I think there are many ways a lawyer can help minimize the potential for litigation of a company, but always keep in mind there are no guarantees you will not wind up in litigation. The focus is really how can a transactional attorney help your company or business try to avoid litigation? The first is having a good business structure in place. An attorney can advise on these things, “how can we set your company up, what can we do, what can you avoid.” An attorney can provide employee manuals to limit exposure with staff and employees and have a set understanding of company policies. That attorney can help ensure company policies are legally applied in a fair-neutral way to avoid potential litigation internally for a company.
A transactional attorney can prepare and review company agreements to limit their exposure when transacting with other parties. There are many different ways, that may be outside of the scope of a transactional attorneys practice area but could still recommend that a company seek other professional guidance, for example tax law, or other areas of running a business that are potential risks for litigation. The most important takeaway is that when it comes to transactions, the best way to prepare is to have an attorney involved as early as possible. It’s a lot harder to undo something in a contract than not have it there in the first place or negotiate specific issues before signing an agreement. Ultimately, a transactional lawyer will help minimize future litigation by being involved in the process early and thoroughly to avoid or help try to avoid any pitfalls.
Does Having A Transactional Attorney Reduce Overall Transaction Cost And Cost Of Potential Future Litigation From Those Matters?
With respect to transactional costs, if an attorney is potentially helping avoid future litigation, you wouldn’t know what issues or litigation you avoided because it would not have happen in the first place. While it can be difficult to calculate or determine actual transactional cost savings, with having an attorney involved, you stand a better chance of avoiding the bigger problems out there that businesses run into regarding potential litigation. Hopefully, you’re avoiding lawsuits and have a sound business practice to not run into these pitfalls. However, it’s never a guarantee, and you can have the best attorney in the world drafting your contracts and still run into litigation or unavoidable issues.
Should We Have A Transactional Attorney In-House Or Have Someone On Retainer Or Do We Just Hire A Transactional Attorney On An As-Needed Basis?
This will depend on the company itself. The type of company you are, your company’s size, what you generally do day-to-day, and the business of your company will factor into whether it makes more sense financially to have in-house counsel or hire an attorney on an as needed basis. If a company is engaged in a specific area that is more prone to litigation and liability, it might make sense to have an attorney on staff or an attorney on a retainer. If the company just needs legal help sporadically if the need arises, then it might make more sense to hire an attorney as the need arises. It’s going to be a business decision and what the company thinks it needs from a legal standpoint. Attorneys like myself can always be creative in how they provide and charge for their legal services. I would always recommend that when a company is looking into legal services to ask the attorney they’re speaking with for different plans or options depending on what that company needs.
A good example here might be if a company faces two to three lawsuits a month because of the type of business they’re engaged in. Maybe they could benefit from having an attorney on retainer that just steps in as needed. Similarly, if you’re a company that’s 300, 500, or 1,000 employees, you might need an attorney just to help you handle all of the day-to-day with employees, and more things are going to pop up just because of how exposed you are. If you only have a couple of employees or a traditional small business mom-and-pop shop, it doesn’t mean that you should just avoid getting legal help. So it’s going to be on a needs basis for what precisely that business entails.
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