Are You CERTAIN? When it Comes to Legal Issues, No, You’re Not.

One of the hard things for business people dealing with legal issues is that there seems to be so much uncertainty. Correction – there usually is uncertainty.  

That’s tough for clients. So many are used to feeling mastery over their professional affairs, and they appropriately want to plan their affairs and know how much time and money they will be spending on a dispute in the months ahead, or whether they are going to end up with a dispute at all. But often … they can’t.

In part this feeling of uncertainty is just lack of familiarity. Businesses confront all kinds of uncertainty regarding their people, their customers and other business relationships, and their ever-changing business environment. Sometimes clients who are less comfortable with legal processes overreact to a tough negotiating position from the other side as though the situation is hopeless. I say to them, “Hey, it’s a negotiation … you do this all the time with your customers and your suppliers and your employees. Let’s make our next move, just like you would in any other business context.

That reassurance kind of works. Sometimes.  

But some things really are different about the legal process. First, there is a lot of grey area. In my area of employment law, for example, the disability discrimination laws require employers to reasonably accommodate employees with a disability, in other words make variations to their regular policies and procedures to assist the employee in performing the job, but only up to a point. Well, what is that point where the employer has done enough to comply with the law? How do you define “reasonable”? We have been trying for 30 years now (since the federal Americans with Disabilities Act was passed), and it remains the quintessential “fact specific” inquiry. As I tell clients, each one is different – a snowflake. There is no roadmap.

The other thing about legal issues is that, when it becomes a dispute, there is a third party decision maker who is a human being. So they do not always behave as we would expect. Some behave differently than others. Sometimes the same person behaves differently on Tuesday than on Monday. Two different judges or Equal Employment Opportunity Commission investigators might give different answers to the question: Is this a reasonable accommodation? You get it.

Business owners may be thinking, “Is that supposed to make me less frustrated? Isn’t there anything we can do about it?” Here are some ideas:

1. Some degree of reality checking is in order. As noted above, right or wrong, legal uncertainty is reality. It is a cost of doing business. Whether you knew or not, you signed up for it.

2. Emotion doesn’t really help. Get it out of your system, we are here for it (though it is not efficient at all to use your lawyer as therapist), and it’s normal and OK to be upset. But then let’s focus on options and the potential risks and rewards of each of them.

3. Get a lawyer you trust, and then … trust them. Your lawyer should want your input, they need it, and something is wrong if they aren’t seeking it out and listening. But there is no point paying what you pay for legal advice if you are not going to rely heavily on them going through processes they have been through many times, and you haven’t. Here are some ideas on identifying the lawyer you can trust.

4. Understand that, because there are parties you do not control (adversaries and/or those third party decision makers), this is not like mapping out a road trip before you get in the car. This is a chess game – your next move may be different depending on what one of those other players’ next move is. You just have to play the game, one move at a time.

5. Do the math. You are probably looking at various options and scenarios. Your lawyer should be able to give you the options, then advise you about the risk, rewards, and likelihood of each. It should not be a guarantee, because there are no guarantees with human decision makers, but it should give you the ability to make what is most likely to be the decision that suits your objectives and your tolerance for risk.

Perhaps unfortunately, you are stuck with some uncertainty. You can’t know exactly where you will end up, whether it is with a tricky employee issue, somebody across the negotiating table, or an adversary in a lawsuit or other dispute. But if you work on the steps above, what you can be certain of is that you and your team can at each step make the best decision for you under the circumstances. That’s pretty good.

This article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.

Barnes & Thornburg LLP is a national, Midwestern-based business law firm that strives for a more entrepreneurial and cost-effective approach both to client service and its own business. Read more Metropreneurial Legal Insights.