08192017

BusinessQ Roundtable: It’s the Law

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Nov. 8, 2016 (From left) Rand Bateman, Snow Christensen & Martineau;
Chris Dexter, Dexter & Dexter; James Larson, Durham Jones & Pinegar; Rob Mansfield, Mitchell Barlow & Mansfield; Jeanette Bennett, BusinessQ Magazine;
Bill Fillmore, Fillmore Spencer. (Photo by Dave Balckhurst/UVBizQ)

Most commonly asked question they hear is, “Do I need a lawyer?” Yes, yes you do. Meet 5 of the best.


Jeanette Bennett, BusinessQ: Describe the legal environment in Utah County.

Bill Fillmore, Fillmore Spencer: In Utah, there’s a fairly collegial, professional attitude among us — although I could name a few exceptions, but they are few and far between.

Rand Bateman, Snow Christensen & Martineau: We could all probably name the same exceptions.

Rob Mansfield, Mitchell Barlow & Mansfield: Probably 2/3 of my work is out of the state for Utah-based clients, and it’s shocking the differences you see outside of the state. We really are a much more collegial bar. We are neighbors, friends. We can be opposite each other but then still get together on the weekend for a football game.

Fillmore, Fillmore Spencer: Even professionally, there’s still a fair amount of accommodation that goes on between us.

Bateman, Snow Christensen & Martineau: It’s the joy of a small bar — even more so in Utah County than in Salt Lake, because we know we’re going to be opposite that attorney again, so if we pull a fast one and get away with it, it will come back to us.

Mansfield, Mitchell Barlow & Mansfield: That’s the role of a lawyer — to maintain objectivity and not personalize the case.

Chris Dexter, Dexter & Dexter: Sometimes that can be disappointing to the client because they want you to envelop that cloak of acrimony to opposing counsel and to the party your client opposes. There’s an educational component that the role we take is to further their interests as best we can and they are not well served by us shouldering their acrimony as well as their burden.


Bennett, BusinessQ: How does this collegial environment benefit clients?

Mansfield, Mitchell Barlow & Mansfield: We are able to get things done far more easily.

Bateman, Snow Christensen & Martineau: No. 1 is cost. If you dig in on everything and the other side fights, you are going to spend more. When it’s collegial and professional, I can say, “I know Chris is going to get this discovery and it’s not productive to throw up roadblocks over every little thing.” It helps us get to the heart of the matter quickly and it lowers overall costs. That’s the objectivity Rob was talking about earlier.

Dexter, Dexter & Dexter: Attorneys sometimes take the bait and characterize their services by their aggressiveness and say, “Hire the bulldog or the shark.” Really, to the extent we use aggressive as a surrogate for effectiveness, we do a disservice to our clients.

Rob Mansfield, Mitchell Barlow & Mansfield

James Larson, Durham Jones & Pinegar: In contrast, I would say about 50 percent of my clients are from out of state. I’m in a dispute right now where we want to fight tooth and nail with someone in California. We want to prove a point. But again, it’s not Utah. When I have this in Utah, it’s all about, “Let’s talk it through.” We send a cease and desist letter and they say, “What can we do?’”

Mansfield, Mitchell Barlow & Mansfield: There certainly can be an advantage to taking a firm position. If you are going to have a series of similar cases with other competitors in the industry, take a firm stand to dissuade further litigation down the road. Ultimately, this one particular case may be more expensive but your overall legal bills will be reduced.

Bateman, Snow Christensen & Martineau: At the same time, you can be firm and not be acrimonious. You can even be aggressive but polite and friendly. Most judges despise attorneys who do namecalling, whose briefs are peppered with innuendo or veiled accusations against opposing counsel.

Mansfield, Mitchell Barlow & Mansfield: Judges don’t like acrimony. Juries don’t like acrimony.

Bateman, Snow Christensen & Martineau:  A dis-likable lawyer is probably a minus five to 10 points. If they think your lawyer is a jerk, you are going to have a much harder time winning your case.

“It’s easy to get an agreement set up when you don’t have any money at risk, but when you start making money, everyone’s view is different.” – Rob mansfield, Mitchell Barlow & Mansfield

Dexter, Dexter & Dexter: If he or she is a Ute fan, it’s minus 10 points. (laughs)

Mansfield, Mitchell Barlow & Mansfield: That depends on where the trial is. (laughs)

Fillmore, Fillmore Spencer: About 20 years ago, I had a client who was on his horse and he wanted blood. We talked through the economic issues, but we also talked about the consequences of having a battle. What’s the aftermath, even if you win? We ended up settling the matter on a win-win basis. About a month later, he showed up in my office with an authentic Nez Perce peace pipe and said, “Thanks for teaching me to smoke the peace pipe when I wanted to pull out the tomahawks.” Men and women of goodwill can usually find ways to resolve things if you create the right atmosphere.

