How to Choose a Mediator
The right of self-determination in mediation, and the parties’ first attempt at collaboration, starts from the decision to mediate (if not mandated by an agreement, order, or statute), and from the act of choosing an appropriate mediator. Their right to self-determination on the issue of choosing a mediator, whether that choice is based on cost, qualification, experience, ability, effectiveness, or on any other basis, is critical to framing the mediation and to their hopes of success. Therefore, it is very important that the mediating participants are comfortable with the choice and that they are confident that the mediator of choice will be able to help them resolve their dispute in an effective, compassionate, and thoughtful way, and at a reasonable price. If there is any degree of discomfort, regardless of the reason, it is the right decision to look for another mediator. Here are some of the issues the mediating parties should consider as they consider who to choose as their mediator:
The mediator should have more than one tool in his/her tool belt. If he/she only has a hammer, then he/she may only see nails. For example, your mediator should be knowledgeable and skilled at various conflict resolution models, including, but not limited to the following:
The Thomas-Kilman Conflict Resolution Model – The mediator should understand the conflict between negotiating parties’ desire to satisfy their own interests and concerns, and the interests and concerns of their counter-part. This requires an understanding of the five basic conflict resolution styles used, the pros and cons of using them, and how to help the parties navigate from one to the other. The five styles are: 1) Competition; 2) Avoidance; 3) Accommodation; 4) Compromise; and 5) Collaboration. A skilled mediator will be able to recognize the style being used and help the parties move from Competition to Collaboration, which dramatically increases the likelihood of reaching an agreement at mediation.
The Conflict House Model – The mediator should understand how to help the parties have difficult conversations in a constructive way without alienating each other with trigger words or acts, attacks, micro-aggressions, etc… Using this model, a skilled mediator will be able to help the parties, and their lawyers, set a constructive and positive tone before the mediation starts in a confidential pre-mediation conference. Done effectively, on the date of the mediation, the parties can avoid derailing the mediation, and the opportunity to reach an agreement, at the beginning of the process.
The Empathy Model – The mediator should understand how to help the parties recognize their inherent empathy for the other parties, and build on that empathy and understanding. If done effectively, throughout the process the increased empathy will help the parties focus on the critical underlying interests, as opposed to positions. This also accelerates the potential for an agreement.
The Value Creation Model – The mediator should understand how to help the parties use the information they know about each other, and that they learn during the mediation process, to create a value proposition that will help the mediating parties do the jobs they have to do regarding the conflict, reduce the pains experienced, and increase the opportunities for the mediating parties to get the gains they want.
The Speed of Trust Model – The mediator should understand that trust has several waves, including self-trust, relationship trust, organizational trust, market trust, and societal trust, and how to help the parties demonstrate: 1) their integrity while acknowledging the other side’s integrity; 2) their intent in a constructive way while seeking to understand the other side’s intent without attacking or feeling attacked; 3) their capabilities and the other’s side’s capabilities, and hone in on the relevance; and 4) the ability to produce results on both sides, which is critical to an effective mediation agreement.
The Behavioral Model – The mediator should understand how his/her behavior and the behavior of the mediating participants affect the mediation process, and consciously work towards modeling the right behaviors, and encouraging the same with the mediating parties. Here is a list of the behaviors:
Taking Straight
Demonstrating Respect
Creating Transparency
Righting Wrongs
Showing Loyalty
Delivering Results
Getting Better
Confronting Reality
Clarifying Expectations
Practicing Accountability
Listening First
Keeping Commitments
Extending Trust
Inspiring Trust
The Action Plan Model – The mediator should understand how to help the parties create a reasonable and workable action plan.
The Transformative Model – The mediator should be able to help the parties transform from feeling victimized to feeling empowered during the mediation process. This is critical, as mediation is based on self-determination. A good mediator will understand how to help the parties transition from the feeling of being a victim to the feeling of empowerment, which helps them move from competition to avoidance, to accommodation, to compromise, then finally to collaboration, which may mean that the mediator has to be skilled at helping the parties move through the 5 steps necessary to get there.
The mediator should have a high degree of emotional intelligence. The mediator should be able to regulate his/her own behavior in such a way as to take a leadership role during the mediation, understand how to regulate his/her relationship with the parties and their counsel, and help the parties regulate their relationship so that they do not alienate each other, but work constructively towards a common resolution.
The mediator should have relevant and extended experience as a mediator. A novice mediator, including a mediator who is transitioning into mediation as a second career (such as a retiring attorney or retiring judge), usually does not have the knowledge, skills, experience, and abilities to be as effective as a mediator who has been mediating for several years. In their professional life cycle as a mediator, they are, in essence, baby mediators. While these mediators may have the core subject matter knowledge and experience, they still need to develop their mediation knowledge, skills, and abilities to be effective. Ideally, the mediator should be entering the prime of his/her professional career as a mediator.
A mediator with some gravitas can be useful. An experienced attorney, a retiring attorney or retiring judge may have the gravitas built up from their years of experience and/or former profession, which can be helpful to instill a sense of confidence in the parties and their lawyers. This gravitas can be especially helpful in cases where the parties are looking for “parental” guidance in the processor will rely on the mediator for an evaluative approach.
Consider the value of using a mediator that will give you the best chances of resolving your dispute before going to court. Paying a “good” mediator a higher rate before litigation can save tens of thousands of dollars in litigation costs. A day of mediation can cost the parties approximately $2,000.00 each with an experienced mediator who charges $500.00 per hour, whereas prosecuting and defending a lawsuit usually ranges, at the low end, $25,000.00 in lawyers’ fees, plus costs (including another mediation before trial). Litigation costs can easily exceed $100,000.00, depending on many factors, before a final resolution. In addition to the financial costs, there are emotional costs, lost opportunities (opportunity costs), and loss of time, and relationship loss, which can compound the “expense” of litigation.
When lawyers in a case choose the mediator the lawyers should fight the urge to use a colleague or friend as a mediator because of their personal or professional relationship, and should, instead, focus on the above factors, and other relevant factors such as subject matter expertise.
For more information on how to choose the right mediator for your case, how to become a mediator, or how to develop the knowledge and skills you need to be effective in mediation, please email me at attorneypersad@cplspa.com. I am also available to mediate your cases.
Business Consulting
Future Pacing – Working on the New You
“Failing to plan is planning to fail” – Benjamin Franklin
Entrepreneurial and life goals coincide in ways many other goals do not. For entrepreneurs, their life goals are tied to their entrepreneurial dreams, and these goals take the entrepreneur and her family for the ride of their lives. At the beginning of the journey a flood of positive emotions of hope, dreams of making it, feeling of independence, and excitement engulf the entrepreneur. In the first leg of the journey, some pain sets in as the realization of the limitations on resources set in; time, money, necessary relationships, are just three of the hurdles entrepreneurs face during this stage. In the second stage of the journey, the entrepreneur starts to experience enhanced pain and doubt raises its ugly head. If the entrepreneur does not have a good consultant or coach to help navigate the phases of the entrepreneurial process, the doubt grows into a crippling fear, devastating the entrepreneur and, many times, family members.
Future Pacing – YOU 2.0
Skilled consultants and coaches have many tools in their tool belts to help budding and seasoned entrepreneurs. One of the most important tool is FUTURE PACING the entrepreneur to help her create a vision of herself 10 years into the future (YOU 2.0), and helping her build a bridge from now to then. Since the entrepreneur’s business is usually an integral part of her vision of herself, it is necessarily included in the journey from YOU 1.0 to YOU 2.0.
