over lawyering

Has Your Business Suffered From Over Lawyering?

Linkilaw Legal Advice

Linkilaw promotes cost effective, good quality lawyers.  We aim to work with lawyers who can not only answer the nuts & bolts legal issue, but apply commercial nous and insight to the guidance they provide business owners and where/what legal advice is actually ‘needed’ at any given time.

Because, from our own experience and that of many commercial customers, certain lawyers might be good at the law, but their approach actually helps stifle business creativity and entrepreneurial prowess.

In fairness, you could argue, lawyers are not retained to strategise or think about the overall needs of a business.

We generally instruct them to deal with strict legalities of a given situation and their focus is concerned with liability.  Consequently their starting point is usually “we cannot do this!” rather than, “how can we make this happen?”

[tweet_dis_img]Over lawyering tends to be most common in sections housing representations and warranties.[/tweet_dis_img]

Concerns About Over Lawyering

But concerns about a lawyers commerciality (or occasional lack of it) is a real one for business owners facing a rather larger bill than was necessary as a result of some good, old fashioned, over lawyering.

Over-lawyering tends to happen when a lawyer disproportionately focuses on small or unlikely risks. It can also happen when an overzealous legal mind runs away with the corporate budget or where a firm allows either too many fee-earners to get involved on a particular matter or retains expensive senior lawyers to do what a new qualified lawyers could do for far less.

Also, lawyers are trained to always have an answer and they need to keep an eye on increasing the PEP (Profits per equity partner) …. I know, we’re cut from cynical cloth.

In all cases over lawyering leads to higher than expected (or required) costs

There is also the contrary argument here: a business may prefer to engage a more experienced lawyer for a fairly straightforward job because it knows that it would take a less experienced lawyer four times as long to complete the task. This is a big issue that’s getting bigger as some lawyers are increasingly forced to compete on price.

Businesses need to be both proactive and vigilant in knowing the legal strategy up front; just as one would in any other corporate decision making process. Always ask for a detailed roadmap of what needs to be done, by whom and when. Identifying which risks from a commercial perspective need additional attention and hold potential of “over-lawyering” and those risks which do not.

US Patent Trial And Appeal Board (PTAB)

[tweet_dis_img]The patent owner's representative raised legal objections to 73 out of 106 exhibits.[/tweet_dis_img]

In January 2015, the US Patent Trial and Appeal Board (PTAB) actually made a point of recording its unhappiness with over-lawyering. In Medtronic v Norred, the patent owner’s representative had raised legal objections to 73 out of 106 demonstrative exhibits, with a detailed explanatory narrative, and this inability to narrow the issues in dispute incensed the PTAB. After a failed attempt to give the patent owner the opportunity to choose its “single best objection” from the list of 73, the PTAB ordered that it would not give any evidentiary weight to over-lawyered objections.

The PTAB also made reference to the disproportionate use of time and ordered that any remaining objections would have to be dealt with between themselves any time spent resolving those remaining objections would be at the cost of the patent owner.

Final Words: Beware Of Over Lawyering

Most businesses adopt a fairly safe middle ground; controlling their costs, balanced against risks. Businesses should discuss the most economical way to get things done.

The key is to find commercially-minded lawyers who understand the realities of business, the stage of your business life cycle (particularly when a start up or emerging business) and who can deliver cost-effective products and services which suitable to your specific needs.

Got any legal questions or need legal advice? Then get in touch with us for a free Startup Legal Session and we’ll help get your legal bases covered.

Startup Legal Session