Bottom Line Business Insights : Maryland Business Lawyer & Attorney : Wagonheim & Associates Law Firm : Mergers & Acquisitions & Contractual Negotiation

I’m of the opinion that the best way to finance a new business is via the “3 F’s”: Friends, Family, and, for lack of a better term, Fools. Of course, the risk and headache you undertake when you accept money from relatives and close friends is often more aggravating and gut-wrenching than simply taking money from a faceless third party, like a bank or a venture capital firm. Unfortunately, however, because bank and venture capital financing is usually not viable for startups (and I’ll discuss why next week), new businesses are often left with no other alternative than to hit up the 3 F’s.

So, do you like your friends, family members and relatives? Want to continue to have a warm, fuzzy relationship with them? (I’m perhaps assuming too much here, but stay with me.) If the answer is yes (or even if it’s no), and if they’re considering providing funds for you to get your business off the ground, or to keep it running through a rough patch, then take heed of the advice I’m going to discuss here: come to an agreement with them in writing. BEFORE they give you the money.

Perhaps the best way to explain why you need to arrive at an agreement in writing with your family members or friends before they stroke you a check is by discussing what the agreement should, at minimum, include. Here are just a few of the issues you’ll want to focus on while you’re putting together some sort of document to memorialize the arrangements: 

• Did you discuss whether the money was going to be classified as debt (a loan) or as equity (an investment) in the company?

Debt and equity are treated very differently for tax and legal purposes, and they have very different characteristics with respect to repayment and expected returns. Lenders won’t (or shouldn’t) expect much more than 6% - 12% annual interest, plus return or amortization of principal on some agreed-upon schedule. Equity investors, however, often have visions of buying a Greek island with the triple digit returns they expect to make via an investment in your company. Which would certainly help out the Greek economy, these days.

If the money is a loan, you’ll want to deliver a Note to your lender (yes, even if that lender is a relative or friend) which includes, at minimum, the principal amount, interest rate, maturity date, default provisions, repayment/amortization schedule and terms, possible collateral (in which case you’ll also need a security agreement and a UCC filing or a deed of trust), and dispute resolution terms. If the money is an investment (equity rather than debt), you’ll want to include the family member or relative as a shareholder or member of your corporation or LLC, and the rights and obligations of both the company and the equity investor must be spelled out in detail in the company’s constituent documents.  If you want to avoid problems both legal and personal, that is

• Did you provide anything in writing describing your business and the expected return on an investment in your business (e.g., a business plan or a more sophisticated document, such as a Private Placement Memorandum)?

Bear in mind that even the smallest startup is bound by the antifraud provisions of federal and State securities laws with respect to the raising of equity capital, as opposed to debt financing. There are filings to make (such as a federal Form D and state Blue Sky filings), documents to deliver (such as subscription agreements, accredited investor questionnaires, and shareholder or operating agreements), and regulations to follow. Each investor must receive exactly the same information as each other investor, so if you delivered a business plan or PPM to any investor, you’ll need to deliver the exact same document to ALL potential investors. Running afoul of any of these requirements could result in serious problems for your business if you ever find yourself in the middle of a dispute with your investors.

It would also be very useful to prepare a set of pro forma financial projections demonstrating the expected return on an equity investment. This is not only useful for managing expectations, but it’s also important, from a legal perspective, that you disclose any and all material facts about your company and its prospects to your potential investors.

• If the company goes belly-up (and lots of startups do), what are the rights of your lenders or investors? Remember, we’re talking about your friends and relatives here. Will they expect you to personally make good on their losses? Will they silently seethe and exclude you from all future family functions while badmouthing you within the business community? Are you sure you’ve discussed these issues with them and that your documents accurately reflect both your intentions and your investors’ or lenders’ expectations?
  
• Suppose the company needs additional cash. Do you have a right to subordinate the loans of your family members to subsequent lenders (such as other family members)? Can you subordinate their Notes to a bank? (It would be a very good idea to retain this flexibility in case it’s ever necessary to utilize it.) Or, in the case of equity, do you have the ability to dilute the shares or equity interests you issued to your family members or friends by issuing additional equity to third parties?
  

These are just a few of the many issues you’ll need to consider as you raise money at the startup phase or for ongoing operating expenses. Which is why it bears repeating: if you’re going to be raising money from third parties (even if, or especially if, they’re relatives or friends), be sure you put the terms in writing. A very detailed writing. When all parties understand up front what their rights and obligations are, it’s much less likely that you’ll end up estranged from your family members down the road. Remember that you’re going to be married to your relatives and friends for an extended period of time via your mutual business interests in the company. There are rarely any divorces, and courts are not sympathetic to family issues in corporate disputes.

So, before you take money from the 3 F’s, ask yourself: Are you ready to get married? And is the necessity of financing the business worth the potential family issues that could arise down the road? If the answers are yes and yes, be sure you put the arrangements in writing at the outset, and be sure all parties sign that agreement before any money changes hands.

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Limited Liability Company, “C” Corporation, “S” Corporation, General Partnership, Limited Partnership . . . or something else? When you start a business, your first order of business should be choosing a corporate form.

But what to choose? And where to domicile your company? And what are the potential consequences of your choices? Or rather, what are the potential consequences of bad choices?

Generally speaking, I form more LLC’s for my clients than anything else, and with good reason: for many (but not all) small to medium sized companies, particularly startups, it’s the most flexible corporate form in which to do business.