The process begins with the consultant/coach helping the entrepreneur create a detail vision of YOU 2.0 self. This includes the creation of an avatar for the entrepreneur that encompasses her YOU 2.0 physical self, emotional self, spiritual self, the knowledge she has accumulated, the relationships she has, her home, her business, her skills, and everything else that she envisions herself being. Once done, the consultant/coach helps the entrepreneur to reinforce this idea of her YOU 2.0 so that it become her life ultimate mission. The process then turns to an assessment of the entrepreneur’s personal development matrix, so that she can take an honest look at herself. The matrix analyzes the entrepreneur’s core knowledge, skills, abilities, disciplines, dedication, focus, beliefs, values, health, experiences, rules and relationship with herself. The result is usually a clear understanding of the entrepreneur’s personal strengths and weaknesses. This can be an eye-opening process for entrepreneurs, and serve as a “reality check.” Simply put, if you do not know where you are, it does not matter where you are going.
After the personal assessment is complete, the consultant/coach then helps the entrepreneur focus on developing a current relationship matrix. The focus here is primarily external with a focus on the entrepreneur’s relationships, finances, physical assets, other resources, opportunities, and external threats or roadblocks.
With a good understanding of the entrepreneur’s current state, the consultant/coach can then move onto helping develop a future identity, her YOU 2.0 (usually 5 to 10 years in the future). Once this future identity is developed, and the entrepreneur has a vivid image of her future self, she works with the consultant/coach to set reasonable and realistic goals each month and year (with yearly themes) which, once achieved, will get her that much closer to her YOU 2.0. As she travels through the process, she transforms into the version of herself she sees, and consistently re-evaluates her YOU 2.0, upgrading her model self annually, chasing her future with relentless passion.
This passion and thirst for growth and development spills over into the entrepreneur’s business and family, so they all grow together, consistently helping each other reach their YOU 2.0.
Future pacing is just one of the planning tools offered by Business and Executive Coaching Consultants at CPLS, P.A. as a part of our Private Corporate Counsel program. If you would like to learn more or set up a consultation, give us a call at 407.647.7887 or email me at Attorneypersad@cplspa.com.
Mediation and Negotiation Tip
Number 2
Emotions and Value Creation.
Emotions are prevalent in every negotiation setting, whether or not the parties use a mediator to help facilitate the process. Learning how to identify our emotions and our negotiating counterparts’ emotions, how to categorize the emotions, and how to strategically use these emotions can give you an advantage during the negotiation process and help you create value for yourself and your counter-part. Generally, emotions can be broadly categorized as either positive or negative. Positive emotions include feelings that serve you well, including happiness, laughter, joyfulness, excitement, hopefulness, etc.
Negative emotions include feelings that can can serve you well at times but often does not, including anger, anxiety, fear, etc… Before you engage in any negotiation, you should take time to assess your own emotions and what you know about the emotions of your negotiation counterparts. To assess your own emotions, ask yourself questions which force you to think about how you have reacted to questions, scenarios, and experiences in the past. For example: How do I behave under pressure? What do I feel when X happens? How do I react to Y? To assess your counterparts’ emotions, ask similar questions to people who have interacted with them in the past, including the receptionist at their firm, their secretary, co-workers, prior customers, etc.
If you do not have access to anyone who has interacted with them in the past, call them and test their emotions with trigger questions or scenarios. With this information in hand, prepare for your negotiation by envisioning varying scenarios during the negotiation process, and plan how you will use your emotions to your advantage and how you can trigger the required emotions from your negotiation counterparts. For example, at the beginning of the negotiation, you may decide to be warm and friendly to catalyze positive emotions in yourself and your negotiation counterparts, as it will be natural for them to mirror your emotions. Since value creation usually occurs early on in the negotiation process, this technique can set the stage for value creation early. At the later stages of the negotiation process, consider using a negative emotion as a strategy to help you claim more value, as negotiators tend to give more concessions to parties who express anger, even if not genuine.
Finally, throughout the negotiation process look for signs of how your negotiation counterparts use their emotions. Are they being as strategic as you, or are they unable to understand and control their emotions? If the latter is true, all you have to do is identify what triggers their positive and negative emotions and strategically trigger these emotions to get the results you desire. If you trigger positive emotions, stroke these emotions in a manner that encourages them to see the commonality of their needs and interests to your needs and interest and encourage them to help you meet your needs and further your interests, which will help them in the long run. If you trigger negative emotions, demonstrate your understanding of their concerns and feel their pain by empathizing with them, when appropriate, and show them how they can help meet their need and further their interests by helping you meet your needs and helping you further your interests.
You can contact Attorney Tee Persad at 407-647-7887 or email him at attorneypersad@cplspa.com when you are ready to take the next step.
Mediation and Negotiation Tip
Number 1
Active Listening.
When we have disagreements or are negotiating with each other, most of us can’t wait for the other party to stop talking so that we state our position or argument. Sometimes we interrupt the other party to get our position or argument heard. In the worst case scenario, we expressly discount the other side and insist that he/she listen to us. I truly cannot remember one instance where this technique has worked. Instead, try actively listening to the other party by listening carefully effectively. This can be done by repeating back what you understand from them (what they said, what they want, what they claim, etc…). Then, inquire about their motivations and assumptions behind their claims. Finally, acknowledge their positions.
By following this process, you will be able to collect valuable information from them, test your beliefs and assumptions (which may or may not be accurate), eliminate misunderstandings, and foster mutual understanding. Also, when they observe your behavior, strategy and technique, they will learn from you and mirror your behavior, further promoting mutual understanding. This process also forces you and them to account for any difficult tactics either of you have employed. The end result is that you are both more likely to avoid losing important information, acting on wrong assumptions, and damaging your relationship. This, of course, promotes interdependence and mutual growth. Win Win. This strategy and technique is not just helpful in high business conflicts. I can also be used by family members , co-workers, and business partners. Try it and let me know how it works for you and remember, like any other muscle, active listening is a muscle for the mind, the more you practice it, the better you get at it.
You can contact Attorney Tee Persad at 407-647-7887 or email him at attorneypersad@cplspa.com when you are ready to take the next step.
THE SOLO AND SMALL FIRM DILEMMA
(Jobs, Pains, & Dreaming of Gains) By Tee Persad, Esq.
Over the past 10 years, we have been conducting informal research on the life of solo practitioners (“Solos”) and small firm practitioners (“SFPs”). Through this research, we have discovered that solo practitioners and small firm practitioners have similar job expectations, experience similar pains, and want similar gains. Therefore, they need similar resources and opportunities.
1. Solos & SFPs Have Jobs They Have To Do Every day
Solos and SFPs have functional, emotional, social, and business jobs that they do daily. But they tend to focus the majority of their time and effort on the functional jobs, such as file management and administrative matters (accounting, billing, vendor management, employee management, etc….), and on doing the work required on their clients’ cases. However, the emotional, social, and business jobs are also important and often get pushed aside because there is no time left to tend to these jobs, or for the acquisition of the knowledge or development of the skills necessary to handle these important jobs. Solos and SFPs routinely struggle with effectively managing the relationships with key partners, such as their clients, court personnel, opposing counsel, and employees. They also have to manage the stress associated with not enough money, management responsibilities, marketing, technology, and file management. On top of it all, they also have to keep themselves and their teams engaged so that productivity remains consistent and boredom or complacency does not set in. Finally, when the workday is done, they go home and have additional functional, emotional, social, and business jobs at home. Often times these “home jobs” are subordinated to the functional “work jobs.”
