The Best Option: A Lawyer With VT Industry Experience
In this Readers Platform, your author talks about how choosing the right counsel can make all the difference.
While seemingly narrowly focused, the vertical-transportation (VT) industry is, indeed, multifaceted and affects, or is affected by, a substantial cross-section of the corporate community. Industry participants include equipment manufacturers; service companies; component part suppliers and integrators; developers; general contractors; architects; mall owners and operators; condominium associations; consultants; municipalities; inspectors; unions; insurers; and myriad other groups, trades and professions.
Every attorney with a special focus on this industry understands that each participant has a unique set of needs. While the demands for representation can be daunting, the challenges are welcomed, because no two matters are identical, and they always make for an interesting legal journey.
As someone who has continuously represented various participants in the VT industry concerning a broad spectrum of matters, I know the complexities are many and the outcomes are unpredictable. But, time and again, experience and familiarity have proven to weigh heavily in both the approach to each matter and, eventually, the outcome. I have worked alongside excellent lawyers with a focused practice, but I have also seen lawyers who simply did not have the depth of knowledge, experience, or familiarity with the products or unique legal and business issues in the VT industry to be a formidable or even an effective advocate for their clients’ position.
Outside attorneys representing a client in the VT industry may perform many tasks, from counseling clients on contracts to digging through boxed records in warehouses; from commencing bid protests to negotiating multiyear service agreements; and from going to the scene of a catastrophic accident to litigating that matter in courts of law and courts of public opinion. A number of elements must be gauged before engaging a particular attorney or firm as outside counsel.
Consider the Lawyer’s Experience in the Industry
Most people who need a heart transplant won’t use a cardiologist who never performed surgery before. The idea of using an attorney who is cutting his or her teeth on your case is, at best, worrisome and can be totally wrong-headed and, ultimately, costly. Significant experience in the VT industry will lessen the time the lawyer will spend trying to understand a given matter. Substantial familiarity with similar matters is perhaps the most important factor in evaluating prospective counsel.
Even with experience in the industry, a word to the wise: consider the type of clients the attorney has represented. Has he or she only represented service companies? Or, has the lawyer also represented manufacturers, suppliers, premises/equipment owners, general contractors, consultants, inspectors, etc.? Even if your need for representation is limited, a lawyer’s experience from different perspectives will be more than valuable — it could be the difference between success and failure.
The Advantage of Reputation
Depth of experience also begs the question: does the lawyer have a reputation in the relevant community that may communicate an appropriate message to the clients’ adversaries?
If he or she is a known entity, it is far more likely that counsel will be the intimidator, not the intimidated, which may advance the probability of a favorable outcome.
Consider the types and complexity of matters. If the prospective lawyer usually handles small collections disputes, this might not be the best person to focus on a catastrophic claim. The nature of a prospective attorney’s experience may be just as important as the amount of industry involvement.
Personal-Injury Trial Experience
If you are looking for outside counsel to handle a personal-injury or product-liability claim, find out if they have ever personally tried similar cases or handled appeals. If the answer is no, there’s reason for pause. Early in my career, I learned that the most valuable experience for any litigator is to try cases. Defending a judgment or verdict on appeal hones that perspective even further. Trial lawyers think differently than general litigators; they focus specifically on issues that will most influence the outcome of the matter in the minds of whomever will decide the matter — normally, outsiders to the industry. If, however, your goal in choosing outside counsel is to inundate the other side or just to manage prolonged litigation to mitigate risk and resolve the matter without trial, a general litigator may be an excellent option.
Most people who need a heart transplant won’t use a cardiologist who never performed surgery before. The idea of using an attorney who is cutting his or her teeth on your case is, at best, worrisome and can be totally wrong-headed and, ultimately, costly. Significant experience in the industry will lessen the time the lawyer will spend trying to understand a given matter.
Knowledge of Codes and Regulations
If you have issues controlled by laws, codes or regulations, question the experience and familiarity your counsel has on interpretation or enforcement and ask for examples where these issues impacted the outcome of a matter or case. Most attorneys can find a current law or code quickly, but real experience working with applicable laws and codes is more important. For example, ASME A17.1 has a substantial influence on elevator manufacturing and service companies. There are, however, different versions of A17.1, and variables such as the installation year of the equipment and any modernization work may dictate which version applies. A simple search for the most recent version of A17.1 may provide inexperienced counsel with code text that has yet to be adopted in their jurisdiction. There are also many building codes, electrical codes and fire codes that influence the work of manufacturers and service companies. Does the prospective lawyer have familiarity with the range of codes or regulations that may apply to a type of claim or given set of facts? Can the lawyer tell you whether the law of the jurisdiction is favorable or unfavorable to the matter? Given that the interpretation or application of a law, code or regulation may often be outcome-determinative, this knowledge is essential for decisionmaking throughout the pendency of a matter or case.
