The best type of lawyers for business people

As a former M&A lawyer at a large international law firm, there was one common thread that my friends and I in the profession quickly realised: successful lawyers actually command a lot of power. This power probably comes from possessing a “mysterious” knowledge and skill which people require in high-stakes situations — typically in a very important business transaction or in a dispute — where the consequences could either be very good or very bad for the parties concerned. Some people even resent lawyers because of this.

Generally speaking, most people reluctantly engage the services of a lawyer. Believe me, nobody does so voluntarily. Often, the gravity of the situation means that they have to approach a lawyer or entire legal teams for help. It’s a grudge service, borne out of necessity. Don’t ever let any pleasant attorney-client interaction fool you; I’ve been on both sides of the fence when a large invoice for legal fees has to be settled.

Here is an itemised list of tactical advice for business people when engaging a lawyer which will hopefully be helpful. I’ll start by highlighting red flags and then suggest how to know when you have the best lawyers on your side. My objective is to assist businesspeople uncover whether their best interests are being taken care of by their lawyer(s) or whether they are being taken for a ride while being charged a lot of money in the process.

I’m not claiming to be an expert, I’m just a guy in the trenches sharing my opinions. I anticipate backlash from my friends in the high-flying circles of the fraternity for saying things that they may not necessarily want their clients to know. But…. f*** it — here goes.

  1. Qualifications are not everything

Do not put too much emphasis on the degree(s) that a lawyer has. Sure, it helps if they went to a good law school (like Wits hahaha) but expect this as the bare minimum and do not let superficial titles like “attorney/solicitor” or “advocate/barrister” intimidate you. This stuff is not the yardstick of a lawyer’s ability. Look beyond it. What separates the great from the good is actual experience (transactions done, cases handled etc.) and what specific role the person played in this.

2. It’s not really about the “fine print”

Never employ lawyers who have what I call a “fine-print mentality”. Now, of course your lawyer should know the details better than anyone else in the room, but they should not be bogged-down in immaterial matters. Too many times, I bore witness to far-removed liability championed by a clueless lawyer threatening the closing of a deal. Good lawyers understand risk, but they do not advise their clients to avoid doing a deal because of some remote eventuality. Absolutely nothing in life is risk-free. Great lawyers mitigate risk creatively and spend the most time on aspects that move the needle.

3. Too much criticism for other colleagues

Be concerned if your lawyer spends too much time criticising the drafting of another lawyer (unless it is obviously atrocious). It is very easy to nit-pick at flaws in drafting when you are not the one holding the pen. There are virtually infinite ways to draw up a document and a lawyer can always convince you that his way is superior, especially if the draftsman/woman is not in the room to defend his/her work. It’s important for all businesspeople to be cognisant of this because if your lawyer is distasteful, you’re distasteful by association.

4. Clear, simple communication

From the perspective of a business person, clear communication is required. Most lawyers undermine clarity and hide behind legal jargon that nobody understands or cares about. I once read a decision in the English Courts [1] and stumbled across the following passage:

To reach a conclusion on this matter involved the court wading through a monstrous legislative morass, staggering from stone to stone and ignoring the mash gas exhaling from the forest of schedules lining the way on each side. I regarded it at one time, I must confess, as a Slough of Despond through which the court would never drag its feet, but I have by leaping from tussock to tussock as best I might, eventually, pale and exhausted, reached the other side

Bulls**t lawyers speak this way to their clients. In that passage, Lord Justice Harman is simply saying that “the Housing Act of 1957 is convoluted and terribly drafted”. The point is that legal language is so highly stylized that it conceals as much as it reveals. Sincere lawyers get to the crux of a point by speaking in plain and understandable language.

5. Petty wins should not matter

Bulls**t lawyers also like to haggle over every little point and are unwilling to concede even innocuous aspects. They make points for the sake of making points as if they were some kind of poet or philosopher. The business of business is to get things done. Great lawyers understand this very well and only make points they have to make.

6. The “know-it-all” lawyer

Over the course of a lawyer’s life, law school, clerkship and practice have all conditioned them to have an answer for everything. The long-term consequence is that it becomes difficult for lawyers to admit when they’ve made an error or when they simply don’t know something because the ultimate sin for a lawyer is being at a loss for words. If, after an extended engagement, you have never heard your lawyer say “I’m not sure about that one” or “let me check that and confirm” then you’re likely to have been lied to by your lawyer at some point.

7. Know when to go to a lawyer and when to stay away

Lastly, business people can avoid being hoodwinked by understanding clearly when not to seek legal advice. Let me explain using a personal anecdote: I have a good rapport with a certain chap who works at a sneaker store. Every time I ask him “should I get these kicks?” he has never answered by saying “Nah. Don’t buy any kicks today, maybe look at a new coffee machine since you drink so much espresso”. Similarly, do not expect a lawyer to look at a legal problem and intuitively see a business-based solution. Not only are legal services the way lawyers make their money, it is also the lens through which they view the world. You cannot expect your lawyer to not be a lawyer. In other words, only go to a lawyer once you are comfortable that the solution is only possible using that route.

8. The ideal lawyer for a business person

Having highlighted the red flags, it is maybe apposite to bring balance by highlighting the traits of an ideal type of lawyer for business people.

I once worked very closely with a brilliant commercial lawyer named Themba Zikhali (“TZ” as we used to refer to him with familiarity and endearment) who I think is a hidden gem of boutique commercial practice. Through TZ, I understood that a lawyer’s knowledge of the law alone is not enough to get what clients want. Observing him in action I noticed that, aside from the technical part of the law, what you want your lawyer to be good at is (1) a deep understanding of human conflicts and human motivations; (2) the power to effortlessly persuade; and (3) mastery of the nuances of logic and argument.

These are the 3 criteria by which to measure whether you have a sharpshooter in your corner. This is what will get you practical results and little else matters outside of this.

The bottom line

To be honest, the best way to deal with lawyers is to not have to deal with them at all. But lawyers are, indeed, necessary. You see, when the stakes are high, people change; people get emotional, sceptical and insecure; people forget or become distrusting of counterparts; circumstances change etc. So I think lawyers are here to stay for a long time in human civilisation, even with the advent of cognitive A.I.

If you’re a business person, I hope I have assisted in demystifying the bulls**t all too often inherent in the use of legal services. To my esteemed colleagues, I would be remiss if I did not underscore your necessity and, indeed, value to commerce. After all, in the words of M McCormak “Businessmen accentuate the positive, lawyers are left to wrestle with the negative, and all parties struggle toward a situation somewhere in between”.

[1] Davy v Leeds Corporation [1964] 3 All ER 390 at 394.

Thabu Siwedi is the Founder of Clausematics and TINT. He is contactable on Twitter. Any and all feedback is welcome.

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