At the startup phase, you usually don’t know how far your business will go, how much capital it’s going to need to fuel its growth, whether it will need to reorganize to accommodate growth down the road, or how many investors or equity partners you’re going to end up with. LLCs are ideal under these circumstances. They keep your options open while shielding the members’ personal assets from liabilities of the company. Plus, LLCs are relatively easy to operate (more nimble than Corporations and less startup paperwork than Partnerships). They can also end up costing you less in taxes each year than Corporations, and are easier to convert into another corporate form down the road if it becomes advantageous to do so (and I can tell you if and when it would be advantageous to consider a format conversion as your company grows). 

On occasion, though, I’ll recommend that a startup client use an “S” Corporation or a “C” Corporation, particularly if paying salaries to the stockholders is important, or if bank or venture capital financing is essential to capitalizing the business from the getgo, or if offering stock options in order to attract top talent is important. Most banks and venture capital investors will want the permanence and stability of a Corporation before they’ll lend or invest money, and investors particularly like the ease with which a Corporation permits transferability of shares once the business is profitable. However, you’ll pay for these powerhouse advantages: corporate earnings are taxed twice. The Corporation itself is treated as a taxable person, so it will pay taxes on its overall income (the 1^st level of taxation). Then, after the remaining income is distributed to stockholders as dividends, the stockholders will pay income tax on those dividends (the 2^nd level of taxation).   Thus, choosing to operate as a “C” Corporation can be expensive, and a major issue when determining whether to choose this corporate form is whether the company will generate sufficient cash flow to make this double taxation worthwhile.

Whichever corporate form we choose, we also need to decide where to domicile your company (i.e., in which state). Decisions on domicile will depend on the type of business you’re in, the states in which you anticipate providing goods or services, and the complexity of your operations. For most Maryland-based companies, a Maryland domicile is satisfactory. However, your company may present circumstances that would warrant a hard look at another state. Ever wonder why virtually every Fortune 500 corporation and quite a few LLCs are domiciled in Delaware? (Yes, I know this burning question keeps you up at night). Let’s talk about it.

A few weeks ago, I wrote about what sorts of nightmares lawyers have (if you missed it, click here). Here’s the worst nightmare of all: you start a company but don’t use a lawyer and an accountant to help you choose and properly set up a corporate form. You make no filings with the proper governmental agencies (or you make inadequate filings) and you draft no documents evidencing your intended operating format. You adhere to no corporate formalities and keep no records of corporate decisions and actions. Instead, you simply open up your doors for business, sign a lease, enter into contracts with a few vendors and suppliers, put the letters “Inc.” or “LLC” or “Corp.” after your company’s name, and begin servicing customers or clients.

Guess what?   Under these circumstances, the law presumes you’re operating a General Partnership. And I’m here to tell you that you NEVER want to be operating a General Partnership without talking to me first. Why? Because, among other things, General Partnerships do NOT shield their partners from the liabilities of the company. Which means that if anyone sues your company for any reason and wins a judgment against it, your personal assets (your house, your car, your savings, etc.) could be used to satisfy that judgment. Was that something you planned on?

Of course, there’s a lot more to selecting a corporate form than space and time allow me to discuss here. If you’ve got questions about what type of entity your company should be, or if you want to review whether your current corporate form is best for your business going forward, feel free to give me a call. I’d be happy to discuss it with you. [Free of charge, as always.]  

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I have this recurring nightmare. I don’t have it every day, or even every month, and to be truthful it usually doesn’t even happen when I’m sleeping. It’s more of a daytime occurrence, but in substance and fear factor, it’s every bit a nightmare. And I have it often enough that it merits writing about here.

If you read my blog last week, you know that I’ve turned my attention to the legal issues surrounding the startup of a business. My nightmare relates to the scenario that occurs when a new client comes to me for the first time and tells me that he’s been running his business for a few months, things are going well, and he needs some sort of legal help with a new line of credit, or with a contract he’s about to sign with a new vendor or joint venturer, or something similar.

When I ask this hypothetical client what kind of company he’s formed, and whether I can see his formation documents, he gives me a blank stare. That’s when the nightmare begins. Both for me and, often enough, for my client as well.

When you form a new venture, it’s not enough to go to some online company or to OfficeMax, fill out a few forms, and file them with the designated state office. Sure, technically, you can do it that way. But there are too many issues (legal and accounting being only two) that need thoughtful consideration out of the gate, and a do-it-yourself kit isn’t going to adequately prepare you to think through those issues.

Instead, you need legal help.

Here are just a few of the issues that I’d ask a new client to consider and discuss with me before he opens his doors for business:

• What type of business are you going into?

• Did you sign any documents or commence any business operations before coming to me to discuss forming your company?

• Are you raising money from third parties (i.e., investors or lenders), or just from the “three F’s” (i.e., family, friends, and fools)?

• Do you have investors? Are they people or companies? Did they lend you the money, or invest it? Is there anything in writing evidencing their investments or loans to you?

• Are you minority or woman owned? How do you make that determination if you have several owners? Can you take advantage of contracting and funding programs related to your ownership status?

• Did you prepare a business plan? If you raised (or intend to raise) outside money, did you prepare an offering document? Did/does your investment offering comply with Securities and Exchange Commission regulations?

• In what state will you conduct the bulk of your business?

• Did you speak with your accountant about tax issues related to operations and the various corporate forms?

• Have you signed any documents in the name of the company?

• Do you have office space? Did you sign a lease, or do you intend to sign one?

• Did you open a bank account? Who has signatory authority on checks?

• What happens if one of the business partners decides to leave the business, or dies? Or one of your partners just decides to stop working on the business but continues to collect profit distributions? Can he do that?

