Memo to your attorney

Here’s a ghost-written memo to your attorney for this first column of 2007 about the legalities affecting the control engineering business. Now don't clip this out of this magazine; that would destroy the purpose. No, just re-type it, add your own two cents, and pretend it was from you. (All right, all right—for those of you concerned about intellectual property rights, the magazine...

02/01/2007


Here’s a ghost-written memo to your attorney for this first column of 2007 about the legalities affecting the control engineering business. Now don't clip this out of this magazine; that would destroy the purpose. No, just re-type it, add your own two cents, and pretend it was from you. (All right, all right—for those of you concerned about intellectual property rights, the magazine and I hereby assign to you a one-time-only irrevocable license to use my words for the above-stated purpose.)

TO: My attorney
FROM: One of your many clients
RE: Our relationship

Happy belated New Year! Although I realize you are away on your annual vacation to Barbados this month, I thought I would try to catch up with you with a few helpful suggestions for our business relationship in 2007. Please accept this for what it is—the equivalent of messages in a suggestion box. I am sure you have a few things you would like to put in a suggestion box for me as well—like the way our company literally continues to do business on a handshake (I know that drives you crazy), or that time we waited 90 days before paying you. Anyway, here are six ideas I’d like to share with you:

Suggestion No. 1: Use plain English. Although I am an engineer and run a $10 million a year business, I am not a lawyer, and it does not impress me that you speak in legal jargon. Instead, it makes me think that you are trying to bedazzle me with how smart you are. Translate your legal terminology. Then I will think that you are truly smart. Don't say: “This term is probably unenforceable based on the doctrine of laches." Tell me: "There's a good chance the law will say they waited too long to hold you to this requirement, and you can get out of it."

Suggestion No. 2: Sometimes I need a risk assessment, not a rewrite. Don't always rewrite the contracts we send you. Sometimes we are given contracts on a "take it or leave it" basis. Our choices are really two: sign the thing or walk away. It would be helpful for us if you could learn how to "assess the legal risk" in a page or so. That would allow us either to build the risk into our bid or decide that the risk is simply too high.

Suggestion No. 3: Take the time to understand our business. We are not the high-tech equivalent of a plumber. We are integrators, automators, and control system specialists. Know what a PLC is. Be able to distinguish MES from SCADA. No, we are not going to ask you to do any programming anytime soon, but it would give us a bit more confidence that you understand our legal risk if you could at least describe what we do in a sentence.

Suggestion No. 4: Give some thought to throwing us a freebie or two. No, I'm not talking about tickets to an NFL game or a case of wine. I'm talking about an occasional "off the clock" phone call, or joining us at one of our brown bag lunch gatherings of project managers to talk about the 10 worst contract clauses or how to protect the IP of our code. If you invest in us, we'll invest in you.

Suggestion No. 5: Do the math. Don't always leave it to us to decide whether a lawsuit is worth it. We might be too irrational at the time to think about that. We would appreciate some input from your cooler head. If even a "win" would show up as a "loss" in our financial statements, tell us.

Suggestion No. 6: Give me your cell phone number. Suffice it to say that your secretary and I are now on a first-name basis. Enough said.


Author Information
Mark Voigtmann is a lawyer with Baker & Daniels LLP (Washington, DC; Indiana; and China). His group assists integrators and automation end users in structuring projects and resolving disputes. Contact him at Mark.Voigtmann@bakerd.com .




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