Originally posted 2017-08-14 09:23:21.
For this week’s Guest Post Friday, Musings welcomes back Timothy R. Hughes, Esq., LEED AP. Tim (@timrhughes on Twitter) is Of Counsel to the Arlington, Virginia firm of Bean, Kinney & Korman, P.C. In his practice as a business, corporate, and construction law attorney, Tim has served as the Chair of the Construction Law and Public Contracts Section of the Virginia State Bar. He has served in numerous volunteer, board and leadership roles with many organizations and has been recognized by Virginia Lawyer’s Weekly as a 2010 “Leader in the Law”. A regular speaker and writer, Tim is the lead editor of his firm blog, Virginia Real Estate, Land Use and Construction Law.
The last Musings post resonated with me on a very important point: you do not want to contact your lawyer too late in the game. Many people do not like talking to lawyers … we have a reputation (well earned by some) of being difficult, confrontational, obtuse and expensive. Many clients only call their lawyer when they are actually sued and absolutely must retain counsel. This is a very bad approach: your case is most often won or lost based on documents, facts and positions taking during the project. It is far more cost effective to involve counsel earlier in the game.
Even better, lawyers can provide the most cost efficient advice by helping you structure your business correctly, obtain proper licensing, and draft solid contracts. Especially in Virginia, your contract terms are critical to defining what happens in court. Drafting a solid contract form and using that contract is a great risk management tool and not an expensive investment. Incorporating and minimizing or eliminating personal liability is really inexpensive and a huge potential benefit.
Contrast that with calling too late. I have received many calls on cases where new clients did not incorporate. Clients have used weak contracts or even no contracts. Clients have moved forward on game changing critical elements of projects with no documentation. Clients have failed to reply or rebut highly inflammatory project correspondence that mischaracterizes events. Trying to use verbal testimony years later to rebut a letter during a project is a very tough sell to a jury. Engaging counsel too late means you are taking on tremendous risks and actually driving up your ultimate exposure and legal fees.
The real question of reluctance to call your lawyer may stem from a lack of trust and confidence. Clients should feel their lawyer has their best interests in mind, is concerned with the relation of costs and benefits, and adds value. Ultimately, this question may hinge on selecting the correct lawyer.
One of the more rewarding aspects of practicing law has been developing clients who came across my doorstep with significant corporate, contract and liability issues and helping them evolve into proactive risk managers. Involving a lawyer as a trusted business advisor from the start of the business or as early as possible is ultimately the most cost-efficient way to hire counsel. It is a lot cheaper to have a good contract than a bad lawsuit. This is not to say that a good contract ensures no suits or victory, but it does help set the playing field. It does establish significant advantage and leverage to resolve issues before they erupt.
Tim and I welcome your comments below. Also, please subscribe to keep up with this and other Guest Post Friday Musings.