2. The Pains that Solos and SFPs Experience Everyday
Solos’ and SFPs’ pains show up on the financial and non-financial costs of running their practice, the barriers to maximizing their potential, bad feelings and thoughts about their situation, and the risks they are forced to take.
Financial Pain. Most financial costs are usually obvious and range from minor costs for Solos who operate out of their home to full-blown operational expenses for Solos and SFPs who operate out of a proper office with adequate staff, physical and electronic resources, and vendor relationships. The financial costs can consume up to 70% of a Solos’ or SFPs’ monthly gross revenue (averaged over a year) but normally falls between 40% and 60%, assuming a properly staffed office. While some Solos’ and SFPs’ expenses may be less than 40% of their average monthly gross revenue, they normally do not account for the non-obvious financial costs, such as opportunity costs. For example, they may be limiting their ability to attract clients who may be able to bring cases that are more lucrative, they may be missing internal referral revenue and other collateral forms of revenue sources that larger firms integrate as a part of their operations. In addition, they may be missing collaboration opportunities with other lawyers that they know, trust, and have a good working relationship with. When the obvious and non-obvious financial costs are factored into the formula, although the percentage they are taking home on average per month may be higher than 60%, it is likely a percentage of a pie that is relatively small. So, the effective monthly costs of their potential net revenue are usually much larger than they realize.
Pain from Roadblocks. Many Solos and SFPs run into roadblocks or barriers on a daily basis. The barriers to entry into their practice include financial and non-financial barriers. Financial barriers include, among other things, the high costs of rent, personnel, file management systems, supplies, and vendor services, all of which are critical to a productive practice. The non- financial barriers include lack of knowledge, skill, and adequate training in the following areas: leadership principles, management principles, business principles, psychology, communication, negotiation, and non-litigation conflict resolution. These roadblocks are limiting too many Solos and SFPs, causing them to miss out on opportunities that may have a strong positive impact on their practice and lives.
Pain from Bad Feelings. Many Solos and SFPs feel like a failure, incompetent, and not good enough to compete with larger firms. They believe that their lack of resources causes the roadblocks they have, that they are limited in their ability to grow and develop, and cannot be as competent as their colleagues in larger firms. After a while, they start to settle for what they believe is within their reach. These feelings and thoughts are limiting too many Solos and SFPs, causing them to miss out on opportunities that may have a strong positive impact on their practice and lives.
Pain from the Difficulties they Experience. Many Solos and SFPs face challenges that their colleagues in larger firms never encounter. First, they have to be owner, operator, CEO, marketing director, IT director, personnel director, firm administrator, and accountant for their practice. This can consume 30% or more of their time. Second, because of their limited resources, they are unable to handle complex matters in their areas of practice. They may also not have the resources to adequately prepare for court hearing and trials. The result is that they have a difficult time doing their functional job to the best of their abilities. Third, because they are bogged down dealing with the functional jobs of the practice, they have a difficult time taking advantage of opportunities to work on interesting cases, advance their practice, market themselves, and grow and develop into the lawyer they envisioned in law school.
Pain from Unnecessary Risks. Solos and SFPs sometimes have to take what cases they can in order to eat; whatever walks through the door. The alternative may mean that they get no clients and they stagnate and consider changing professions. So they choose to “wing it” or risk not being able to feed themselves and their families. The resulting pressures of daily practice may cause them to risk their reputation, compromise their ethical obligations, and increase their risk of committing malpractice, all of which may lead to depression, anxiety, alcohol and other drug abuse, alienation, and, at the extreme end, disbarment.
2 If a Solo grosses $100,000.00 per year and has a minimal overhead of 20%, her take-home net before taxes is $80,000.00. However, when you add in $50,000.00 of potential revenue loss for the same year, even if overhead was 40% of gross revenue, her take-home net before taxes is $90,000.00. Therefore, the value of the opportunity loss is $10,000.00.
3. The Gains That Solos and SFPs Want
Solos and SFPs are constantly searching for opportunities to obtain value or gain things they need to make their lives easier and more fulfilling; they also want to have their expectations met and are delighted when their expectations are exceeded. Some of the gains they consistently search for are:
A. To increase revenue
B. To have more time for client development
C. To have more sources of client development
D. To have resources to market themselves
E. To have clients who are nicer to them, pay their bills, & promote them
F. To have the administrative burden of practicing reduced
G. To reduce financial and non-financial costs of practicing
H. To have systems, processes, and procedures that help them be efficient
I. To be respected and trusted by their peers, clients, and judges
J. To have a well-earned reputation
K. To have the flexibility to work from remote locations in an effective manner
L. To have human resources to help them do their functional jobs
M. To have opportunities to contribute to a cause greater than themselves
N. To be a part of an organization that offers them a sense of community
O. To be a part of a family away from home
P. To recapture and maximize their time
Q. To improve their competence level in their practice area and beyond
R. To have more skills, tools, and resources
S. To reduce their stress level
T. To improve their personal and professional relationships
U. To go on a vacation free from the constraints of their practice
V. To be a part of something bigger them themselves
W. To have their expectations met and exceeded
X. To have certainty about their future
Y. To feel significant to themselves
Z. To have others recognize them as significant people
While there may be opportunities for Solos and SFPs to acquire some of these gains by partnering up with other Solos and trying to create a small firm environment where it is easier to pool resources, the smaller the operation, the less likely is it for these gains to be realized because the economies of scale are usually not available.
HOW DOES THIS RELATE TO YOUR PRACTICE?
(Exercises to help you do your jobs, relieve your practice pains, and get some gains you want and need)
Know your jobs & how to get them done the way they deserve to be done. I encourage you to take the time to think about the functional, emotional, social, and business jobs that you do every day, or that you have to do every day and do not get to. I recommend that you take a full
day to think about this by yourself and ask everyone who works for or with you to do the same. Then, get together to create a master list, then prioritize it and study. Ask your self and your team:
Are we doing all the jobs we need to do, to the best of our ability, with the resources we have available?
Then ask:
Is there a better way we can do our jobs by ourselves?
Then, finally, ask:
Is there anyone we can partner with who can help us do our jobs more timely, cheaply, effectively, and competently than we can do it?
This is a time-intensive exercise. The more comprehensive the list of jobs, and the more detailed the job tasks and responsibilities are, the more thought-provoking it will be, and the more you will get out of this exercise. Although this exercise is not particularly challenging, it deserves the time and effort of large blocks of time so that you can explore your practice deeply. This is not an hour or two-hour exercise. It is a day-long process that deserves your attention. This deep dive will give you the greatest insight into your functional practice and how it affects you emotionally and socially, and, how it affects how the business of your practice operates.
Know the pains you are experiencing and how to relief them without resorting to self-medication. I encourage you to think about the financial pains you and your firm are experiencing. Then, think about the non-financial pains. Be specific about the pains, when you experience them, and how frequently they appear. Think about the costs of running your practice, the barriers you face, the feelings you have, the thoughts you have, the difficulties you experience, and the risks you take. I recommend that you take a full day to think about this by yourself and ask everyone who works for or with you to do the same. Then, get together to create a master list, then prioritize it and study it. Ask your self and your team:
Do we have the resources to minimize or eliminate these pains without resorting to drastic measures that may cause us greater pain?