Dexter, Dexter & Dexter: Bill, in my opinion, is the dean of the Utah Valley bar. He’s set the tone, along with his firm and others, of professionalism and to be the adults in the room. Our clients are paying us to give them adult advice that they may not like. We have to play that educational role and effectively let them know, “Hey, this isn’t in your best interest for me to go burn down the house for you.”


Bennett, BusinessQ: What are the major legal topics that startups should address?

Larson, Durham Jones & Pinegar: One of their biggest legal needs is education. “Why do I need a lawyer? Why do I need a patent? Why do I need a trademark?” The biggest question I get from startups is, “Do I need a lawyer?” I’m always like, “Of course you do!” I usually ask questions back. “Have you considered this?” “What are you trying to protect?”

Mansfield, Mitchell Barlow & Mansfield: You will have situations where friends start a business and they avoid the formalities. It’s easy to get an agreement set up when you don’t have any money at risk, but when you start making money, everyone’s view is different. Their self-awareness of their contribution may be different from reality. When you are dealing with family and friends, you are better served being more formal than less formal.

Dexter, Dexter & Dexter: If you sit down with an attorney early on, you can prevent so many issues in the future. I had a client who didn’t set up their LLC properly and it ended up costing them $1.7 million — and another $200,000 because they didn’t do something “just right.” Some people believe our valley is cheap — and certainly we are value-oriented. But you want to have things done correctly so there are not more costly complications later on.

James Larson, Durham Jones & Pinegar

Fillmore, Fillmore Spencer: One of the common characteristics of Utah Valley entrepreneurs, besides their energy and creativity, is that they routinely undervalue legal services. That’s a function of education and also a function of budget. Lawyers are sometimes viewed as a necessary evil. However, as Chris points out, it’s a penny-wise-pound-foolish mentality. We can save them a lot of money. Young entrepreneurs should see their lawyer as an unofficial partner in the business and take advantage of that experience instead of going to Legal Zoom and filling in the blanks. For one, they don’t understand the legal-ese that has additional freight in our minds and in a judge’s mind that they don’t pick up. The second reason is that they can’t understand what is not there. A lawyer is going to say, “Well, this contract needs to have these four or five provisions for your protection.”

Bateman, Snow Christensen & Martineau: Startups  need to get the entity formed and formed right. It’s a pain down the road when the guy you thought was an employee decides he’s half owner of the business and, as Chris said, can end up costing you millions. In addition, if you’re going to want to grow and franchise, you better have your trademarks in order. If you’re technology-based and have something patentable, you have to do that right away. To Bill’s comment about Legal Zoom, some of those form companies do some great documents. But a great legal document in this situation is the exact wrong legal document in this other situation. It’s not the text in the document that’s important, but it’s the person’s ability to apply the right document for your situation. That’s where the legal expertise comes in and that’s what you don’t get online.

Larson, Durham Jones & Pinegar: A good example of IP is Sodalicious vs. Swig. Is your business setup correctly and is your IP secure?

Dexter, Dexter & Dexter: I still don’t understand why people are paying three bucks for a drink. (Laughs). Along with what Rand said, communication is key. There has to be a high level of communication between the attorney and the client. You have to manage expectations. We’re interested in advancing the interest of the clients. To the extent to which we see and keep our eye on the ball, we can get the best results possible and make them happy in the long run.

“The onus is on the attorney to gauge a client and ask, “How are you going to contact me?” and accept those parameters. You can say, ‘We can text, but texts stop at 10 p.m.’ We can tell the clients, ‘Let’s make this a reasonable relationship.'” – James Larson, Durham Jones & Pinegar

Fillmore, Fillmore Spencer: The top legal concern I see for businesses is funding, funding, funding. We have a surplus of great ideas and young entrepreneurial types. But even post-recession, it’s still very difficult to get funding. So, one thing a lawyer can really help with is to educate on the funding options and help gauge expectations accordingly.

Mansfield, Mitchell Barlow & Mansfield: One of the benefits of a good relationship with your lawyer is introduction to other professionals. Like Bill said, it could be funding, it could be accounting. Your lawyer really can be a great source. We’ve all been around a long time and come across many professionals in different areas. That is a value-add that a lawyer can bring.

Fillmore, Fillmore Spencer: When you engage us, our network becomes your network. We want you to succeed, and for no charge we’re going to send you to this good patent lawyer or this funding source or marketing guru.


Bennett, BusinessQ: What legal needs do companies in “growth mode” have?

