Monthly Archive:April, 2010

How To Find Your Start Up Lawyer

There are any number of ways to go about finding the lawyer that is the right fit for your new company. Matt Bartus recently posted his thoughts on some of the questions you should ask.

Overall, I agree with Matt, you should ask all of the questions he poses and evaluate the answers. However, I have a few additional points that you may wish to consider:

1. If you are bootstrapping your company entirely, and do not expect or intend to take any venture financing because you intend to build a successful cash business that you want to privately control, you may need to question much of the traditional “start-up” legal (and business) advice.

Specifically, if you are covering your own costs out of pocket, you will probably best served by finding two or three good specialized solo attorneys or attorneys at smaller law firms who specialize in the types of services you will need for small emerging businesses. These attorneys are likely to offer fast responses to your needs in the areas where you have issues, but they will have significantly less overhead (and thus significantly lower fees) than a traditional large law firm.

While many large law firms defer billing if they believe you will be getting venture capital funding or if you will be experiencing a liquidity event in the near future, if that is not your goal, it is likely that you will be asked to pay your fees to keep your account current.

2. The large law firm industry’s focus on “Senior Attorneys” “Junior Attorneys” and “Partners” is very different from the meritocracy within the start-up culture.

Rather than focus on how advanced an attorney’s skill set is, most large law firms categorize attorneys solely based on the number of years that each attorney has been in legal practice. This means, that in most firms, the titles are not related to how talented or how effective the attorneys are (with the exception of equity partnership, which often is an indicator of excellence as it is peer-selected).

It is possible that a Junior Attorney is actually a professional with 15 years of relevant business experience coupled with 2 years of legal training. In fact, at one law firm where I worked, an individual with a PhD and 18 years of relevant biotech experience started on day one as a “first year associate” in patent prosecution alongside his 24-year-old colleagues who hadn’t worked a day in the professional world. So, while I would agree with Matt that Junior Attorneys are often not more cost effective than attorneys with more experience, that is not always the case.

On the other end, it is possible in some law firms to earn a business card with the title of “Partner” after a set number of years (often 7 or more) so long as the attorney has billed the requisite number of hours each year. In these law firms, the partnership is often stratified between equity partners, income partners, partial equity partners, etc. An income partner may or may not be very talented, but the “Partner” title alone is not sufficient to guarantee that they will provide the skills you need. So, again I agree with Matt: ask for references and follow up.

3. A good solo or small firm attorney can act like in-house counsel — a cost-effective go-to first responder who evaluates the risks and, if necessary, can act as a gatekeeper to help manage the additional service providers who may be necessary to get the job done.

I work in many capacities with my clients, but the most common role I play is this — my clients have identified that the majority of their day-to-day legal needs fall into the category of “commercial contracts” that focus on intellectual property in all of its forms, services, and money. Because this is my specialty, I provide them drafting, editing, advice and legal analysis in this category, and when they ask for something outside of my expertise, I explain my relative inexperience, and let them know that I have a choice:

a) If I think it’s close to my practice area I can do the research and determine whether I think I can learn what I need to know to do a good job and then offer to do it while writing off my professional education time; or

b) I can refer them to someone I believe is a good fit for their needs.

In this way, my role as a solo practitioner is much more like the role a dedicated in-house counsel plays within larger companies (in-fact, I work on-site to support an in-house legal department of a public company one day per week, and in that capacity, I’ve been impressed by how important management of outside law firms is to running a successful legal department).

So, yes, a solo practitioner or small firm attorney who specializes in transactional work can’t walk down the hall and ask a litigation partner how to manage a dispute. But, if they are good, they should have a great network of qualified attorneys to whom they can refer. They can call litigators with whom they are currently working (I’m working with two litigation partners on a dispute for one of my clients right now), or with whom they’d like to work in the future (I’ve had several litigators take me out to lunch to pitch their expertise and desire to work with my clients) and ask for some professional courtesy advice.

A solo or small firm attorney can refer you to the best fit, no matter who they are, without fear of offending “the attorney down the hall.” And, if you do (and I hope you don’t) find yourself in need of a litigator, a good solo (like a good in-house counsel) can help you manage a competitive bidding process to ensure you get the best fit at the most cost effective price for your needs.

Spring Harvest

I wasn’t particularly scientific or orderly about my spring crops.

It shows:


Those snow peas?


Should have planted more — every two weeks, I harvest fresh peas, peel the strings, chop ’em and put ’em in the fridge in wet paper towels.  They stay fresh and crisp for Thai curry, stir-fry, soup, and whatever else I decide to use them for, for weeks.

Those fava beans?


Who knew?  The plants grew to be taller than me.  I just harvested my first batch of at least 2 pounds tonight and I’ve got a couple more to come.  I planted them because a) they fix ambient nitrogen into the soil and b) while E thinks they are too much work because they have to be peeled twice, I get nostalgic about Italy when confronted with big, full, ripe, Fava Pods.  The actual food that can be used and gratuitous references to The Silence of the Lambs are a bonus.

The leeks, of course, are always worth it.   But the carrots:


I should have planted earlier.  Smarter.  Around where the tomato seedlings would be going, perhaps.   Instead, I had to harvest entirely too many tiny carrots to prepare the beds for amending and the addition of the tomato seedlings.  Too much effort for too little food, but I’m much too proud to admit defeat.  So here we are:


Ahhh… hindsight.  At least the french chefs consider the baby vegetables a delicacy.  It’s so rare that I have the opportunity to cook a delicacy on accident…

For a winter/spring harvest recipe delight making use of the baby carrots: visit Biting Tongue.

Paul Ohm: Anonymization Has Failed

I recently had the privilege of attending a talk where Paul Ohm presented the main ideas behind his latest research paper.

I found his reporting on re-identifying users from supposedly non-personally identifiable information fascinating:

-87.1% of Americans can be uniquely identified by their 5-digit zip code combined with the date, month, and year of their birth.

-80% of anonymized Netflix users could be uniquely identified by 3 movie reviews (movie, date, review value).

His take-home message?

Data can either be useful, or perfectly anonymous, but never both.

The majority of laws and contracts dealing with personal information draw a line between “personally identifiable information” and “non-personally identifiable information” (aka aggregate, anonymous data).

But, if you can use non-personally identifiable information to derive personally identifiable information, then the two categories collapse into one.

It will be interesting to see how advertisers, social networks, governments, and end users respond to reality that the separate categories we’ve built into the laws and contracts may not actually exist.

Flexible Commitment


On Demand.

The Cloud.

In the garden, this philosophy looks like medium sized tomato plants that have not yet been put into the ground despite a date in April in a temperate region of California. Sure, given how close we are to the bay and our average last frost date, we could have planted our tomatoes. We could be fully committed, and done with the major physical labor of amending the beds and putting in the plants.

But, the recent rains and cold weather have made me quite glad that we exercised some caution. We refrained and waited to plant — so we’ve been taking the plants out into the sun when it’s nice and taking them into the garage to protect them when it’s too cold, or too wet (like today).

As a result of waiting until the last possible moment to be irrevocably committed to the ground and exposure to the elements, we will experience less loss and will have the freedom to optimize where appropriate.

Yet another garden analogy that works for startups.