January 25, 2023

Releasing the Bush Lawyer Within - passing it on from one non-lawyer to the next

Each Co-Founder in a new business brings with them a speciality that goes to making the team as a whole greater than the sum of the parts.

Those specialities nowadays typically include skills in sales and marketing, customer management, technical, product development, business analysis and sometimes even finance, raising funds etc.

Rarely do these skills include legal, and rarely can any business in the phase of start-up through to scale-up afford to have every agreement looked at by a lawyer or have legal skills in-house. It is an unaffordable luxury and necessitates that Founders develop a practical understanding of the laws that affect them and have the ability to make commercial decisions about the practical implications.

You have all heard the axiom that in relation to commercial contracts – if you have to go to court you have already lost. While true, in early stage businesses it may be also true that if you have to even refer to the contract you may have already lost.

Who are you looking to enforce terms of an agreement with – most likely either your customers, suppliers, staff or business partners.

The likelihood of enforcing the terms of an agreement against a customer are pretty low and will mean they are unlikely to continue as a customer. The same with suppliers and staff.

Worst of all if you are in a dispute with your business partners then everyone is focussed on personal self-interest and hubris rather than on the business. Most likely the business is not yet profitable and if it is then it’s definitely not achieving what it should if you are taking time out to argue about personal grievances.

Jack and his Many Trades

So – in general the Founder team has to be a Jack of Many Trades and the ability to read a simple agreement – an NDA (Non-Disclosure or Confidentiality Agreement) for example – and get it turned around and finalised quickly without reference to a lawyer.

While small businesses have MANY things going against them to impede success one key advantage they should utilise is speed – speed of decision making, of turning around documents of doing anything that moves them forward that bit faster.

There are lots of things that can help you – using template agreements, using online lawyers, recycling agreements other have sent you and repurposing them – but it all involves the Founders doing the work to make it fit their own particular business needs.

Stage 1 for Founder Bush Lawyers

What kind of areas are you likely to have to get some knowledge of – either by researching, reading or asking others:

  • NDA’s – while rarely enforced it is a hurdle that has to be cleared to keep moving quickly
  • Normal commercial Agreements – whether these are your terms of service for a subscription product, your order form for a one-off product/service or a bespoke agreement that you have to negotiate different terms with every customer/supplier
  • Employment Agreements and any minimum terms in relation to wages or conditions that apply in your jurisdiction
  • Intellectual Property – initially something that is probably wrapped into both your Employment and Customer Agreements but may take on a life of its own as you grow.
  • Incorporation and Shareholder Agreements – its best to agree all the terms and the “what-ifs” upfront no matter how unlikely it may seem

Decide What’s Important

Don’t rely solely on lawyers – you understand your business better than any lawyer ever will.

If you left every contractual decision to lawyers you will run out of both time and money long before you achieve success.

There will be things in a contract you hate intellectually and consider completely one-sided and unfair. Have you ever read your mobile phone contract – bet you’d hate if you did – and if you did read it you didn’t try to negotiate it, but you still signed it so you could move forward with what you wanted to achieve.

Sure, ask the other side about the things you think are unfair, suggest ways to make them mutual etc but the majority of those items are in the “boilerplate”, the stuff that pads contracts out to so many pages and makes lawyers rich.

But don’t get stuck – the only important areas for a business trying to scale are the true commercial points that are the essence of your business that you need to handle as that’s what’s important. And the likelihood is if there is a problem you will have to talk it out with your customer anyway rather than trying to enforce a contract.

And if you hate the terms so much that you will from the point of signing onwards always be looking for ways to get around it, to terminate it or modify it – then JUST DON’T DO IT.

Move on – if they are that bad to negotiate with then they will be that bad to operate with going forward and having a bad partnership is a cancer for your business.

It’s a Positive not a Negative – be Shakespeare

So while the phrase Jack of all trades may nowadays conjure up negative connotations the full quote is:

“a jack of all trades is a master of none, but oftentimes better than a master of one.”

And it was meant as a compliment being originally used to describe William Shakespeare who would hang around theatres helping with staging, costumes and directing rather than being solely focussed on the specifics of being a playwright.

Additional must read: "Top 21 Biggest Challenges Tech Founders Face"

# Key takeways

A key aspect of being a good bush lawyer is managing risk. Understanding the real risks helps you assess when you really need to get the right legal advice from a lawyer - when needed.

  1. If you have to go to court, you have already lost
  2. Speed of decision making, of turning around documents moves you forward
  3. A founders team has to be a Jack of Many Trades
  4. Decide what is important
  5. Move on - just don't do it if you know it feels wrong

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