It only took me about 45 seconds to think of the issues above, and I’m just getting started. My point is that when you start a business, there’s a lot to think about. Startup issues will affect the remainder of your business’s life, and your personal life (and mental health) as well. Your lawyer and your accountant need to be part of the process from the very beginning.

There’s an old saying: “Junk in, junk out” (the saying is actually a bit more, uh, “colorful” than this, but I think we all get the gist of it). In other words, it’s best to put high quality legal and accounting work into the startup phase of your business so as to avoid a lot of “junk” (in the form of liability, headache, tax, and other issues) later on down the road when you’re up and running.

I’m going to explore a number of the bulleted issues above in my next several blogs. In the meantime, feel free to call me if you’ve got any questions about any of these issues, or other legal issues affecting your business.

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One of my favorite lawyer jokes goes like this:

Q:  What’s the definition of a corporate lawyer?

A:  Someone who prevents exciting things from happening.

Unfortunately, and all too often, the joke is true.  Many corporate lawyers fail to see the forest for the trees.  They get so wrapped up in focusing on every possible thing that could go wrong in your business or transaction that they “overdraft” your corporate documents and contracts and scare off the other party to your transaction.  Moreover, they often adopt an adversarial stance vis a vis your business partners, customers, and contracting counterparties, which ends up souring what is supposed to be a positive business experience for the companies involved.  All this extra time and extra analysis ends up costing you time, unnecessary anxiety, and more money in legal fees.

 In short, corporate lawyers too often act like overly wordy litigators.  And that’s not what we’re supposed to be.  We’re supposed to help you build, not to tear down.  We’re supposed to help you perform cost-benefit analyses with respect to your contract language, not throw in everything but the kitchen sink.  And building and benefiting should always be a cooperative and forward-looking endeavor, not an adversarial and retrospective one.  It’s not about your lawyer’s ego.  It’s about your business.

However, there’s at least one time during the life of your company when letting your lawyer get analytical and obsessive is actually more beneficial than detrimental, and when there’s a quantifiable benefit to the money you’re paying him for his services.  And that time is when you decide to start a new business.

You’ve got to get your ducks in a row, make sure the language in your formation documents is tight, and keep your gaze steely.  You don’t want your lawyer to stop this exciting thing from happening, but you DO want him to slow it down enough for you to make some serious decisions that will affect the financial and operational future of your new enterprise.  Decisions such as choice of corporate form, tax considerations, investor rights and obligations, corporate governance, banking relationships, and a host of other issues.  Some can be put off until a few months after you’re up and running.  Most cannot.  This is one time when preventing an exciting thing from happening too quickly is actually desirable.

 Are you going to part with some money in legal fees, as the title of this blog states rather forcefully?  Probably.  You might be able to spend a bit less, but you might end up spending more.  It depends on the type of business you’re starting, your financing, your facilities, your investors, your choice of corporate entity, certain tax considerations, and your appetite for risk, among other things.  It won’t cost you an arm and a leg, but it’s going to cost you something.  And it’s going to be some of the best money your business ever spends. 

 I’m going to explain why over the course of the next several weeks of blogging.  Stay tuned . . . .

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A week or so ago, I came across a story in the legal press that reminded me of something I wish more of my clients would focus on: Non-Compete Agreements. The story was about a lawsuit filed against Chris Botticella, a former Senior VP of the company that owns Thomas’ English Muffins. It seems that Mr. Botticella had accepted a new position as a senior executive at Hostess, one of Thomas’ competitors in the baked goods space. Thomas’ sued to prevent him from taking the job, and won.

Why? Well, it seems that Botticella is one of only 7 people on the planet – yes, the planet – who knows the secret to how Thomas’ English Muffins are made. And Thomas’ certainly didn’t want him taking that knowledge to one of its biggest competitors. As a result of the court’s decision, my guess is that Botticella is going to have a tough time finding work as counter help at the corner bakery, much less as a senior executive at a large, national baked goods company.

How does a lawsuit over English Muffins relate to YOUR business? Simple:  your people are your greatest asset, and, when they leave, potentially your greatest liability. They literally have the power to make or break your business. Every business guru will tell you this, but then you’re left to your own devices to figure out what it all means, and how to protect your business’ reliance on this sometimes unpredictable asset.

Perhaps the most important way you can protect your business’ customer accounts, secrets, processes, plans, and the like from traveling to a competitor after the defection of a key employee is to require key employees to sign a well-crafted Non-Compete or Non-Solicitation Agreement.

A Non-Compete or Non-Solicitation Agreement will prevent your best sales executive (you know, the one whose accounts resulted in 68% of your gross income last year) from leaving your company for a competitor, and taking her business with her to boot. Additionally, if you’ve got any proprietary systems or technologies, it’s imperative that you protect them. Your competitors will likely pay top dollar to lure away your key sales executive, information systems guy, CEO, or key manufacturing process employee. The loss of such an employee (and your competitor’s gain of that employee) will be felt where it hurts the most:  your bottom line.  Equally as important, they are enforceable.  As recently as 5 weeks ago, Judge Richard D. Bennett of the United States District Court for the District of Maryland reaffirmed in TEKSystems, Inc. v. Bolton not only that a Non-Compete is enforceable if reasonable in scope, but also that it will be automatically extended for the period the employee is found to have been in breach. 

Do you have employees whose loss would or could have a devastating effect on your revenues or your business? If you do, or even if you’re not sure, feel free to give me a call or shoot me an email and we’ll discuss it. I’ll be happy to answer your questions and point you in the right direction. Free of charge. And with no obligation.  You can also read more about Non-Competition Agreements in our recently released Business Owner's Pocket Guide. 

