Comment by stdbrouw | Hacker News Reader

Comment by stdbrouw | Hacker News Reader

I wonder if it's really that rare for lawyers to look at a case from a strategic / economic point of view? When at some point in the past I was considering suing a company for breach of contract, that was pretty much what the entire initial conversation with our lawyers was about: they considered the timeline, probability of winning, costs for the lawyer'ing, costs for external experts, ability to recoup legal costs if successful or to incur those of the counterparty if not, ability of the counterparty to pay, alternatives to litigation and so on.

After about a day of prep work on my part, having them read through that prep work for about an hour and then discussing it with me for another hour, we concluded that the expected outcome was break even, with a time investment that was decidedly not break even, and did not proceed to litigation. They really helped our company to look at the problem objectively and without emotion, and I really hope that's not a rare experience!

(That said, I do understand that strategies for successfully dealing with being sued might need to get a bit more creative than those for deciding whether to sue.)

I also had an experience like this, where we found a great lawyer who basically explained to us the social dynamics of the particular arbitration court that the legal battle would be fought out in, and how if we can establish a paper trail that just made the guy suing us look like he was acting in bad faith, that it would be hard for that guy to make his case. Then our lawyer helped us craft emails without being emotionally involved like we were to socially engineer this outcome, and then came out with a nice settlement at the end once his lawyer convinced him that he was in trouble.

I think finding these people is a dark art, but they exist.

It is not rare (among competent counsel, at least).

You seem to know what you're doing, but for other readers, the time to think about breach of contract and litigation, and the time to talk with your attorney, is before you enter contracts and business dealings. An ounce of prevention is worth a pound of cure, but many mistakenly consider prudent consultation and planning to be a waste or a drag on the bottom line.

> It is not rare (among competent counsel, at least).

While this is true lawyers are still lawyers, and you're paying them primarily to give you legal advice. The best will be able to also consider wider business perspectives, but at the end of the day they're still going to have a bias towards doing what is safest from a legal perspective which you need to weigh up against other risks for your business.

Going back to the point in the parent article, educating yourself on the legal side so you're going into the discussion on a more equal footing is a pretty good idea in general.

>I wonder if it's really that rare for lawyers to look at a case from a strategic / economic point of view?

I'd say it's more likely that they're aware that their client simply isn't going to like the answer.

If a client is all fired up about wanting to sue someone you can caution them to reconsider, but at some point they'll just go "fine I'll find someone who will do what I tell them to". Litigation doesn't put people into an open & receptive mindframe normally.

> strategic / economic point of view?

This is very much what you want from a BUSINESS lawyer. And what the author apparently didn't understand. You, your business, the other guys ideally - nobody in here should be there for ticking boxes and the exact details of the law. What you are sorting out with a business lawyer is business issues, which need to be resolved in pragmatic business terms. It's not a legal puzzle but a business puzzle.

Same thing from the point of view of writing a contract, or writing or answering a demand letter: The point is to solve a business problem - not satisfy some ideal of the law. And the business lawyers you want do understand this and can be amazing at finding the right terms and shortcuts and at helping you come to an understanding of what matters and doesn't. And yes, these lawyers very much exist.

People often argue that it's a lawyer's job to point out and try to protect you against anything that could possibly go wrong - with the result that indeed it's impossible to run a business. No, that's not the job.

But it takes time to find a great business lawyer, so this should be part of the tasks right from the beginning when founding a business. That lawyer won't cost all that much initially - and they will already be useful working on contracts.

Same thing for in-house corporate counsel, when you get to that. Some amazing ones who can defuse a situation in an instant - and others who spend their life making things impossible.

Now, it might get to the point where the business lawyer helps you understand that all alternatives have been explored and it's time to spend serious money on courtroom litigation specialists - but hopefully that's only seldom.

I dunno about the US, but every lawyer I've ever hired was like this. Maybe it's more regulated in Germany or something. They run the math with you and find the optimal strategy (or the least bad one), not create a black hole of costs towards an uncertain outcome.

Professional liability carriers and disciplinary counsel generally frown on attorneys not giving their all. They are expected to be zealous advocates.

Zeal is, in many jurisdictions, an outdated concept and standard. Even where it still exists, other considerations outrank it — such as candor to the tribunal.

Re: Zeal As lawyers, as part of obtaining our professional liability policies, we have to attend seminars about mitigating malpractice claims. You'd be surprised how often --an attorney advises A, --the client wants to do B, --the attorney advises the client of the downsides of B, and has the client sign a document stating they understand the risks of B, --they do B, and have a sub-optimal result, --client sues attorney claiming they should have done A, and they weren't adequately informed of the risks of B.

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