Then ask:
Is there a better way to minimize or eliminate these pains than what we have been doing or what we plan on doing?
Then, finally, ask:
Is there anyone we can partner with who can help us minimize or eliminate these pains more timely, cheaply, effectively, and competently than we can with our limited resources?
This is a very difficult exercise for several reasons. First, it forces you to confront yourself and your team in a bold and strong way. It forces you to look at your belief structure and how you experience life as a practitioner. It challenges your implicit bias and it helps bring awareness to your cognitive dissonance. Second, it forces you to see how these pains affect you and your team. Some of them are visibly cancerous and affect your practice in specific, but manageable ways, while others are hidden and chronic cancers that have the potential to kill your practice. Finally, it forces you to face reality and seek the help you need before it is too late.
Know the gains you want and need. I encourage you to think about the gains that you want and need. Examine your expectations, your team’s expectations, your client’s expectations, the courts’ expectations, opposing counsels’ expectations, your family’s expectations, and the profession’s expectations. Think about the savings that you would like to have. List the ways you measure success and what success looks like for you. Identify what will make your life easier and what would delight you. Note which ones are absolute needs and which ones are wants and note the difference. Be specific about what you want and need and why you want them or need them. I recommend that you take a full day to think about this by yourself and ask everyone who works for or with you to do the same. Then, get together to create a master list, then prioritize it and study it. Ask your self and your team:
Can we get what we want and need with the resources (time, financial, relationships, physical, personnel, strategic partners, etc…) that we have now?
Then ask:
Is there a better or faster way to get what we want and need than using our resources or using them the way they are being used now?
Then, finally, ask:
Is there anyone we can partner with who can help us get want we want and need more timely, cheaply, effectively, and competently than we can with our limited resources?
This is an exercise that improves your vision of your future self and helps you see “your ghost of Christmas future.” What would life be like if you had everything you wanted and needed? Can you actually identify what you want and need? Can you actually get what you want and need? When you start consciously thinking about what you want and need, the natural tendency is for you to focus on your life’s purpose and how your professional life fits within that purpose. You begin to think about leading yourself and others with a purpose. This could well be one of the first steps towards living a productive and fulfilled life and having a practice that serves you and helps you serve others in a way that not only benefits you and your clients but also others that are affected by your work. This may be the beginning of you realizing the dream of being the lawyer that you had when you were a law student.
I HAVE DONE THE EXERCISE, NOW WHAT?
Whether you are a Solo or SFP, once you have completed the above exercises, use what you have learned to improve your practice. You can do this on your own, with your team, or with a coach. If you put the time and effort into these exercises that they deserve, then you should see remarkable results on how you see yourself, your practice, and your role. You can also expect to notice shifts in your thinking and belief structure which will help you get more focused on what really matters. If you are satisfied with your progress, use these exercises repeatedly (at least once a year) to help you stay focused and on track.
If, after these exercises, you believe you need help, then seek out the help you need. If you choose, I will be happy to be your mentor and coach and help you through the process and give you other tools that will elevate your practice. Please feel free to reach out to me via email atattorneypersad@cplspa.com or call me at 407-647-7887. Another alternative is to make a dramatic change and consider joining a larger Firm that understands these issues and will help you maximize your potential.
CAN CPLS, P.A. HELP ME REDUCE MY PAIN AND GET THE GAINS I NEED AND WANT?
Our Firm’s value proposition is:
We help lawyers increase their focus, competence, and reputation by providing products and services that help stabilize their costs, increase their resources, minimize their risks, and remove barriers. We also provide them with a family of colleagues and staff, forming a community that supports them without reservation. The resulting benefits are that they increase their net take-home revenue (and start to gain financial freedom), recapture time (increasing their flexibility to learn new things and explore new things), and live a more balanced and productive personal and professional life.
We have designed the Firm with one purpose: “to provide an environment where each individual can thrive and optimize their potential.” We take great pride in serving our lawyers so they can develop their leadership abilities and technical knowledge to fulfill their purpose…to serve their valued clients. If you would like to explore being a part of our Firm, please feel free to reach out to me via email at attorneypersad@cplspa.com or call me at 407-647-7887.
We have focused our energies on designing, developing, and operating an organization that provides products and services to lawyers which help them do their jobs, relieve their pains, and gain what they want and need. Here are some of the products, services, and extra mile examples we provide our lawyers:
1. Firm Brand and Reputation – CPLS, P.A. is a trusted brand in the Florida legal community. The Firm has tackled large complex cases, including class action cases, represented foreign government agencies, handled high conflict and profile cases on behalf of divorcing parties and high profile criminal defense cases. Lawyers at the Firm represent international
industry leaders in several disciplines. Its lawyers include board-certified lawyers, retired judges, and lawyers with advanced degrees, all with years of experience in their fields.
2. Positive Firm Culture, Ethos, and Community – We do our best to bring in and retain positive, helpful, kind, hardworking, and competent staff members and lawyers. We do our best to maintain an environment where everyone is happy to be a part of our team and family and to encourage a sense of community and camaraderie between the members of the firm.
3. Managing Partner who Cares about Lawyers – As the Firm’s managing partner, my primary job is to help our lawyers be the best they can be. I work hand in hand with the staff to ensure the lawyers have what they want and need. And I work with the lawyers collectively and individually to help them as needed. Recognizing the value of the members of the Firm, I subordinate my personal interests to the interests of the Firm and its lawyers and staff.
4. Attorney Liaison – Lawyers have access to an attorney liaison, a licensed attorney working for the Firm who helps them when needed. This attorney helps with training and development for the lawyers and legal support staff, helps the lawyers integrate within our system, and is available to step in when necessary to help the lawyers out.
5. Administrative and Accounting Services – In addition to normal accounting functions, all client and vendor accounting matters are handled by an accounting team that is well trained and efficient. They handle all of the billings for the lawyers and work with them to improve collections and maximize their revenue. They provide lawyers with a bi-monthly accounting of all their receipts and expenses so the lawyers can be aware of the results of their efforts timely. They also provide monthly and cumulative reports for the lawyers to track their progress.
6. Client Services – From the minute a prospective client calls the office, a member of our Client Services team greets them with a smile and warm welcome. This team helps manage the clients’ relationships with the lawyer and their legal support staff, processes all incoming and outgoing mail, maintains the integrity of the clients’ physical and electronic files, manages the use of the office space, and assists with special projects. They work hand in hand with the lawyers, legal support staff, and administrative and accounting staff, to ensure that the lawyers’ jobs are done efficiently, timely, and competently. In addition, this team provides concierge services for lawyers.
7. IT Support – With a full-time IT expert on staff, all computer, phone and tablet issues can be resolved very quickly, reducing downtime. Also, the management of the Firm’s electronic systems is not left up to outside vendors.
8. Marketing Support – With a full-time marketing expert on staff, lawyers can have marketing materials developed to help them brand themselves and increase their client base. Promotional materials regarding the Firm, practice areas, and lawyers are available for the lawyers’ use.
9. Class A Office Space on Lake Eola – We occupy the 4th floor of the PNC Bank building located at 201 East Pine Street, Orlando, Florida. We have a beautiful reception overlooking the lake, 7 conference rooms, a training room, and furnished and equipped offices that are designed with the lawyers in mind. The office is accessible to its lawyers 24/7 and is staffed from 7 a.m. to 6 p.m. from Mondays to Fridays.