In the next entry, I’ll be writing about some of the important provisions a Non-Compete or Non-Solicitation Agreement should contain, and the real effects of these agreements. Stay tuned.

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Recently I was asked some pointed questions about my inspiration and motivation for writing The Business Owner’s Pocket Guide and I thought I’d share those thoughts here:

What was the motivation behind writing The Business Owner’s Pocket Guide?

The purpose of The Business Owner’s Pocket Guide was to help owners of small to medium sized businesses build stronger companies. As a small business owner myself, I know that these companies are the lifeblood of our economy…and I wanted to help make them better. Through The Business Owner’s Pocket Guide, I wanted to provide business owners with answers before it was too late by focusing on areas of critical importance throughout the life of their companies. I wrote the Guide to address bottom line concerns – even legal issues – in an easily relatable way in the hope that it may not only help business owners avoid unnecessary risks, but also travel well down their chosen path.

How was the content selected for The Business Owner’s Pocket Guide and what makes this guide different?

Having counseled businesses of nearly every size and description for over 20 years, I've gained an understanding of what’s important to business owners. Many of the major concerns cut across industry lines:

• What do I need in my contracts to ensure that I’m going to get paid?
• Should I ask my salespeople to sign a non-compete agreement?
• What should I do if I want to bring on a new investor?
• What happens if the owners of the company can’t agree on critical issues, and how can we prevent the problem before it arises?
• How do I position my company for sale when I’m ready to retire?

I drafted the Guide based on the questions and concerns I saw over and over again. Then I sent the rough copy out to a group of business owners to get their feedback. I think that’s what makes it different – it’s not a textbook and it’s not written to sound “like a lawyer.” It addresses real world issues in an easily accessible way…and it’s free!

Who can and will use The Business Owner’s Pocket Guide? 

In the few days since it has been out, it’s been downloaded by business owners in industries ranging from landscaping to catering, professional service firms, and even some folks in local government. Basically, I see the Guide as a valuable tool for business owners and managers, regardless of industry, and whether the business has 5 people or 500. 

I wrote it to address issues across the board…and it seems from the enthusiastic early reception as though it is doing just that.

Visit www.wagonheim.com to download The Business Owner’s Pocket Guide and come back here to leave your thoughts and comments.

The Business Owner’s Pocket Guide is the third in a series including The Contractor’s Pocket Guide and The Banker’s Pocket Guide, which were released over the past several years by Wagonheim & Associates.

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In Have a Little Faith, Mitch Albom quotes a sermon so important to business owners that I have reprinted the entire excerpt below:

A man seeks employment on a farm.  He hands his letter of recommendation to his new employer.  It reads simply, 'He sleeps in a storm.'

Several weeks pass and suddenly, in the middle of the night, a powerful storm rips through the valley. 

Awakened by the swirlining rain and howling wind, the owner leaps out of bed.  He calls for his new hired hand, but the man is sleeping soundly. 

So he dashes off to the barn.  He sees, to his amazement, that the animals are secure with plenty of feed.

He runs out to the field.  He sees the bales of wheat have been bound and are wrapped in tarpaulins.

He races to the silo.  The doors are latched, and the grain is dry. 

And then he understands.  'He sleeps in a storm.'

Running your own business is an exercise in piloting to safe harbors through strong and unexpected storms.  And as business owners, the storms rage all around us. The bankruptcy of a major customer is a storm.  So too, the loss of a major salesperson, along with the customers who elected to follow her.  A job gone south, the loss of key support personnel, and one's own unexpected absence from work -- all are gales of sudden and untold destructive force. 

To many, the state of our economy this past 18 months has been a storm of epic proportions. 

The question then becomes:  "Can you sleep in a storm?"

Have you:

• Secured lines of credit with terms and limit appropriate to your business?
• Protected your streams of revenue by locking down key salespeople with restrictive covenants? 
• Limited your risk by negotiating manageable damages and indemnification provisions -- particularly in those contracts governing your largest projects?
• Trained your replacement?
• Documented key procedures so that a new person could step into a job knowing key passwords, resources, and procedures?

Too often, these types of preparations are like flowers at a funeral -- they arrive all at once, and too late.  Prudent business owners prepare.  They schedule regular meetings with their management team and key advisors, whether quarterly, every 6 months, or even annually, to consider and prepare for what storms may come. 

And when those storms arrive, as they most certainly will, the prudent business owner sleeps soundly.

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It’s not hard to find a relative or friend willing to offer a personal opinion on a professional problem. There is really no cheaper advice than that coming from your neighbor. But with the discounted price, one risks listening to uninformed advice from a possibly sophomoric source.

Every month, I consult with business owners who have received wrong, incomplete and sometimes catastrophic advice from friends or relatives who happen to be professionals, albeit with the wrong kind of experience. Often, such advice is simply unfit for the specific business or situation at hand. Advice that is irrelevant to you and your business, although well intended, is more harmful to you than harmless. 

For example, let’s say that you had a good fiscal year and need some additional accounting assistance. Your Uncle Joe has volunteered his services since he used to own his own small business and had to file tax forms for years. What your retired Uncle doesn’t know is that tax laws have changed drastically since he was last in business 20 years ago and filing these principle forms wrongly would result in damaging consequences. 

