In brief - It is vital for you to communicate all
aspects of your matter
Choosing any consultant will always be a challenge. One of the
key ingredients for success when selecting a lawyer to advise and
represent you is being able to communicate all the aspects of your
matter and how you see your best possible outcome at that
There are several things to consider at the outset.
Communicating all the issues that are material to the
Prepare a list of all the facts and the issues that concern you
and assemble all the material that you wish to set out at the first
meeting. This information should be detailed enough to enable your
lawyer to assess the situation and determine what further
information may be required.
Will the lawyer that you have chosen be
Presumably you selected the lawyer you are meeting on the basis
of either the firm's reputation or a personal or professional
referral, possibly received via Facebook or LinkedIn. However,
before you decide to engage the lawyer, you should meet them in
person to determine for yourself whether you believe in their
competence and ability to achieve your desired result.
Is this the person that you want to represent
You should feel confident that you can work with your selected
lawyer, that they and their firm fit your profile and that they
align with the way that you want to project yourself to others.
Even though part of the selection process will be subjective, you
should also be guided by some predetermined objective criteria for
what you expect from a professional.
Only one side is going to win in court
The law can be viewed as a shield or a sword depending on the
result you seek in a negotiation or dispute. Beware of any lawyer
who guarantees you a successful result in a court case. For
hundreds of years there have been cases determined in courts where
there is a winner and a loser. At some point in time both sides
believed that they were going to be the winner, or the other party
was going to be the loser.
Clearly, if either side believed they would lose from the
beginning, a settlement would probably have been reached well
Consider the costs of litigation
Ask yourself, can you afford litigation? To determine a true
answer you should consider the financial aspect, the time that it
will take away from your business, the effects that the stress of
expensive litigation will have on your health and the damage that
could be done to your good name and reputation by any negative
You should also ask yourself whether you will be able to
communicate your position well in a witness box and how good your
lawyers, barristers and any other consultants will be at trial. Are
they likely to crumble under pressure?
Litigation should be your last resort
After you weigh up these considerations, you may well decide
that it is better to take a different approach. Ask yourself how
the law can be used to give you the best possible commercial
solution. What else might you need to do to achieve this result
while mitigating all the identified risks?
Working with your lawyer to achieve the best possible
There are a number of processes which will help you and your
lawyer work together to achieve the optimal outcome. These include
regular reporting, regular accounting to monitor your cost and
transparency in the reviewing advice and correspondence sent to all
parties, as well as regular review of your position, so that the
goals set out at the beginning can be reassessed if necessary.
Above all, be committed to honest communication. You may have to
face some unpalatable truths, but it is better to be fully aware of
the reality of your situation all the way along than to be
unpleasantly surprised further down the track.
We discuss whether certain clauses commonly found in ordinary commercial contracts could be considered to be penalties.
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