10. Professional Atmosphere – From the minute you walk into the office, you get a sense of the importance of professionalism and the impact on the Firm’s operations and effectiveness. From the physical layout to the professionalism of its staff, the Firm takes pride in projecting the importance of a professional environment and ethos.
11. Strong Organizational Structure – The organizational level of the firm’s resources, systems, tools, processes, and procedures is superior in the legal industry. From the minute you walk through the doors, you get the sense of the degree of organization and efficiency.
12. Efficient Systems, Processes, and Procedures – We have designed systems, processes, and procedures to help lawyers do their jobs from the initial potential client contact through the closing of a case once representation is concluded. Our processes and procedures help reduce roadblocks and obstacles for the lawyers and help them focus on what matters. The systems, processes, and procedures were designed to be mechanical when necessary and appropriate (e.g., standardized forms, scripts, templates), brain-like when needed (trained staff with knowledge, skill, and discretion to make good decisions when called for), culture like when the context changes (trained staff to understand the cultural nuances of clients, lawyers, court personnel, and vendors so that communication can be effective), and gymnast like when flexibility is important (trained staff who has the discretion to be flexible when required to get the job done).
13. Trained Staff – We have a trained staff of administrative, secretarial/para-professional, clerical, and client services staff whose functions are specialized to ensure consistency and reliability. When new lawyers join our team, oftentimes they bring their own staff members who are integrated into our system and trained to use our systems, processes, and procedures to improve their efficiency and value to the lawyers; often their productivity improves by over 30%.
14. Equipment – Our electronic system allows our lawyers to work anywhere on the globe that has internet access collaboratively with everyone else at the Firm. With access to our remote system, our lawyers have their organized files at their fingertips and can work when they want, where they want. With an assigned voice over IP phone, they can take their extensions with them anywhere and be just an extension away. Phone messages are converted into emails for their easy access.
15. Supplies – We keep the office stocked with the supplies needed to get the job done and to use in court to help lead the judges and opposing counsel. From file organization supplies to job function supplies, to presentation supplies, and form supplies, we provide all the supplies lawyers need to get their jobs done competently and timely.
16. Internal Referral Systems – Our internal referral systems ensure that all of our clients’needs are met and lawyers receive credit and are compensated for client origination. As lawyers speak at local, statewide, and national events, the Firm gets recognized and receives referrals
from time to time. In addition, the Firm actively markets on the internet. Potential clients from these sources are referred to internally.
17. Collaboration Opportunities – Lawyers are encouraged to collaborate on matters when necessary. This helps foster strong relationships and growth and development while ensuring that clients get the best representation possible. It also allows lawyers to collaborate on more complex and large matters.
18. Supplemental Passive Income Opportunities – The Firm has designed passive income producing programs that lawyers can participate in and supplement the income earned on matters they actively work on.
19. Coverage – When lawyers go on vacation or have conflicts in their calendar, other lawyers at the Firm are always willing to jump in and help out, as needed.
20. Malpractice Insurance – The Firm’s malpractice insurance policy covers all its lawyers.21. Lexis Account – Lawyers are assigned a Lexis account for legal research.
22. Clubs and Organizations – The Firm joins organizations that its members can participate in for networking, learning, and fun, such as the Chamber of Commerce and Top Golf.
23. Free CLE and CME Seminars – The Firm provides free lunch and learn seminars on Fridays on a variety of topics, including practice management, marketing, IT and technology, mental health, practice updates, case law updates, leadership, business development, and mediation strategies. Specialty seminars are held on other days from time to time.
These products, supplies, services, and extra milers help us help lawyers reduce financial pains by reducing their costs and increasing their resources. We also stabilize their costs, contingent on their production, thereby eliminating the pain of monthly fixed costs during months when they oscillate down in monthly revenue. In addition, these products, supplies, services, and extra milers help lawyers reduce barriers, manage their files more effectively, efficiently, and competently, manage their relationships with clients, opposing counsel, and the courts more proactively, and reduce their feelings of incompetence and failure, giving them hope of a brighter future. They also reduce risks of malpractice, stagnation, depression, and anxiety.
Another benefit is the lawyers start to see gains in their wants and needs almost immediately. Their costs are stabilized for the first time in their careers and are dependent on their production, so when their monthly gross revenue oscillates down due to external factors, they do not have monthly practice expenses that are overwhelming. Their revenue increases due to added time to dedicate to their clients’ matters, internal referrals, co-counsel opportunities, and collateral sources of passive or semi-passive revenue. This leads them on a path to financial freedom. These gains are compounded by the extra time they have to work on themselves and spend with their family. The result is their knowledge, skills, and competence increases, thereby increasing their value to themselves, their families, and their clients. This is made possible by the increase in resources, services, products, and learning and leadership opportunities. In short:
We help lawyers increase their focus, competence, and reputation by providing products and services that help stabilize their costs, increase their resources, minimize their risks, and remove barriers. We also provide them with a family of colleagues and staff, forming a community that supports them without reservation. The resulting benefits are that they increase their net take-home revenue (and start to gain financial freedom), recapture time (increasing their flexibility to learn new things and explore new things), and live a more balanced and productive personal and professional life.
CALL TO ACTION
It takes time, focus, and energy to read, digest, and use the information I have provided. If you took the time to read it, I am confident you will take the time to do the exercises. If you take the time to do the exercises, I am confident you will make changes to your practice and you will improve. If you are the kind of person and lawyer I believe you are, then you are someone who I would love to get to know better to see how we can be of service to each other. If that road leads to us working together in one capacity or another, I would cherish the opportunity. If it leads to you joining our team, I promise to meet and exceed your expectations. Call me at 407-647-7887 or email me at attorneypersad@cplspa.com when you are ready to take the next step.
Tee Persad, Esq.
Founder and Managing Partner
CPLS, P.A.
Attorneys|Consultants|Mediators
The Solo and Small Firm Practitioner’s Dilemma
Solo practitioners (“Solos”) and small firm practitioners (“SFPs”) have similar job expectations, experience similar pains, and want similar gains. Therefore, they need similar resources and opportunities. Without these resources and opportunities, they experience difficulties in their professional and personal lives which may lead to taking unnecessary risks.
- Solos & SFPs Have Jobs They Have To Do Everyday
Solos and SFPs have functional, emotional, social and business jobs that they do daily. But they tend to focus the majority of their time and effort on the functional jobs, such as file management and administrative matters (accounting, billing, vendor management, employee management, etc….), and on doing the work required on their clients’ cases. However, the emotional, social, and business jobs are also important and often get pushed aside because there is no time left to tend to these jobs, or for the acquisition of the knowledge or development of the skills necessary to handle these important jobs. Solos and SFPs routinely struggle with effectively managing the relationships with key partners, such as their clients, court personnel, opposing counsel, and employees. They also have to manage stress associated with not having enough money, management responsibilities, marketing, technology, and file management. On top of it all, they also have to keep themselves and their teams engaged so that productivity remains consistent and boredom or complacency does not set in. Finally, when the workday is done, they go home and have additional functional, emotional, social, and business jobs at home. Often times these “home jobs” are subordinated to the functional “work jobs.”