One of the great truths I have learned in my 20 years of experience counseling businesses is that paying for quality advice is never a mistake. Professional consultants are experts in their fields and have built their businesses and reputations on giving solid, experienced guidance in their areas of expertise. The time and expense it can potentially cost to correct any problems caused by misguided advice is an unnecessary one. Consulting with the right person from the beginning will save you time and money.

When you are sick, don’t you go to a doctor? When you have a toothache, don’t you go to a dentist? Reputable specialists are so for a reason. If you have a legal matter, consult a respectable attorney as you would consult a brain surgeon, if needed be. Your business is important and the counsel you seek to nurture it should reflect that worth. Consult with the right people: professionals with experience directly relating to your business.

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I may be a bit younger in years, but I can still recall when a “handshake and a promise” deal actually meant something. Perhaps some of my confidence in another’s word stems from my small-town Mississippi roots. Nonetheless, in today’s economy, your business will need a lot more than a handshake if you want to get paid. Luckily, only a few hours spent with a reputable attorney can present you with a sound contract based on solid terms and conditions, which will save you time, stress and money, should a client try and stiff you on down the line.

Without a mutually agreed upon legal contract in place, any terms agreed upon with a handshake are moot. Entering into a handshake agreement could put a business at risk for losing money not only in the original agreement but also in court fees for legal action against a deceitful client (unjust enrichment, quantum meruit, and the like).

Since we’re not in 1950’s southern Mississippi, and few millennials even know the meaning of such hospitality in business transactions, a good rule of thumb for any business is to ditch the handshake and ask for a signature acknowledging an ironclad contract, complete with terms and conditions. Those terms and conditions should include the most basic items such as:

• Compensation and payment terms
• Changes/ additional services
• Emergency services
• Reimbursable expenses
• Provisions of default
• Dispute resolution
• Governing law

Legal considerations, as stated above, are extremely important to help ensure appropriate compensation for hard work. Some businesses believe that something in writing, though not in legal contract form, is just as dependable. The reality of the situation is a lack of clearly stated legal terms and conditions could leave a business with a higher level of risk for a transaction.

While developing long-standing relationships with clients is important, don’t forget to protect yourself and your business in the process. Shake your client’s hand and exchange the promise to fulfill the contract, but also take a couple of hours with your attorney to put a “gentleman’s agreement” into writing. For the most part, your company’s terms and conditions can and should be standard with every contract, so this will not be an ongoing legal expense. Rather, it will ensure you peace of mind in knowing that should an agreement not go as planned, you have a contract to protect your business. 

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We all know the resolution drill. The new year marks the welcome of new beginnings and a commitment to resolutions focused toward adopting healthier lifestyles. Come the new year, gyms and fitness clubs across the country will be filled with people sweating off the holiday pounds.  Yet, by spring many of those same people are on the way to the office without a workout in sight. With one bite of a calorie-filled blueberry muffin, the resolution once made with dedication is no longer a priority.

Marketing your business can easily be compared to this all-too-common scenario. As soon as a new product is rolled out or new service offered, a business quickly plans a strategy to get the word out to consumers to increase sales and visibility to target audiences. Spending merely a few weeks working to get your business or product noticed, building your brand, and expanding your network will most likely not offer you the same results as making a constant, consistent effort.  

Think about the results you get from exercising. A few weeks of dedication at the gym may result in a pair of pants one size smaller, but months later they aren’t going to fit if you haven’t maintained a consistent workout regimen.   The same can be said for your business. You may feel good when business is busy and profits are up, but you must put yourself and your business at the forefront and keep marketing to consumers to stay visible.  It takes commitment.  It takes a plan.
 

An easy way to commit to marketing your business year-round is by creating a marketing plan. If this is your businesses’ first attempt, consider consulting a professional or start small by creating a short-term marketing plan with smaller, attainable goals that can be reached in shorter time.  Near the end of the short-term marketing plan, evaluate your goals and consider expanding to a long-term marketing plan with annual goals.
 

As daunting and time-consuming as a marketing plan may seem, the following are a few simple activities that can be done every week to help increase your brand awareness in the community: 

• Attend industry networking events
• Volunteer to lecture or speak at appropriate professional associations or community organization meetings
• Write editorial pieces based on recent news affecting your industry for your local newspaper
• Sponsor local events or charities

While a plethora of practices can be considered for use, the invariable ingredient to a successful marketing formula is consistency and rhythm.  Allotting the time for habitual marketing will help to steadily build a company’s brand visibility. Additionally, the regularity in practices will help to avoid making resolutions to get a business back in shape. Let’s face it…resolutions are tricky to keep, especially if they involve going to a gym, but if it’s better marketing you want, take the time and make the commitment to a solid marketing plan and adopt a proactive mentality. It could be as simple as turning on your computer once a week and researching opportunities online, blueberry muffin in hand.

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Last week, I found myself reading up on Chanukah -- the Jewish Festival of Lights -- as my family and I prepared for the holiday.  As I looked for a new way to talk about the meaning of the holiday with my children, I began to realize the business lessons to be drawn from the symbolism used in the celebration.

Each night, a new candle is lit on the menorah.  On the first night, only the shamas (literally "servant") or highest candle is lit, along with one other, symbolizing the first night.  On the second night, the shamas is used to light two candles, and so on.  

It is written that the celebration is really about overcoming darkness, whether it be physical or spiritual.  A parallel can be drawn to business condition.  Particularly in these economic times, every business -- successful or not -- must fight to overcome inertia, old/bad practices, routine, or complacency.  Every business leader has to work each day to embrace and master new challenges, sometimes radically altering the way his or her company had done business for years before.

