One of the primary goals of our firm is to act as counselors to clients, in the fullest sense of that word. “Counseling”, to us, means providing thoughtful, intelligent legal advice. Perhaps nowhere is that advice more valuable than when it comes to protecting a business before a legal dispute arises. Successful businesses realize that the costs involved in preventative legal representation are usually a fraction of the costs of defending or prosecuting a lawsuit and taking it to trial.
Counseling clients before a legal dispute arises very often involves a discussion of the ways a business can protect itself with proper written agreements and policies, and securing protection for intellectual property. If you find yourself in a legal dispute well-crafted written agreements and documentation are key to prevailing. The following are some of the more common ways to protect your business and also add value to that business going forward:
Contracts for services or goods: If your business provides a service, or sells a product, or any combination of these two, you need to have proper agreements in place with your customers and clients. These agreements need to be tailored to your specific business, and any risks inherent in that business, and clearly set forth rights and obligations of both parties.
Vendor contracts: If your business uses a vendor or supplier and the amount of money involved is more than de minimis, there should be an agreement in place that sets forth rights and obligations of both parties. If the vendor is providing more ‘complex’ and/or ongoing services such as marketing your business, designing a website, or providing materials on a public works construction project, such agreements are essential to protecting your business in the event of a dispute. Even if the vendor insists on using their contract, review by legal counsel is critical.
Non-disclosure agreements: If your business has any proprietary or confidential methods, lists, formulas, plans, or other information, and it is worth protecting, then a non-disclosure agreement should be implemented. These agreements set forth the confidential nature of any information that your employees, contractors, vendors, partners, or business associates may come in contact with, and help ensure that such information qualifies for ‘trade secret’ protection.
Employee handbooks/policies: In all honesty, we are not fans of voluminous employee handbooks full of provisions that no one follows or cares about. However, it is undisputed that certain policies and procedures can help greatly if there is ever an employment dispute or lawsuit, including proper anti-harassment and discrimination policies. Also, handbooks and policies are a good opportunity to make sure employers and employees are on the same page, and are both committed to the same goals and vision.
Trademark registration: With so many businesses competing in the market, branding is something on most business owners’ minds. If you spent time and money to market your specific brand, logo, and name, and you have generated goodwill for these items, its almost always worth it to secure trademark protection, especially if you plan to grow beyond the local level.
We have litigated hundreds of cases. In probably 70% of those cases, a well-crafted written agreement tailored to the situation at hand would have benefitted our clients greatly. Judges and juries generally do not like to guess at what the parties agreed to, or should have agreed to, so get everything in writing up front. Moreover, juries are often not very sympathetic to business, because they believe that the business person should have known better. Make sure you are ahead of your competition, make sure you have your necessary agreements in place.