2. The Pains that Solos and SFPs Experience Everyday
Solos’ and SFPs’ pains show up on the financial and non-financial costs of running their practice, the barriers to maximizing their potential, bad feelings and thoughts about their situation, and the risks they are forced to take.
Financial Pain. Most financial costs are usually obvious and range from minor costs for Solos who operate out of their home to full blown operational expenses for Solos and SFPs who operate out of a proper office with adequate staff, physical and electronic resources, and vendor relationships. The financial costs can consume up to 70% of a Solos’ or SFPs’ monthly gross revenue (averaged over a year) but normally fall between 40% and 60%, assuming a properly staffed office. While some Solos and SFPs expenses may be less than 40% of their average monthly gross revenue, they normally do not account for the non-obvious financial costs, such as opportunity costs. For example, they may be limiting their ability to attract clients who may be able to bring cases that are more lucrative, they may be missing internal referral revenue, and other collateral forms of revenue sources that larger firms integrate as a part of their operations. In addition, they may be missing collaboration opportunities with other lawyers that they know, trust and have a good working relationship with. When the obvious and non-obvious financial costs are factored into the formula, although the percentage they are taking home on average per month may be higher than 60%, it is likely a percentage of a pie that is relatively small. So, the effective monthly costs of their potential net revenue are usually much larger than they realize. If a Solo grosses $100,000.00 per year, and has minimal overhead of 20%, her take-home net before taxes is $80,000.00. However, when if you add in $50,000.00 of potential revenue lost for the same year, even if overhead was 40% of gross revenue, her take-home net before taxes is $90,000.00. Therefore, the value of the opportunity loss is $10,000.00.
The non-financial costs are also very painful to Solos and SFPs, and include stress caused by financial issues, lack of time, conflicts, clients, opposing counsel, courts, employees, and vendors. These stresses often times are the reasons why Solos and SFPs compromise the quality of their work and their future.
Pain from Roadblocks. Many Solos and SFPs run into roadblocks or barriers on a daily basis. The barriers to entry into their practice include financial and non-financial barriers. Financial barriers include, among other things, the high costs of rent, personnel, file management systems, supplies, and vendor services, all of which are critical to a productive practice. The non-financial barriers include lack of knowledge, skill, and adequate training in the following areas: leadership principles, management principles, business principles, psychology, communication, negotiation, and non-litigation conflict resolution. These road blocks are limiting to many Solos and SFPs, causing them to miss out on opportunities that may have a strong positive impact on their practice and lives.
Pain from Bad Feelings. Many Solos and SFPs feel like a failure, incompetent, and not good enough to compete with larger firms. They believe that their lack of resources causes the roadblocks they have, and that they are limited in their ability to grow and develop, and cannot be as competent as their colleagues in larger firms. After a while, they start to settle for what they believe is within their reach. These feelings and thoughts are limiting to many Solos and SPFs, causing them to miss out on opportunities that may have a strong positive impact on their practice and lives.
Pain from Difficulties they Experience. Many Solos and SFPs face challenges that their colleagues in larger firms never encounter. First, they have to be owner, operator, CEO, marketing director, IT director, personnel director, firm administrator, and accountant for their practice. This can consume 30% or more of their time. Second, because of their limited resources, they are unable to handle complex matters in their areas or practice. They may also not have the resources to adequately prepare for court hearing and trials; they may be perceived as being disorganized and unprepared. The result is that they have a difficult time doing their functional job to the best of their abilities. Third, because they are bogged down dealing with the functional jobs of the practice, they have a difficult time taking advantage of opportunities to work on interesting cases, advancing their practice, marketing themselves, and to grow and develop into the lawyer they envisioned in law school.
Pain from Unnecessary Risks. Solos and SFPs sometimes have to take what cases they can in order to eat; whatever walks through the door. The alternative may mean that they get no clients and that they stagnate and consider changing professions. So they choose to “wing it” or risk not being able to feed themselves and their families. The resulting pressures of daily practice may cause them to risk their reputation, compromise their ethical obligations, and increase their risk of committing malpractice, all of which may lead to depression, anxiety, alcohol and other drug abuse, alienation, and, at the extreme end, disbarment.
- The Gains That Solos and SFPs Want
Solos and SFPs are constantly searching for opportunities to obtain value or gain things they need to make their lives easier and more fulfilling; they also want to have their expectations met and are delighted when their expectations are exceeded. Some of the gains they consistently search for are:
- To increase revenue and lower costs
- To have more time for client development
- To have more sources of client development and marketing
- To have clients who nice to work for and pays bills on time
- To have clients who appreciate and promote them
- To have the administrative burden of practicing reduced
- To reduce financial and non-financial costs of practicing
- To have systems, and processes that help them be efficient
- To have procedures in place that will help reduce errors
- To be respected by their peers, clients and judges
- To be trusted by their peers, clients and judges
- To have flexibility to work from home or elsewhere
- To have human resources to help with functional jobs
- To have opportunities to contribute to a bigger cause
- To be a part of an group that offers a sense of community
- To be a part of a family away from home
- To recapture and maximize their time
- To improve their competence level
- To have more skills, tools, and resources
- To reduce their stress level
- To improve their personal and professional relationships
- To go on vacation free from the constraints of their practice
- To have their expectations met and exceeded
- To have certainty about their future
- To feel significant to themselves
- To have others recognize them as significant people
While there may be opportunities for Solos and SFPs to acquire some of these gains by partnering up with other Solos and trying to create a small firm environment where it is easier to pool resources, the smaller the operation, the less likely is it for these gains to be realized because the economies of scale are usually not available.
HOW DOES THIS RELATE TO YOUR PRACTICE?
Know your jobs & how to get them done the way they deserve to be done. I encourage you to take the time to think about the functional, emotional, social, and business jobs that you do every day, or that you have to do every day and do not get to. I recommend that you take a full day to think about this by yourself, and ask everyone who works for or with you to do the same. Then, get together to create a master list, then prioritize it and study. Ask your self and your team:
Are we doing all the jobs we need to do, to the best of our ability, with the resources we have available?
Then ask:
Is there a better way we can do our jobs by ourselves?
Then, finally, ask:
Is there anyone we can partner with who can help us do our jobs more timely, cheaply, effectively, and competently than we can do it?
This is a time intensive exercise. The more comprehensive the list of jobs, and the more detailed the job tasks and responsibilities are, the more thought provoking it will be, and the more you will get out of this exercise. Although this exercise is not particularly challenging, it deserves the time and effort of large blocks of time so that you can explore your practice deeply. This is not an hour or two hour exercise. It is a day long process that deserves your attention. This deep dive will give you the greatest insight in your functional practice and how it affects you emotionally and socially, and, how it affects how the business of your practice operates.
Know the pains you are experiencing and how to relief them without resorting to self medication. I encourage you to think about the financial pains you and your firm are experiencing. Then, think about the non-financial pains. Be specific about the pains, when you experience them, and how frequent they appear. Think about the costs of running your practice, the barriers you face, the feelings you have, the thoughts you have, the difficulties you experience, and the risks you take. I recommend that you take a full day to think about this by yourself, and ask everyone who works for or with you to do the same. Then, get together to create a master list, then prioritize it and study. Ask your self and your team:
Do we have the resources to minimize or eliminate these pains without resorting to drastic measures that may cause us greater pain?
Then ask:
Is there a better way to minimize or eliminate these pains than what we have been doing or what we plan on doing?