Overcoming the weight...and yes darkness...that constitutes resistance to change is a very real and daunting challenge.   The first light on the menorah, therefore, symbolizes how one candle, representing even the smallest positive change, is enough to overcome a world of night and darkness.

The lighting of the second candle shows how the light represented by that one small prior act now spreads.  This is a reminder that a single act -- a single positive change -- while not sufficient to accomplish a significant goal, can lay the foundation for more change.  The second light shows that we must redouble our efforts, even after the success of the last initiative.  

The lesson of the third light is consistency.  As the saying goes: "We did it once because we were inspired and a second time because we were encouraged by the first. This third time, we push back at the darkness because we are committed."  It is this third effort that expresses persistence and commitment to dispel darkness with light.

Upon reaching the fourth light on the menorah, we would find that we are halfway to fulfillment of our purpose.  This is point at which many worthwhile efforts find themselves sidetracked by distractions.  It is here that a leader must help the organization maintain focus by constantly asking the question:  "Does this help me achieve my goal?"

On the fifth night, we have achieved a majority.  The balance has been shifted from the old (darkness) to the new (light).  This is the most dangerous point in any process -- when the goal is in sight and people can become complascent, knowing that the path is now downhill.  Should the team spend too much time reveling in its accomplishments, it will ultimately fall short of its goal.  So it is here that the leader must demonstrate the importance of bringing light (change) to even the most remote corners of the company.  It is not enough to achieve a majority -- the goal must be completely fulfilled.

It is the sixth and seventh nights that are the richest in symbolism.  The Judeo-Christian heritage teaches that the world was created in six days.  By reaching the symbolic sixth night of any initiative, the leader has maintained a path long enough to bring about monumental change.  This is the time to check benchmarks.

Traditionally, the seventh day is a time of reflection.  Consequently, even though we may be in view of the goal, we have not quite reached it.  Near (but not at) the endpoint is a time to take stock.   Enough has been accomplished for us to review progress and make course adjustments to continue on. 

Finally, we reach the eighth night -- the time at which we have accomplished our goal of bringing about significant change.  Over the years, I have learned that nearly every culture has a holiday or festival that revolves around lights, whether electric (Christmas), candles (Chanukah, Kwanzaa and the season of Advent) or even lanterns in certain Asian traditions.  These festivals almost always seem to take place at the darkest time of year and serve to remind us of hope and of our own ability to spread light where there is none.

In the tradition of Chanukah, the use of the menorah through the eight nights of the festival, the teaching is that miracles can happen even though the road is long and arduous. 

In the management of any business, it strikes me that the teaching is the same. 

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Not long ago, Duke University Men's Basketball Head Coach Mike Krzyzewski and the Duke athletic department developed a list of nine principles that defined Duke athletics.  Coach K described these principles as "the things that are essential to who we are." 

The nine principles were revealed to a gathered crowd of 850 student-atheletes, coaches and administrators in Cameron Indoor Stadium by former Duke student-athletes who represent great success stories in their respective fields.  The words selected by Duke to define Duke were: (1) education; (2) respect; (3) integrity; (4) diversity; (5) sportsmanship; (6) commitment; (7) loyalty; (8) accountability; and (9) excellence.

As I read Coach K's description of Duke's guiding principles, I could not help but focus upon the applicability of the same methodology and mindset to my own small business and those I am fortunate enough to counsel.  I wondered whether one could gather a roomful of often cynical employees around a conference table, discuss values, and have it actually mean something tangible. 

In other words, I wondered "what were the keys to a successful company vision?"

Tony Gattari, an Australian corporate consultant wrote in Good Ezines that successful corporate visions share three attributes:

1. It's infectious.  Just like a disease, a vision is at its most contagious when it is alive and active in the host.
    
2. It  comes from within.  Rather than having management swoop in and tack a poster in the lunchroom or spend $1,000 at Successories, the vision is tied to the employees and created from the real passions and desires of the company's leadership.
    
3. It goes beyond the company's 4 walls.  A company with a successful corporate vision extends that vision to vendors, colleagues, customers, and the business community at large -- not in an evangelical way, but rather simply by the way the company interacts with the outside world. 

In the privacy of their own homes and hearts, people often find themselves doing some soul-searching in December in contemplation of resolutions for the coming year.  Perhaps, and maybe even especially, in these economic times, December may be a good time for some corporate soul searching as well. 

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Yesterday, we received the catalog from Despair.com. One of their demotivators featured the legend: “Hard work often pays off after time, but laziness always pays off now.” I thought about this as I was working with a client on revamping her company’s employee handbook. We discussed everything from dress code to paid-time-off, to the point where she was so tired that she asked, “Do you think that all of these details really matter? Can’t we be a little more vague and worry about addressing some of these issues when they come up?” 

But the point is, you can't -- not if you want to avoid unwanted results from your employees or claims from DLLR.  As time-consuming as the redrafting effort was, we needed to get it right.  The devil is in the details.

It’s easy for this idea of the devil being in the details to be lost on some. In this economy, we are tempted to rush, rush, rush to get the end product completed. We’re stretched thin, and our only goal tends to be the almighty dollar. However, we have got to stop and be reminded that, in any endeavor, the devil – the difficult part – is getting those small details just right, so that the end result is excellence. 

When we neglect the details, people notice. For instance, in that employee handbook, if we failed to note that jeans were impermissible for office staff, you can bet that employees would notice and would expect that jeans were acceptable attire. What’s worse, the client who walks through the door to your business and sees the office staff wearing the jeans may be turned off by the lack of professionalism. And if you later tried to enforce a “no jeans” policy, or ultimately let an employee go as a result of the lack of professionalism, not having this detail documented in the handbook may allow that employee a legitimate claim for wrongful discharge and/or continued benefits.

