Be as Sharp as Your Lawyer: 10 Legal Myths
BY Steve Tobak
I've never met a successful businessperson who couldn't negotiate a solid agreement and didn't know how to protect his company's intellectual property.
Legal matters are too important to leave to the lawyers. We live and work in a nation of laws. So much of what we think of as business strategy and common sense is actually dependent on our knowledge of the legal system.
Executives and business leaders who’ve been around know that and they know it well. I’ve never met a successful businessperson who couldn’t negotiate a solid agreement and didn’t know how to protect his company’s intellectual property.
For some reason, the vast majority of small business owners, entrepreneurs, and managers think they can just leave all that to the attorneys. That’s just wishful thinking that’s remarkably naïve and flawed. It can also harm your business and your career.
No, I’m not a lawyer, but that’s really the point. After decades in the corporate and business worlds, I know what I need to know. And so should you. Here are 10 legal myths I bet you thought were true:
Business entities protect your personal assets. Forming a corporation or an LLC does provide some protection, but it’s far more limited than you realize. In most cases, if someone really wants to go after your personal assets, not only can they pierce your business entity, they will.
Patents and NDAs will keep your intellectual property safe. Filing effective patent disclosures with all the right claims is an art, a science, and expensive. Even then, big companies can steal your ideas because they have far bigger war chests (capital) than you and can outlast you in protracted litigation. If the company’s across an ocean, it’s even worse.
Attorney-client communication is absolutely confidential. Attorney-client privilege is absolutely not absolute. Not even close. There are all sorts of exceptions to the rule and requirements for it to apply. And a judge can even pierce the privilege under lots of circumstances. Happens all the time.
The best contracts are full of mind-numbingly complicated legalese. Nope. The goal of a good contract is to as clearly and simply communicate the terms and intent the parties agree to. Period. That’s what minimizes disputes and litigation after the fact. You don’t even need an attorney to negotiate and draft a legal agreement. Sure, you might want to have one with appropriate expertise review your agreement to make sure all the “I”s are dotted and “t”s are crossed. He might even make some smart suggestions. But don’t let him turn it into legal gobbledygook that nobody can understand.
Your online blogs, posts, and comments are protected from libel claims. Wrong. Everyone has the same rights and responsibilities under defamation law, so said the U.S. Supreme Court. And don’t think for a minute you can just get away with writing “in my opinion.” If what follows sounds like a statement of fact, you may very well end up having to defend your claim in court if it indeed damages someone’s reputation. It’s all about context.
You’re liable for damages due to injuries on your property. This has to be one of the biggest myths of all time. People slip, fall, hurt themselves, and sue, right? Maybe, but that doesn’t mean they’ll win. You’re not responsible for the negligence, clumsiness, stupidity, or criminal acts of others, even if it happens on your business property. A related myth: liability insurance doesn’t cover all injuries on your property. If you were criminally negligent or inflicted intentional harm, all bets are off.
You can’t be sued for a crime you didn’t commit. You can be sued for anything, anytime, by anybody, for any amount. There are very few protections against frivolous litigation in America. You can get stuck spending tens or even hundreds of thousands of dollars defending a suit that never should have be brought. Not only that, but once you get in front of a judge and jury, anything can happen. Tort reform in some states like Texas and “loser pays” in the U.K are definitely steps in the right direction.
Attorneys are a necessary evil to use as a last resort. It amazes me how skittish people are about spending a few hundred bucks to consult an attorney who might actually save them a fortune and a lot of pain down he road. Legal strategy and planning doesn’t start when you get into trouble. It starts when you start your business, company, negotiation, whatever. Attorneys shouldn’t drive your legal strategy, but if they’re good, they’re expertise can be invaluable.
Brand names are all about filing trademarks. Obtaining and protecting trademarks are a relatively complex affair. First, they’re limited to specific markets; there’s no such thing as a blanket trademark for any product in any industry. Second, you are afforded some protection even if you don’t file for a trademark and, if you do, you can lose it under certain conditions. These days, I tend to think that getting the .com URL is more important.
You can’t be charged with a DUI on private property. I don’t know why, but this is such a widely held misconception it’s shocking. I’ve even heard a police detective and a third year law student swear up and down that it’s true. It’s not. You can even get a DUI when you’re sleeping it off in the car in your driveway with the keys in your pocket. And get this. You can be having a beer on your front porch and end up being charged with public intoxication if you’re raucous and unruly enough to attract an officer’s attention.
Here’s the bottom line: If you’ve got anything worth protecting, you’d better understand the law. When it comes to legal matters, what you don’t know can really, really hurt you. And that goes for your career, your business, your finances, your intellectual property, your physical property, and yes, even your personal habits. No kidding.