Then, finally, ask:
Is there anyone we can partner with who can help us minimize or eliminate these pains more timely, cheaply, effectively, and competently than we can with our limited resources?
This is a very difficult exercise for several reasons. First, it forces you to confront yourself and your team in a bold and strong way. It forces you to look at your belief structure and how you experience life as a practitioner. It challenges your implicit bias and it helps bring awareness to your cognitive dissonance. Second, it forces you to see how these pains affect you and your team. Some of them are visibly cancerous and affect your practice in specific, but manageable ways, while others are hidden and chronic cancers that have the potential to kill your practice. Finally, it forces you to face reality and seek the help you need before it is too late.
Know the gains you want and need. I encourage you to think about the gains that you want and need. Examine your expectations, your team’s expectations, your client’s expectations, the courts’ expectations, opposing counsels’ expectations, your family’s expectations, and the profession’s expectations. Think about savings that you would like to have. List the ways you measure success and what success looks like for you. Identify what will make your life easier and what would delight you. Note which ones are absolute needs and which ones are wants and note the difference. Be specific about what you want and need and why you want them or need them. I recommend that you take a full day to think about this by yourself and ask everyone who works for or with you to do the same. Then, get together to create a master list, then prioritize it and study. Ask your self and your team:
Can we get what we want and need with the resources (time, financial, relationships, physical, personnel, strategic partners, etc…) that we have now?
Then ask:
Is there a better or faster way to get what we want and need than using our resources or using them the way they are being used now?
Then, finally, ask:
Is there anyone we can partner with who can help us get want we want and need more timely, cheaply, effectively, and competently than we can with our limited resources?
This is an exercise that improves your vision of your future self and helps you see “your ghost of Christmas future.” What would life be like if you had everything you wanted and needed? Can you actually identify what you want and need? Can you actually get what you want and need? When you start consciously thinking about what you want and need, the natural tendency is for you to focus on your life’s purpose and how your professional life fits within that purpose. You begin to think about leading yourself and others with a purpose. This could well be one of the first step towards living a productive and fulfilled life and having a practice that serves you and helps you serve others in a way that not only benefits you and your clients, but also others that are affected by your work. This may be the beginning of you realizing the dream of being the lawyer that you had when you were a law student.
I HAVE DONE THE EXERCISE, NOW WHAT?
Whether you are a Solo or SFP, once you have completed the above exercises, use what you have learned to improve your practice. You can do this on your own, with your team, or with a coach. If you put the time and effort into these exercises, then you should see remarkable results on how you see yourself, your practice, and your role. You can also expect to notice shifts in your thinking and belief structure which will help you get more focused on what really matters. If you are satisfied with your progress, use these exercises repeatedly (at least once a year) to help you stay focused and on track.
WHAT IF I NEED MORE HELP?
Coaching Services. If, after these exercises you believe you need help, then seek out the help you need. If you choose, I will be happy to be your mentor and coach and help you through the process and give you other tools that will elevate your practice.
WHAT ABOUT JOINING A LARGER FIRM?
Joining CPLS, P.A. One alternative to trying to do it all yourself is to make a dramatic change by joining a larger firm that understands the issues raised in this article, and is wiling to commit to helping you maximize your potential. Our Firm, CPLS, P.A. is such a firm. Here is our Firm’s vision statement:
We help lawyers increase their focus, competence and reputation by providing products and services that help stabilize their costs, increase their resources, minimize their risks, and remove barriers. We also provide them with a family of colleagues and staff, forming a community that supports them without reservation. The resulting benefits are that they increase their net take-home revenue (and start to gain financial freedom), recapture time (increasing their flexibility to learn new things and explore new things), and live a more balanced and productive personal and professional life.
To learn more about how joining CPLS, P.A. can help benefit you, please e-mail me your resume and I will be happy to send you some confidential information about our Firm so that we can start the conversation. Here is my contact information:
Tee Persad, Esq.
Founder and Managing Partner
CPLS, P.A.
Attorneys|Consultants|Mediators
Wishing you the best in your professional and personal life.
Phone Number: 407-647-7887. E-mail: attorneypersad@cplspa.com. Bio: https://cplspa.com/team-members/tee-persad/
Florida Medical Marijuana Law
Marijuana (or cannabis) remains a Schedule I drug—a drug with no currently accepted medical use and high potential for abuse—under the federal Controlled Substances Act. Under federal law, it is illegal to use or possess marijuana. Despite this fact, Florida voters passed a new Medical marijuana law, Amendment 2, on November 8, 2016. The law is scheduled to take effect in January 2017. Florida joins 27 other states, the District of Columbia, Puerto Rico, and Guam in allowing public medical marijuana programs. The new law will have far-reaching effects on the business community, real estate development, employment law, and others, but it is silent on many key issues that concern players in this field. This law supplements the 2014 Compassionate Medical Cannabis Act, which remains in effect (source: highergrounds.ca).
The law is silent on direct rules and regulations. The Florida Department of Health is charged with promulgating rules and regulations and enforcing the law. It has six months, or until June 2017, to develop the rules and regulations.
Under the new law, only people with “debilitating medical conditions” can legally use medical marijuana. Those medical conditions include cancer, glaucoma, HIV, AIDS, Hepatitis C, ALS, Crohn’s Disease, Parkinson’s Disease, Multiple Sclerosis, PTSD, Epilepsy, and other conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.
Patients diagnosed with a “debilitating medical condition” hoping to legally use the drug must obtain a physician certification from a physician licensed in the state of Florida. The physician must conduct a physical examination of the patient and perform a full assessment of the patient’s medical history before prescribing medical marijuana.
Meanwhile, Dank Nation Dispensary and other dispensaries will have to wait until the Department of Health issues its rules and regulations before opening. It is also likely that local and city government bodies may enact codes and regulations which supplement the Department’s rules and regulations. So, it is advisable to wait and see what those rules and regulations will be. In the interim, entrepreneurs and investors may want to consult with an attorney to better understand the process, general requirements, and how other jurisdictions have approached this issue.
Medical Marijuana sales may be a complementary business with the technology of CO2 extraction and source of revenue for medical professionals, including doctors, dentists, optometrists, nurses, and others with medical training, education, and experience. Since these professionals are already familiar with the Department of Health general rules and regulations, and already have gone through extensive background checks and have to go through reevaluation periodically to maintain their licenses, they are likely to be looked upon favorably by the Department of Health. Therefore, it is likely that the application process for them may be easier than others. Because of this possibility, we recommend that health care professionals get a head start on the process and begin educating themselves. Statistics sourced: https://www.altmedcaredocs.com/medical-marijuana-florida/
For further information, please call Tee Persad, Esq. at 407-647-7887 to set up a consultation.
Why small business owners should hire a lawyer
Often, business owners only look for legal counsel in times of distress. For small business owners, this could be both a costly mistake and one that can end a business. Whether you’re a startup or established small business, hiring a business attorney in times of crisis is generally more expensive than retaining one sooner to prevent legal problems before they arise.
To avoid higher costs for your small business, working with an attorney before legal issues surface can help you gain control of responsibilities like navigating government laws, interacting with third parties and the public, and establishing rights and expectations of the founders upfront. For example, hiring court appearance professionals to negotiate and draft an agreement between business partners can prevent disputes as the business grows, which can help the business avoid litigation that costs thousands of dollars to resolve.