Of course, the flip side is also true. Sometimes the more details you tend to, the less that people really notice. But this is a good thing. Allow me to explain:

You come home from work today, check your mail, and find an invitation to a party in a few weeks. The date comes along, and you go to said party, where you eat, drink, mix and mingle for a few hours, and then head home. Do you really think about all of the details that went into the party?

If I were your hostess, here’s what would have gone into that party (at a bare minimum!): 

• 2 hour to select the perfect theme (season, occasion, etc.), date (no Ravens home game, or other obvious conflict), time and location (backyard, fancy restaurant, art gallery, you name it!)
• 30 minutes forming a guest list (taking care to stay within proper friend and family circles and to be as inclusive as possible),
• 2-3 hours to select the perfect invitation (considering everything from the theme to the font, because the invitation sets the tone of the event),
• 30 minutes choosing stamps and timely mailing the invitations (there is such a great selection of stamps out there, you may as well find one that works well with your event!),
• 2 hours selecting decorations (even more if some decorations are homemade or require any kind of legwork)
• 3 hours selecting a menu
• 2 hours shopping for decorations and food (if you aren’t using a caterer)
• 4 hours preparing food (again, if you aren’t using a caterer)
• 5 hours cleaning and/or setting up the space (placecards or nametags… labels to identify food selections… fresh flowers on tables and in the powder room…)
• 2 hours assembling my own wardrobe for the event

And then, the guests arrive.

Paying attention to all of these details is exactly why the party will go off flawlessly. And exactly why not one guest will think twice about everything that went into making the party fabulous. But guess what? It’s exactly why every guest will remember the evening.

Both personally and professionally – whatever your business, give great care to those details! 

• Tuck in your shirt. Look the part.   
• Proofread. Yes, even emails.
• Avoid saying “um.”
• Remember people’s names.
• Make eye contact. Smile!
• Create an outline before your next presentation. Practice.
• Ditch the AOL, Yahoo, or Gmail account and get your business its own domain name! For $75, two guys in a pickup are transformed into a solid company you can trust.

If you take the time to battle those devilish details, they are sure to produce returns tenfold.

I wore maroon, patent leather, pointed-toe, crocodile-printed pumps to work today. They pick up the hint of burgundy in my brown checked suit and truly complete the outfit. They even make me feel more confident as I attend my morning, lunch, and dinner meetings today. 

As I said…the devil is in the details.

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Yesterday, I found myself at a traffic light behind a company truck.  The truck belonged to and advertised a dog waste removal company.  I pondered this.  For a while, I wondered what the job interview was like.  But as the light turned green and traffic started to move, I noticed something else.  The truck was sporting a bumper sticker that read:

Your Life is not My  Problem.

I turned my pondering up a notch.  "How is it," I wondered "that in this one moment, frozen in time, the dog poop guy seems to be looking down on my life?"  Now, don't get me wrong.  This guy, perhaps even the owner, had a company, did honest work, and maybe even made a killing performing a service hordes of people would pay to avoid having to do.  But why was his employee insulting me.  And did the company's owner know it?

And this led me to my question:

How many owners realize the hidden (and not-so-hidden) messages their employees are sending?

Several years ago, Walgreens faced a lawsuit over just this issue -- only in more extreme form.  It seems that Walgreens pharmacy employees entered their thoughts on various customers in the comments field of the company's perscription software.  There, stapled right to a perscription for a customer's anti-anxiety medication, was a print out featuring some anonymous employee's assessment "She's CRAZY." 

Now maybe she is, and maybe she isn't.  But one thing we know for sure.  Walgreens has spent millions of dollars on a campaign to convince the public that it is a friendly neighborhood pharmacy.  How much money, then, did this one errant employee flush down the drain with one careless, or in this case, incredibly stupid example of personal expression?

Appearances matter.  If your employees have customer contact, check every aspect of the interaction.

• What do the outgoing voice mail messages say?
• Look for bumper stickers on vehicles used for delivery -- political, religious, or even humorous.  What's funny to one is insulting to another.
• Listen to how your employees express themselves.  Do they have a penchant for telling ethnic jokes or making sexist comments in an attempt to be funny?  Some people do  these things so often they don't even notice them anymore.

Can you see your company through your prospective customer's eyes?  If the dog waste company could, they might have taken the time to ponder that bumper sticker.

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It is a simple lesson learned by those good at what they do.  The world's best software designers use it as their primary focus, as do diplomats, the nation's top deal-makers, and (believe it or not) legislators evaluating U.S. tax policy.  Whatever the path, there are many roads to a successful outcome, but they all start with Rule #1:  Make it easy for people to do what you want them to do. 

Allow me to illustrate.

Two weeks ago, my 10 year old came down with strep throat.  Once he spiked a fever, my wife took him to our neighborhood urgent care center.   To date, I've received three statements from my insurance carrier.  Three separate envelopes.  Three detailed statements.  I still don't know what I owe.  I presume these people want me to pay them.  (Why else would they send me the statements?)  I want to pay them.  But they're not making it easy.  Instead, they are making it almost inevitable that I will do one of three things:

1. Delay paying them until I can sort out their bill
2. Call  their customer service number and tie up a representative for a while, thereby raising their employment costs by making such people necessary in the first place
3. Pay the wrong amount, forcing their accounting people to deal with the discrepancy

Not one of these things is what the insurance company wants. They want their payment promptly; and they're not going to get it.  This company has failed to follow Rule #1. 

