breaking out. It must be concise, clear and reflect the true intentions of the parties. If your business partner or supplier has a contract written by a lawyer, you need a lawyer to read that contract before signing it.

The smaller business sometimes has less bargaining power in a relationship with a large corporation. The large corporation has formal contracts and payment requirements that may or may not be onerous and unfair. A contract is nothing more than an agreed allocation of the risk of the transaction. I enjoy looking at contracts and thinking, “what if this happens under these terms?” It is a vital analysis before signing any contact, no matter how simple the transaction seems to be at the time.

More and more commercial contracts enter arbitration agreements and waive jury trials. Agreeing to this is a business decision, but I have found that many people in small and medium-sized businesses accept arbitration without really appreciating what they are giving up and the cost of arbitration, which can be prohibitive. It’s a bad day at the office when you realize a contract has been breached, but you don’t have the cash flow to pay for the arbitration process that I agree to without knowing how much it would cost.

A fiduciary duty is a very high duty that is owed in a business relationship. If you are a fiduciary, you owe the highest level of care, loyalty and fidelity in law. You must put the interests of the person to whom you owe a fiduciary duty above your own at all times. Knowing whether you owe a fiduciary duty to a business partner or customer is crucial to managing risk.

If you have a business problem or question and want some advice, give me a call and we can discuss how I could help you with litigation or avoid litigation at a reasonable hourly rate and sometimes a contingent fee.