Understanding Your Business
Every participant in the VT industry has a unique set of objectives and its own organizational model. Your prospective counsel should be deeply familiar with your business as a business and not just as a paying client. Do they understand your organizational structure? Your recordkeeping? Your history and evolution? Do they understand how your organization views its role in the industry?
Generally, litigation results when business dealings fail. Litigation is the business of litigators, not a goal for businesses. Except for law firms, the goal of most organizations is not to be in litigation — it’s costly, distracting and has tremendous impact on conducting normal operations. In those instances when there is no other option but to litigate, the goal is to achieve a favorable outcome. Thus, it’s critical that your outside counsel consider the business ramifications of their actions in the context of the ongoing business.
I recall when a client once became embroiled in a flurry of lawsuit threats against a general contractor with operations in multiple states. I was brought in to prepare the lawsuit documents and load the cannons in the direction of the general contractor when I discovered an opportunity for the client to bridge differences with the general contractor by rescuing them in a major job in another state. We not only resolved the dispute that caused my involvement in the first place, but the client was in a far better position than it could have hoped for – it eliminated its receivable and booked new business. It was vital to take a moment and look at the big picture. Sometimes, clichés have merit!
We have become increasingly dependent on online resources. They are inexpensive, readily accessible and rich with information. These resources, however, may not be adequate for a client in a niche field such as the VT industry. These clients may be better served by counsel with their own library of relevant legal and technical materials. Maintaining archives of industry materials, expert deposition transcripts, trial exhibits, case law, and other documents can provide tremendous information and valuable insight from precedent-setting cases or minor points of law. An onsite library lessens research time and gives an inherent advantage in knowledge and resources.
Outside counsel also needs to know other professionals who can provide perspective. An arsenal of contacts that can be called upon in other venues as a resource will be a significant benefit. Lawyers with similar experience, contacts in consulting firms, governmental or other executives in similar roles or even competing industries are additional, valuable support. Your outside counsel should have these contacts and be willing to tap into them.
Accessibility and Cost
Many legal issues arise at a moment’s notice, and a delayed response could potentially be the difference between a deal struck, a contract breached or evidence lost — or not. As important as it is to retain counsel with knowledge and experience in the industry, it is equally important that your lawyer always be available and responsive by email and cell phone. Your lawyer should provide you with backup contact information in the event he or she is unavailable. Everyone is busy, but the best attorneys make all their clients feel like the main priority.
Payment to outside counsel is a paramount consideration. There is a paradigm in the legal profession similar to most other professional occupations: more-experienced lawyers can, and should, cost more; but, the more experience, the more efficient they should be, which should offset the higher rates. Proficiency and efficiency may not completely balance out higher rates, but the difference should be justified by the premium qualities a lawyer brings to the table, such as resources, contacts and accessibility. But, no matter what premium qualities a lawyer may have, the lawyer should charge rates that are fair and should be flexible to your needs. Express whatever concerns you may have to the prospective lawyer early in any conversation, and you are more likely to see flexibility in the rates.
Many organizations work on budgets, and it is fair to ask your lawyer to, as well. Experienced counsel can usually gauge within a fair range what they anticipate their fees may be for particular work. If he or she cannot, that may be another reason for pause. Budgets should generally be phrased in ranges, rather than absolutes. They are not contracts but fair expectations, so ask for any budgets based on mutual expectations, not just their expectations.
It is unfair to penalize attorneys if they marginally exceed a budget, because many variables occur in the legal profession. Budget expectations, if made from sufficient experience, are based on a usual course of events. However, it is fair to have a method in place where counsel can notify you if a budget may be exceeded. An extraordinarily high invoice should not be how a lawyer first communicates the budget was exceeded.
Whatever fee arrangements you’re comfortable with, be it the traditional hourly charge or a flat fee structure, you should inquire about willingness to be flexible, to offer advantageous fee structures and/or adjust fees when any budgets are affected. More flexibility will give you more comfort. If your prospective counsel is unwilling to negotiate with you, that may be a sign of how the rest of your professional relationship may unfold.