Bateman, Snow Christensen & Martineau: They need to start talking to an employment attorney. Companies don’t realize how precarious it can be to hire people. My firm does a lot of defense work, and it’s amazing some of the complaints employees will file. A lot of small companies get in trouble if they hire 50 people and find out they are violating this statute or that statute.

Mansfield, Mitchell Barlow & Mansfield: Once you start making noise, other companies will try to poach your talent. First, make sure you are treating employees correctly. Second, if they do leave, make sure they are leaving behind intellectual property and goodwill and not taking that to a competitor.

Bill Fillmore, Fillmore Spencer

Larson, Durham Jones & Pinegar: That brings to mind the newest legislation where they changed the non-compete provision. I advise a lot of companies on IP, but I have one client who wants me to do everything and I always tell him to go see someone who focuses on employment matters. No lawyer is good at everything.

Bateman, Snow Christensen & Martineau: I would much rather make a little bit of money off my clients each year by helping them avoid pitfalls than to make a lot of money to dig them out. Unfortunately, there are a lot of clients who step on every landmine and it’s usually because they aren’t listening to their attorney. There’s nothing more frustrating than a client complaining about a bill when we’re doing work we wouldn’t have had to do if they would have listened to our advice.

Fillmore, Fillmore Spencer: The classic example is the young entrepreneur who gets his employment law, tax law or patent law advice from the divorce lawyer in his elder’s quorum.

Dexter, Dexter & Dexter: We had a fun ad campaign a few years ago, “Because your home teacher doesn’t practice law.” As much as I like my home teacher, I don’t want him to perform surgery on me with a scalpel.

“The top legal concern I see for businesses is funding, funding, funding. We have a surplus of great ideas and young entrepreneurial types. But even post-recession, it’s still very difficult to get funding.” – Bill Fillmore, Fillmore Spencer

Mansfield, Mitchell Barlow & Mansfield: Getting free legal advice is worth less than what you pay for. When you go to a neighbor or a church colleague and ask for free legal advice, that person isn’t fully aware of the situation and is not getting all of the necessary facts as they give you off-the-cuff advice.

Fillmore, Fillmore Spencer: I’m afraid a lot of these comments sound very self-serving, but they are true.

Bateman, Snow Christensen & Martineau: One of the good things about using an experienced lawyer is they know other lawyers. If you come to me with a personal injury case I’ll say, “You should go to talk to Chris. He is going to give you much better advice than I would.” I’ve had people say, “I’m going to use my attorney because he charges half as much as you do.” They don’t realize that attorney is going to spend four times as much time as I would in that niche because I know the answer without doing four hours of research.


Bennett, BusinessQ: What should BusinessQ readers understand about how lawyers bill for their services?

Dexter, Dexter & Dexter: Communication is key. People can’t sign a blank check for $250 an hour and then have a bill for $4,000 this month and $6,000 the next month. There has been a movement to flat fees, where we say, “We can solve this problem for this amount.” It gives people a peace of mind. Certainly contingency fees are also important. Any time you can align your interests with the interest of the client, that’s powerful and can be done with contingency fees.

Larson, Durham Jones & Pinegar: It’s important to manage expectations. A lot of intellectual property work has taken that turn toward flat fees. This is what a trademark will cost you or what a patent will cost you. When I meet with clients upfront, I have an engagement letter and a fee sheet. I tell them what it’s going to cost and they say, “A patent is going to cost me $30,000?” And I say, “Yes, a patent is going to cost you $30,000.”

Chris Dexter, Dexter & Dexter

Mansfield, Mitchell Barlow & Mansfield: The flat fee really is a great notion if that type of matter can handle it. Litigation, unfortunately, doesn’t lend itself to that because you don’t know what the opposing side is going to do. You have someone throwing up obstacles and walls that you can’t always anticipate. You have to determine your ultimate goal and communicate that.

Bateman, Snow Christensen & Martineau: There are three keys for cost control for clients. First, legal problems almost never get better by themselves, so by ignoring it, it grows and will cost you more. Second, find an attorney who is experienced in that area of law even if they appear to be more expensive. Third, communicate with your attorney and give him or her the documents they ask for. If you do those three things you can reduce legal bills and you’ll have a happier attorney.


Bennett, BusinessQ: What advice would you give people about how and when they should communicate with you?

Mansfield, Mitchell Barlow & Mansfield: Every lawyer and client is different. Some work great with emails or texts and others need a phone conversation. This is a service industry. We need to be there for our clients, but we also have a personal life and must maintain boundaries. If crises arise we have to be there to deal with them, but if it’s not very critical, we don’t need to deal with it at 11:30 p.m.

