One mistake I see people making too frequently is selecting the wrong lawyer for their business. I have lost count of the number of people who’ve come to me, very unhappy with their previous lawyer. Often in my situation, because I do intellectual property and commercial law, it would be somebody who needed an IP specialist and went to a general lawyer only to find out that they couldn’t help.
The worst example I came across of this was a client of mine, Carly, who went to a general commercial lawyer about some designs that she was creating. She had a friend involved in the business as well and she said to the general lawyer, what should I do about the intellectual property ownership of these designs? Now Carly had spent 20 years as a flight attendant on airplanes and was obsessed with luggage. What Carly had done is that every time she saw a piece of luggage or something luggage related, that she liked or that was causing a problem that she didn’t like, she would make a note. She ended up, after 20 years, with this notebook full of fantastic ideas and things to avoid.
From this, she was able to come up with some incredible luggage designs, while her friend was the artist and drew the images. The advice that Carly got from somebody who knew nothing about intellectual property was “don’t worry about intellectual property ownership issues until you’re making a profit.” So she didn’t. Then a year later, they were starting to sell some of the products and Carly’s friend bumped into an IP lawyer at a barbecue, the IP lawyer said to her, “Oh, you might own the IP in those designs that you drew for your friend.” Even though Carly was the one who had the ideas and just didn’t know how to draw it.
It was a complete disaster, the friend ended up suing Carly and I suggested to Carly that she just drop the whole thing. I was very concerned about the amount of money that it was gonna cost to defend, so I said to her, “you’re so creative, you can create another 20 designs without even blinking just let her have whatever has already been created, even though you are probably the true owner.” Carly decided no, she’s been twenty years planning this, she is not gonna give it up, then what happened?
She got sued and spent too much money on the legal fees. Then she ended up very distracted from her business, so she didn’t fill the orders that she was supposed to fill. She ended up owing suppliers and then was unable to pay them. She found herself having to drop the court case half way through, forfeiting it. So she lost the case, then because she couldn’t pay her suppliers as a result of the court case she ended up going bankrupt and lost her house. That is the worst example that I’ve seen but I’ve seen other examples as well.
Just this year a client came to me, she had a potential trademark dispute brewing and she wanted to know whether or not she could use a particular name. She’d been a distributor and now was branching out on her own, and she wanted to avoid at all costs. She wanted to know if a new name she’d come up with was acceptable, or was it gonna lead to a problem? She went to her divorce lawyer because that was the only lawyer she knew and she asked for the lawyer’s advice. I can’t tell you what the name was because of confidentiality, but basically the name had two words. So, for example if it was ‘Blue Zoo’, she decided she wanted to go with ‘Zoo Blue’ so she inverted the two words.
When she came to our office she spoke with my business partner who’s my husband, and within two seconds he said no, it’s too similar. She said “but my lawyer said it was fine,” down the track now, six months later, she got a letter of demand from her previous supplier suing her for trademark infringement. So my business partner called me and said, “could you just give me a second opinion, I’ve got this client sitting here and I’m confident with what I’ve said but she’s already had an opinion from another lawyer and she’s not sure about what I’m telling her.”
So I had to look at it and I said no, it’s obviously going to be a trademark infringement, you cannot use the name. She said, “oh, but my lawyer said I could,” and I asked her if her lawyer is an IP expert, and she said “no, he’s my divorce lawyer.” So the lesson from that, is number one, make sure that the lawyer you choose has a speciality in what you’re doing. I know that sometimes lawyers will do a little bit of something. So they might have done a little bit of tax but they’re not a tax lawyer. So, the question to ask, and it’s perfectly acceptable and quite sensible to interview your lawyer before you decide to go and see them. Is to ask what experience they’ve got.
For example if you were coming to me and you said, I’ve got a question about tax, I would immediately say no, I don’t do tax. But if you went to a general lawyer who does everything, remember you’re getting a generalist not a specialist. So find out what they’re experienced in and when it comes to, for example IP, how many trademarks have they actually registered, how many trademarks have they been up in court defending, and how many of those cases did they win?
I had a client who employed a lawyer who is a general commercial lawyer, but did some trademark work and they were perfectly capable when things didn’t go wrong, but if something went wrong then they found it quite tricky. So if you’re looking for a specialist make sure you’ve got a real specialist. For example, in my 20 years I’ve got registration of over 1,000 trademarks. So it’s the depth of experience that you’re looking for, but also is the person you’re going to, the kind of person you can connect with?
My client who’s a doula came to me and she said, I fired my other lawyer because he didn’t even know what a doula was and he did my terms and conditions. How can anyone draft terms and conditions for you if they don’t understand how you work with your clients and don’t understand your business? Are they just gonna give you a standard form of terms and conditions? because if they are, you might as well just download them off the internet.
Not that I think standard form terms and conditions are the way to go, I think there’s a lot of potential problems with them. But this is what you need to ask, and yes, lawyers will work from precedents, they will work from documents that have worked before. I do that as well, I take parts of documents that I’ve used before because that’s sensible. If you know that you’ve got a dispute resolution clause that’s worked well in the past. you use it in the future. But your document shouldn’t be one big template, I see the terms and conditions as a way to connect with your clients and to tell your clients something about you.
So find out how the lawyer works, how do they communicate? Are they gonna charge you 300 dollars every time you need to speak to them on the phone? Can you send them emails that they’ll reply to? Is that included in the cost, or are they gonna charge you 300 dollars for every email? The way that I work, for example, is I like to do an all-inclusive cost where I can, and then within that case the client knows that they can ring me anytime on their case, they can send me emails anytime on their case, up to a certain point. Such as if I’ve answered those questions in previous emails. But it’s really important to know that you can work with and trust that lawyer that you’re engaging.
Some people prefer a lawyer who’s not gonna be that much involved and interested in the business. They just want a cold clinical approach and the lawyer just gets it done. So it depends on what your personality is. Personally, I like to know what my clients are doing, I like to go on their websites, I watch their videos, I get a bit involved, I find out what their personality is like, those kinds of things. Whereas, some people prefer more of a distant traditional legal approach, which is fine. Whatever’s gonna suit you is what you need to go with.
In a way it’s almost like choosing a business mentor, what would you think about when you choose a business mentor, what are those qualities in that other person? That’s what you go with, so don’t think that when you choose a lawyer, you need to choose whichever one comes along. Shop around, but don’t always go with price. The most expensive person might not be the best fit for your particular problem or your particular business. Find out how they like to communicate, some people prefer always phone calls, some people prefer always emails, and it makes a difference. Find out how busy they are, how quickly can they do what you need done?
One of the other important things is, I find it’s better to have a relationship with the lawyer, get to know them a little bit. So that if things go wrong or if you need help, then you can easily contact them and they will be able to respond quickly and effectively for you. I think about it like this, when you’re traveling, if you were in a foreign country, or even a different city and you get a toothache. You don’t know which dentist to go to, you don’t know who’s gonna be good, who’s gonna not cause you too much pain, who’s not gonna charge you too much money.
But if you have a dental problem when you’re at home, which happened to me a couple of weeks ago, I rang up my dentist reception, her name’s also Catherine, and I said, “Catherine, oh I’ve got a tooth that’s killing me.” She said “we’ll open up an appointment can you be here within two hours?” Absolutely. So the benefit of getting to know somebody, who could be your lawyer later is if you do have an emergency then you can truly know that they’ll be there for you.
So those are a whole lot of things you need to think about when choosing a lawyer. Personality, communication, field, what their speciality is, availability, and getting that connection before things go wrong. I am Cathryn Warburton, the Legal Lioness and I wish you luck with choosing the best lawyer for your business.