The Preventive Lawyer: A Business-Forward Generalist

“I’m not a pastry cook, but I’ve had to learn a certain amount about it.
I’m not a baker, though I’ve had to learn how to do it.
I’m sort of a general cook.”
– Julia Child

You’ve had shortness of breath, fatigue and an annoying cough which has lasted several days. After spending hours online consulting Dr. Google to see what the problem is, you convince yourself that you have lung cancer.

Don’t worry, I’m not here to judge. In fact, according to recent studies, approximately 40% of Americans suffer from “cyberchondria” and have misdiagnosed themselves online, so you’re in good company.

However, after self-diagnosing, do you frantically run straight to an oncology specialist? Hopefully not. And you certainly don’t go to a podiatrist, chiropractor, ophthalmologist or brain surgeon, since those issues likely have nothing to do with your symptoms. Instead, you go to a general practice physician to initially examine you and determine alternative – and more likely – causes for your ailments.

In many instances, especially during cold and flu season, your general doctor is then able to make a diagnosis and prescribe certain medications, exercise and diet restrictions. You go home and follow those instructions and get better a few days later.

Now, it’s possible the doctor may refer you for x-rays and blood tests, if needed, to further identify the problem . . . and may even perform certain preventive procedures within the office. In the off-chance your extreme cyberchondria was in fact validated, the doctor would refer you to a specialist for follow-up care.

The moral of the story is that by first approaching your general practitioner – and not jumping to conclusions or performing healthcare DIY – you can effectively resolve concerns with minimal unnecessary stress. And given your mindset before walking into the doctor’s office, this should be welcome relief.

The legal world is no different.

Based on a True Story

Let’s say you’re a business owner and have a dispute with one of your suppliers. More specifically, following a couple late payments, a key supplier decided that it would be requiring payment in full up-front before sending any more material.

Even worse, the supplier decided to shorten the term of the agreement from three years to four months and would then re-evaluate. To that end, the supplier forwarded you an amendment to your original contract, further advising that if you don’t sign, you’ll stop receiving material altogether.

Your first reaction – after pounding your keyboard and throwing your coffee mug at the wall – was to spend several hours online consulting Mr. Google, Esq. After all, you needed to see whether it was “legal” for your counterpart to unilaterally attempt to change the contract terms so abruptly. You then convince yourself that the supplier’s actions were not “legal” and that it should be drawn and quartered in a court of law for its malfeasance.

This is where the preventive medicine analogy begins.

Do you throw down the gauntlet and engage a commercial litigation specialist to file a lawsuit against this supplier? Hopefully not, since the supplier will likely cut off all supply immediately upon receiving a copy of the complaint, which in turn could result in significant business losses while you attempt to procure back-up suppliers (hint, it may take several months to do so). And we all know there are no guaranteed wins in litigation.

And you certainly don’t want to go to a personal injury, bankruptcy, criminal or family lawyer since those issues likely have nothing to do with your conundrum. Instead, this would be an ideal time to consult with a Preventive Lawyer.

Quick Sidebar – What’s a Generalist?

Preventive Lawyers are typically generalists, meaning they have broad-based experience over several practice areas. This experience typically comes from diverse work histories, involving employment as in-house lawyers for businesses, as well as years of practice in private firms representing businesses.

For true generalists, this experience includes negotiating and closing commercial transactions in various business settings. This experience further includes litigation and dispute resolution, including direct involvement as lead counsel in state, federal and appellate courts.

Outside of transactional and litigation arenas, generalists have experience providing high-level strategic business and legal guidance to clients on everything from labor and employment issues to product and service procurement to compliance with various laws and regulations.

In addition to their touches with a broad array of practice areas, many generalists also have experience hiring and managing private firm lawyers in specialized business, compliance and litigation settings. And some of those may even have experience managing insurance programs for businesses, as well as claims and litigation matter for insurers (hint, this can be a huge bonus, as these generalists have been able to peek behind the insurance curtain and learn how they operate).

This eclectic experience gives generalists the unique ability to spot and analyze issues and then think several steps ahead to anticipate potential business and legal risks given a particular course of action. This experience also instills a natural humility, resulting in generalists instinctively knowing what they don’t know and not being afraid to refer “patients” to specialists when necessary.

We Now Return to Our Regularly Scheduled Programming

Back to our hypothetical . . . you’ve made the astute decision to first approach a Preventive Lawyer, who asks you about your “symptoms.” After providing a calmed-down version of the supplier’s wrongdoing, this generalist reviews the contract and discusses your business and supply chain needs.

The Preventive Lawyer further explores your appetite for litigation as well as the legal and business consequences of doing so. You learn that, given the relative size of your company compared to the much larger supplier, litigation could be costly and wear down your resources. Of course, you would also lose key materials for a period of time, further harming production.

You then learn that the contract the supplier originally sent to you at the beginning of the relationship was very one-sided. When asked about the negotiation process, you sheepishly admit that you simply signed the PDF sent to you and e-mailed it back, instead of asking for a Word version so you could redline and negotiate problematic provisions.

You realize that these legalese contract provisions – which you initially dismissed simply as “just a bunch of boilerplate” – actually wound up blindsiding you. In fact, you likely would have lost a lawsuit against the supplier . . . and then would have been required to pay all of its attorney’s fees in that losing effort (in addition to your own).

Understanding the issues but remaining firm, you say, “That’s fine, but I still do not want to give that supplier any further business. What are the next steps?”

The Preventive Lawyer diagnoses your company with Supply Chain Business Continuity Breakdown Syndrome, brought on by an acute onset of Accounts Payable Deficiency. This diagnosis has both short-term and long-term remedies, which your Preventive Lawyer discusses with you.

The short-term remedy involves cleaning up the dispute with your current supplier. During the earlier question and answer session, you advised it would take approximately five months – no more than six – to identify and onboard an acceptable substitute supplier. As such, your Preventive Lawyer recommends engaging the supplier productively and negotiating a one- to two-month extension to its proposed contract amendment, which you should be happy to sign (hint, see long term remedy #1 below).

The long-term remedy involves multiple prescriptions:

  • Collaborate with your internal operations specialist – or get a referral for an outside operations specialist if you don’t have one – to immediately begin the onboarding process for a new supplier . . . and then further develop an appropriate supply chain business continuity plan to prevent potential disruptions like this in the future.
  • Work with your Preventive Lawyer to develop and implement a contract review and negotiation process, including preparing contract forms which are more favorable to your company’s interests and which can be deployed proactively.
  • Develop management and oversight for your accounts payable, perhaps even creating a separate position since you had been making your overworked CFO moonlight in this role for over a year since the last A/P specialist left.

Long story short, by first approaching your Preventive Lawyer, you were able to effectively resolve your concerns, avoiding the catastrophic effect of protracted litigation in the process. Instead, you only have to plug your nose and deal with your problematic supplier for a short time longer. And you will certainly benefit long-term from your newly-prescribed exercise and diet regimen which will ensure improved internal business processes on multiple fronts.

Given your mindset before walking into the office, this should be welcome relief.

KEEFER is your ounce of prevention.

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