Dexter, Dexter & Dexter: It’s tough. When a client comes in and sits across the desk, that issue they are trying to put on your shoulders is the most important thing in their lives. I recognize that and I have compassion for that, but I’ve also got dozens of other clients who feel the same way. We live in a world where the cell phone has become a ball and chain. Our clients are struggling with that same issue, that of communication responsiveness and their own lives and families.

Bateman, Snow Christensen & Martineau: The biggest negative of email is no one thinks things through anymore. I used to get a letter that said I need these five things. Now I get an email that says I need this. Fifteen minutes later or an hour later I get another email. So I’m constantly jumping back and forth. Unfortunately, I fear that as Generation Z owns their own businesses, they will always text us and expect constant responses.

Rand Bateman, Snow Christensen & Martineau

Mansfield, Mitchell Barlow & Mansfield: I started my law practice before emails. People used to write letters after thinking through it and then signing their name. An email is more like actual conversation and they don’t stop to think about the words they are choosing or what meaning they may have. Emails are the bane of every trial lawyer’s existence. People will say foolish things in emails.

Dexter, Dexter & Dexter: Unless you delete it and bleach, I’m just saying (Note: This conversation was held on Election Day).

Larson, Durham Jones & Pinegar: Without sounding like an ageist, I’ve got clients in Provo and we communicate almost strictly with text. It’s the only way I can reach them and the only way they will respond. I strictly email others or with some it’s a phone call. The onus is on the attorney to gauge a client and ask, “How are you going to contact me?” and accept those parameters. You can say, “We can text, but texts stop at 10 p.m.” We can tell the clients, “Let’s make this a reasonable relationship.”

Bateman, Snow Christensen & Martineau: Sometimes things someone would never say in a letter they say in an email and it comes out before a jury. The jury decides whether they like you or not, and if you have a foul-mouthed email about the other side and how terrible they are, and that comes out during the trial, you just made your case a lot worse.

“Attorneys sometimes take the bait and characterize their services by their aggressiveness and say, “Hire the bulldog or the shark.” Really, to the extent we use aggressive as a surrogate for effectiveness, we do a disservice to our clients.” – Chris Dexter, Dexter & Dexter

Mansfield, Mitchell Barlow & Mansfield: You made a more difficult, harder sale!

Bateman, Snow Christensen & Martineau: Now the jury thinks maybe you’re the problem, not your opponent. Anything you send in email, think carefully. I know people who will write emails and then let them sit for an hour before they send them.

Filmore, Filmore Spencer: This is not a trend. This is a long-term thing. This is societal ADHD. This instant information gratification sharing is not going away.

Mansfield, Mitchell Barlow & Mansfield: If you want to know anything, you just hold down the button for Siri and ask a question. Social media, Instagram and LinkedIn — people will continually post. Many lawyers post blogs. The dissemination of information is far easier and far less expensive now than it was 20 years ago.

Fillmore, Fillmore Spencer: But the volume becomes more burdensome. There’s less time for contemplation. It’s always reacting.


Bennett, BusinessQ: What do you wish your clients understood about your role as a lawyer?

Bateman, Snow, Christensen & Martineau: All attorneys and lawyers, with few exceptions, are looking out for your best interest. Sometimes that is giving you advice you don’t want to hear. We succeed by our clients succeeding. It’s not about how much I can bill them. In the long run, we want our clients to look back and say, “My lawyer did a good job; I’m a client for life.”

Mansfield, Mitchell Barlow & Mansfield: To have a successful attorney-client relationship there has to be mutual cooperation. Lawyers can’t read your mind. You have to cooperate and fulfill your side of the relationship to make it easier. You get better results, cheaper services and a long-lasting relationship. I’ve got a number of clients I’ve had for 20-plus years, and that results from a good-working relationship and mutual cooperation.

“A dis-likable lawyer is probably a minus five to 10 points. If they think your lawyer is a jerk, you are going to have a much harder time winning your case.” – Rand Bateman, Snow Christensen & Martineau

Fillmore, Fillmore Spencer: The lawyers around this table view the law as a grand profession. We want to help people. We got into law so we could be of service. It’s a position of power, frankly, to understand how the system works — and we try not to abuse that. We try to do that ethically and honestly.

Larson, Durham Jones & Pinegar: I see myself as a problem-solver and that’s what I want my clients to see me as. I want to show them multiple options.

Dexter, Dexter & Dexter: We like helping people. The rewarding times aren’t necessarily when you get a big check from a client. It’s when you’re shopping at Costco and someone comes up and gives you a big hug because you made a difference to them. I love practicing in Utah Valley among people like those around this table.

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