Every facet of your business, from employee policies to marketing and customer service, should be created from the ground up in service to Rule #1.  In other words, for each part of your business, figure out what you want and then develop policies which make it easy for people to give it to you. 

• If you want people to pay you timely, make your bills easy to understand, stick religiously to a schedule when sending them out, make sure they do not contain unpleasant surprises,  give people a variety of ways to pay, and submit your invoices or requests for payment in a form readily acceptable by your customers.
   
• If you want your customers to use you as a resource, make it easy for them to find and contact you on at their convenience.   (If your business serves construction contractors, for example, you better be reachable at 7:00 a.m. because that's when they're on the job site.)
   
• If you want to know what your employees are thinking, create policies which incent them to provide their input and make it easy for them to do so. 
   
• If you want someone to keep sending work your way, figure out how you could make sending you work a no-brainer for them.   For example, see if you can send referral sources a quick reference which would serve the dual purpose of making their job easier while keeping your company's contact information front and center.  Another example would be to offer free services such as assessment or contract review to enable your referral sources to get the ball rolling on a project without cost.  After all, once you're in; you're in. 

Rule #1 applies equally to customers, employees, partners, and investors. Too many company policies exist simply because they always have.  As noted by despair.com

"just because you've always done it that way doesn't mean it's not incredibly stupid." 

If that's where you are, change. The tough part, of course, is actually examining each facet of your business -- from HR policies to website design -- to figure out what response you want, and what kind of responses are counterproductive.  Once you have that figured out, discard the policies that do not serve Rule #1 and build on those that do.

Good luck.

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Two months ago, our copier vendor called to tell us that our lease was almost up.  The purpose of the call was obvious -- they wanted to sell us a new copier.  The result of the call was a business lesson that we will use to guide us over the life of our firm. 

The end of our copier lease left us with three options:

1. Pay off the lease
2. Upgrade to a new copier
3. Explore our options. 

Paying off the lease would require one final payment equivalent to about 8 of our normal, monthly payments.  By month nine, absent an unexpected mechanical meltdown, we would be home free.

Our vendor (we'll call them Oldco) clearly wanted us to choose the second option.  They were offering a lease on a newer, faster copier for a slightly lower monthly cost.  The problem was, we had no problem with the old copier.  It was fast enough, scanned well, and a slight upgrade in speed, with perhaps a better stapler, did nothing for my bottom line. 

Our choice came down to either keeping the current copier or exploring our options.  Upgrading machines with no discernable benefit made no sense. 

Our search for other options took us to Advance Business Systems.  We invited both Advance and Oldco to make a presentation.  (Not that we're offering a million dollar copier contract, but whatever the money is, it's important to us.)  Our Oldco salesman walked into the presentation with the company's president and showed us some very nice brochures on the copier upgrade.  We could slightly reduce our monthly payments while increasing the speed of our copying and scanning.  (And maybe add a hole punch...I mean who's to say?)

Advance, on the other hand, scheduled a meeting at their showroom after asking us detailed questions about how we run our practice.  At their office, we were ushered into a conference room where we were given a demonstration of how their copier could integrate with our practice management software while helping us achieve the kind of document control system we had envisioned. 

The companies provided a stark contrast.  Oldco sold copiers.  Advance sold a document management solution that happened to work through copiers.  What became apparent was that somewhere in its development, Advance had decided that anyone could sell copiers and that anyone can claim to have reliable service.  To avoid becoming a commodity, Advance had to identify how it fit into its customers' development.   It had to figure out how it was more important than the other guy and then make that distinction apparent to its customers.  

Therein lies the lesson. 

When I now look at companies, I find myself asking:  "Are they Oldco or are they Advance?"  I've asked that of my own.  In so asking, I think I've found my answer and charted the road we, as a law firm, have to travel to ensure that we never become a commodity.  

My law firm's answer to that challenge as well as my request for feedback concerning other companies and the roads they've chosen, form the basis for future posts.

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I hate meetings.  To me, they usually seem like 5 minutes of substance packed into 2 hours.  In fact, the best part of any given meeting is time just before everyone gets there -- when you get a chance to chat with those who arrived early.  But then the "Agenda" starts, and anything resembling a productive use of time comes to a screeching halt.

And yet...some companies thrive on them -- in fact, thrive because of them.  The theory being that, done right, meetings can become short bursts of adrenaline, becoming a company's rhythm and tone. 

Verne Harnish, author of Mastering the Rockefeller Habits, writes:

One of the most successful practices any would-be gazelle  [Harnish's term for a nimble, fast-growing company] can implement is that of a daily huddle -- nor more than 15  minutes per group, in a room or on a daily conference  call, just to celebrate progress toward goals or identify barriers blocking that progress.

What too often goes without saying, is that it takes months of soul searching and sometimes years of experiments and failures for a company to discover its goals, barriers, and measurable "metrics" upon which to base its 15 minute boost.   

The latest statistics out of the Small Business Administration bear out that the vast majority of businesses fail within the first 7 years.  To excel, however, a business must focus beyond a question of mere survival. 

So if we accept, for the sake of discussion, that a daily 15 minute huddle, done right, would keep your company moving forward, the question then becomes: "what should be distilled into that 15 minutes?"  What is so important to your business that it should take up the only 15 available all-company minutes per day?  

My hunch is that if you find that, you would find the kind of adreneline boost that would turn your business into one of Verne Harnish's gazelles.

Question:  What is the central idea or them around which you would plan your 15 minute daily huddle for your company?

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