A lawyer can advise on the types of business entities available to help entrepreneurs take advantage of federal and state benefits and ensure that they have the right structure for growth and development. Legal counsel can guide small business owners into forming the entity that gives them the best ability to raise the capital they need to effectively manage their business. If this process is not followed, as the business grows, the legal fees to change the business structure and update records to meet its growth and development plans will be substantially higher.
Seeking legal advice from the beginning can help entrepreneurs make better business decisions, especially in regards to risks, funding, strategic partnerships, and logistics. For example, a good business lawyer can help entrepreneurs understand the risks and benefits of engaging in certain activities, and help guide them through legal and administrative processes.
He/she can also help entrepreneurs understand the types of funding sources available and advise them on development of a strategy to put the business on track to acquire the funding. Also, business lawyers usually meet with many other businesses and have a large network of referrals, which may be useful in forming strategic partnerships.
The right strategic partner can increase the sales of a business dramatically; they not only help increase sales, but also help a business grow and develop its systems, processes, and procedures which may open up opportunities to take the business to the next level.
A good business lawyer will also help new companies minimize risks of which small business owners are not aware. For example, they can help prevent complaints by local, state, or federal governments, and reduce the likelihood of the small business being subject to costly investigations.
Finally, a lawyer can review contracts with partners and/or vendors to make sure the terms are fair. Fair agreements consider every party’s concerns and issues and are usually complied with more readily by all; unfair agreements, conversely, are less likely to be complied with and generate conflict and litigation. This drives up the costs of running a business and threatens business operations.
Hiring a Lawyer
If you decide to hire a lawyer, retain one who understands your business. Someone with experience in technology may not be the best choice if you plan to open a retail store, for example. A lawyer who has experience with businesses like yours will be able to advise you on available options, as well as on your industry’s general best practices.
Are you a small business owner without legal representation, or are you starting a business? CPLS, P.A. founder Tee Persad has over 20 years experience practicing law in Central Florida. He specializes in business growth and litigation, and has worked with small, medium, and large businesses. Contact him today at 407-647-7887.
What the Defend Trade Secrets Act means for your business
What is the Defend Trade Secrets Act?
The Defend Trade Secrets Act (DTSA) was passed in the House and Senate in April 2016, and is meant to promote consistency in instances of trade secret disclosure or misappropriation. Historically, the protection of trade secrets was solely governed by state law and, because each state has distinct trade secret laws, it has always been challenging to protect trade secrets across the United States in a uniform way.
The passage of the act enables companies to more easily elevate cases to the federal level, allowing them to ask Federal Courts to enforce their rights throughout the union. Under the Act, these rights offer protection against the leaking of trade secrets by allowing materials containing trade secrets to be seized in “extraordinary circumstances.” This extraordinary right gives companies added protection not previously available in every state.
The time period in which a company has to file an action has also been unified and, in some instances, extended. Under the Act, the statute of limitations is three years. This gives companies time to fully evaluate their options, conduct a thorough investigation and attempt to take remedial action before they have to take legal action. Because the limitation period starts when a trade secret violation is discovered, companies may have a longer period to enforce their rights.
Further details of the Defend of Trade Secrets Act
In addition to the recovery of damages, the Act also authorizes injunctive relief. Federal courts can issue injunctions against threatened or actual sharing of trade secrets. This can be a useful tool which can help companies mitigate their damages, and detract future misuse of their trade secrets. The amount of damages recoverable under the Act are also enhanced and broadened to include royalties and, in the case of malicious trade secret appropriation, up to double the actual damages and attorneys fees.
The DTSA does not preempt state laws, so companies can file a claim under this federal Act, state laws, or both. This expands a company’s ability to reach violators and broadens its options to protect its intellectual property.
The DTSA’s reach extends beyond the owner of the trade secret and the one who misappropriates the trade secret. In order to further discourage the misappropriation, it encourages neutral parties to be watchdogs for companies by allowing them to act as whistleblowers and provides them with immunity for disclosing trade secret violations to state or federal agents, and attorneys who may be able to prosecute the claims.
What does this mean for your business?
In light of the DTSA, it would be wise to find a UK lawyer to review existing employee contracts, handbooks, and general policies and to revise the trade secrets, non-disclosure, and non-compete sections of those documents to a) fall into compliance with the Act and to b) ensure that everyone is aware of the consequences of misappropriating their employer’s trade secrets.
Since the passage of the DTSA was recent, it is wise to consult legal counsel to see if pursuing a trade secrets case would prove more beneficial in a state or federal court. If you have questions about this or trade secrets in general, contact Attorney Tee Persad at 407-647-7887.
Employee’s apparent authority binds employer
The quest
ion of apparent authority stayed on the mind of a South Florida business owner when he was found liable for a faulty contract entered in by a rogue employee.
Peggy and William Post sought relief from the Florida heat and decided to install two new AC units on their properties. Acting on a recommendation from an acquaintance, they contacted Island Aire and met with Island Aire employee Sam Vandernoth to arrange for purchase and installation. Once an agreement was reached, the Posts signed an agreement provided by Vandernoth and wrote two checks totaling $3,000, both payable to Vandernoth.
After weeks passed and no work was done, the Posts contacted Vandernoth to complain and were refunded $1,000. More time passed and the Posts reached out again to demand a full refund. After silence from Vandernoth, the couple contacted Island Aire’s main office hoping for a resolution that would prove difficult to attain. They were told that Vandernoth had been fired.
Island Aire states that it was unaware of the agreement and payments that had occurred between the Posts and Vandernoth, and were unwilling to issue a refund. According to Island Aire, there had been no valid agreement nor funds received, leaving them free of responsibility. The Posts, upset over their lack of refund, took Island Aire to court and won $2,000, effectively gaining all of the money that had been stolen by Vandernoth.
Island Aire fought the ruling, asserting that Vandernoth’s actions were his own and not condoned nor encouraged by Island Aire, who ostensibly had no idea what he was doing. Island Aire rejected the Court’s decision based on apparent authority, arguing that Island Aire had never explicitly nor implicitly condoned the behavior of Vandernoth nor communicated to the Posts that Vandernoth had the authority to act as he did. Island Aire claimed the Posts were at fault for assuming Vandernoth had the authority to act on behalf of Island Aire. Of note was that the Posts made the checks payable to Vandernoth instead of to Island Aire.
The courts rejected this argument, reiterating that apparent authority did apply because Vandernoth had all the trappings of authority that included his employment by Island Aire, company uniform, company vehicle, company cell phone, and possession of blank Island Aire contracts. Furthermore, the court asserted, Island Aire had given Vandernoth the authority to enter into contractual agreements on its behalf as part of his duties.
The Posts were only right to assume Vandernoth had the authority to act as he did, and were entitled to their $2,000. Even though Vandernoth’s actions were unauthorized, they were of such a nature that third parties were entitled to rely upon them as being within his apparent authority.
Employee theft is a real problem for employers. Employers must take precautions to ensure that their employees’ do not abuse their express and apparent authority. This can be done by having employees sign agreements in which they acknowledge their authority, understand the civil and criminal penalties for exceeding their authority, and agree to reimburse the Employer for losses resulting from them exceeding their authority. In addition, employers must reinforce these limitations in periodic training sessions for all employees.
Do you have more questions about how you can protect your business? Contact Attorney Tee Persad at attorneypersad@cplspa.com or 407-647-7887 and visit https://www.cplsbusinesslaw.com/ to see all the services we provide.
