Why Start-Ups Should Hire Attorneys Who’ve Been Through the Start-Up Journey

If you’re a “founder”, how many times have you tried to convey the rollercoaster experience to your friends and family and felt like they would never fully understand?  It’s only when you talk to other founders that you really felt connected to someone knowing they’re going through or have gone through that same journey.  It’s when being a CEO means being a Chief Everything Officer.  It’s when you live and breathe something you’ve created out of an idea and nurture it to fruition.  It’s losing sleep at night because you don’t know how you’re going to pay this month’s credit card bill and you have debt collectors calling you daily.  Failing.  It’s having the best morning ever because you closed an important deal and then dealing with the headache of vendors giving you the run around later that afternoon.  It’s the weeks and months of isolation and singular focus on achieving your mission.  It’s dealing with the fear of failure, getting over it and then dealing with the fear of success.  You don’t want to disappoint your spouse, your kids, your parents.   Thinking you’ll be an embarrassment if you don’t hit maximum capacity within a year of starting your company.  Failing again.  How am I going to pay my employees this week?  How am I going to pay myself and pay my rent?  Jumping for joy at a new promising joint venture.  Joint venture falls through. Failing.  Learning.  Growing.  Getting Harder, Better, Faster, Stronger.  Answering to yourself. Making fewer mistakes. Learning how to listen.  Learning how to lead. 

Sound familiar?  It might be a cliché but the fact is – this is the typical journey we go through as start-up founders.  We’re dreamers and doers.  Publish and iterate.  So while you’re building your company wouldn’t you want to get the most tailored and insightful advice possible?  Sound legal advice and guidance can form the backbone of a company.  Start-ups deal with a million and one things every day – the last things on their mind are legal structures, contracts, IP issues and whether someone is considered an “employee” or an “independent contractor”.  They’re thinking about growth strategies, marketing, branding, sourcing, tech development.  They’re thinking about how to run a business.  So when they get legal advice, shouldn’t it be in that context? 

I don’t say any of this to knock lawyers who haven’t started their own company before.  There are of course many outstanding lawyers who have guided start-ups through the process from beginning to IPO.  But I think for most start-ups, other than cost, they want legal advice as an input to fit in with their overall business strategies.

Legal advice in a vacuum is not nearly as valuable as legal advice given in the context of their business. 

I’ll give you a small example of how there’s a value add.  I just started working with a client who had a trademark application issue and needed to respond to a final office action refusing his mark based on a likelihood of confusion with a registered mark.  The (prospective at the time) client was speaking with me and also with another attorney (shopping around).  The other attorney told him there was only a 10% of succeeding and left it at that.  I estimated there was a 35-45% chance of success (the difference in % of success isn’t the material point here).  The other attorney and myself each offered to waive our fee to file a new trademark in the event the office action response was not successful.  The key difference in our response, however, was I pointed out to the client that while there may not be a high chance of success, it was important to consider business related factors.  Specifically, it looked like the client had already invested significant time and funds into branding.  The other lawyer was effectively saying just file another mark altogether but when given the context of expenses for branding, the cost benefit analysis is drastically different.  The client ultimately decided to retain me (he’s been great to work with and I’m excited to see his company grow) and I’ve been able to advise him within the context of his business.

Founders Understand the Importance of Creative Fee Solutions

Another way in which attorneys who have founded their own companies can add value to prospective and existing clients is by offering creative fee solutions, which many attorneys may not consider.  One of the realities of bootstrapping a new company is that funds are tight and it can be hard to part with any existing money you have to hire an attorney (for something like trademark prosecution, let’s say).  A lot of entrepreneurs in that position file trademarks themselves (which I respect and it can sometimes go through without any issue) and are surprised and frustrated when they get an office action letter which can sometimes require a tedious response and, yes, hiring an attorney (cringe).

I recently retained a client (who I also love working with – and btw, I have to say, I’m lucky because my clients have been amazing, inspiring entrepreneurs with a spirit for life and adventure) who had a somewhat complex set of issues in a trademark office action refusal letter.  Typical attorney fees for something like this are expensive.  He came to me and explained the background, the business context, and what he was ultimately trying to achieve.  While many attorneys might have said, “this is the fee, take it or leave it”, that wasn’t really a viable option here.  Proceeding with the response would have been expensive but ditching the application would also be an unfortunate consequence because the mark is really great and there is a chance of success.  Instead of quoting a fee and that being that, I proposed what I thought was a creative solution (as did he) where I would charge a lower fee which would entail me reaching out to the respective parties involved to see if they would be open to negotiating a consent agreement.  If they resist, I’d file a new mark for him and waive my fee.  If they’re open to it, the client would have the option to pay an additional flat fee to proceed.  By taking this approach the client isn’t obligating himself to an expensive proceeding without security of outcome and has some flexibility with how he wants to move forward based on a sequential set of steps.  And I get to work with a new client whose business is really cool and who I look forward to helping grow.

At the end of the day, there’s a certain connection and understanding between founders and, for me at least, I think there’s so much potential value that an attorney who’s been through the journey can add to someone who’s going through it.   It's a large part of why I cater to start up companies and offer my monthly subscription based in-house counsel program.  Start Ups want a dedicated legal advisor they can call or email whenever they want and not have to worry about getting billed for every 6 minutes.  It's just common sense...

If anyone wants to connect or collaborate, I'm an open book and love speaking with new people.  You can contact me here!