Making Expert Assistance Affordable

I keep trying to think of ways to enable people with perhaps limited resources to have access to a conflict consultancy with me when they are in difficulty. I would like to think of it more as my crisis management consulting practice than just being limited to franchising.

This week I came up with a new idea, and the purpose of this post is to see whether there is any interest in it. It will work like this.

I don’t know what to call it yet, so I’ll just for now call it a day with Richard Solomon. The way it will work will be that you and your lawyer(s) come and spend a day with me here in Houston. It is also available to attorneys, with or without the presence and participation of their clients. You get your questions and issues organized in advance, and you can send me an outline if you wish.

We meet very intensely all day long, starting early and running late, say 6 a m to 7 p m. You show/tell me what you want to accomplish and how you think you might like to try to get there. Your case may or may not already have been instituted.

We talk about the nature and specifics of different kinds of claims and defenses; potential affirmative defenses and counterclaims that your adversary could be expected to assert; the facts you believe are true and how to prove them, as well as how to obtain possession of admissible evidence not yet in your possession. We talk about outlining the discovery you will need, and how that will change as the case goes on, including what claims and defenses to change or abandon when you find out that the evidence isn’t there or that it will cost too much to prove and just isn’t worth the effort. We identify where experts will be needed; when they will be needed; what their assignments should probably be; and where that goes in the case management budget. We talk about settlement strategies and the timing of their implementation. We also talk about the various ways to prove damages or to attack damages claims if you are a defendant.

We talk about what, if any limitations may need to be considered according to the terms of representation between you and your attorney(s). Appreciating what they are to provide and what will require financial input from you allows you to plan realistically in advance of drop dead dates.

Obviously, the earlier on in your situation you get this consult accomplished, the better it will be for your case management agendas. In your most advantageous circumstances, we will do this before you file anything and take positions that may not serve your purposes in the long run. Think of it as due diligence on your decision to fight or not to fight – what your options really are and how they really stack up against a decision to go to war. You know, even in a situation where you have been threatened with termination, if you don’t have a reasonable case other than an appeal to pity, waging a losing battle may do more harm to your future prospects than anything else you might decide to do. Sorting it all out beforehand is priceless.

If you have not actually begun an action yet, the consult can deal with what claims to assert; what quality of evidence you already have in hand and what you don’t have and still have to get; where you have to get it from. Evidence from third parties who don’t have a dog in your fight is a different issue than evidence from friendly third parties. Sometimes even friendly third parties have reasons for not wanting to get involved, and these need to be discussed to the extent they can be identified. Some third parties don’t want to alienate your adversary for various reasons, and some fear that their involvement may embroil them in some difficulty or other. We should also discuss the pros and cons of involving others on your side of the coming fight. There are many, many issues associated with trying to do that, including, among many others, loss of confidentiality of your plans and intentions; issues that are different for them than they are for you – the similarity or lack thereof of your situations; the ability of your adversary to respond to multiple claims. The notion that the more on your side the better is sometimes wrong and against your interests. Finally, if you are going to go in group format, what should be the terms of the group retention?

There will be other subjects that come up while we are in session, and we can deal with them then and there in most instances. Among these may be whether to seek intervention by an appropriate government enforcement agency, usually not in your best interests except possibly in the most outrageous circumstances.

This service is also of value to franchisee associations and to those wanting to form (or try to form) an independent franchisee association. Reality based position evaluations will go a long way to prevent agenda failure. What may be a great agenda can be thwarted by many things that have nothing to do with the merits of the agenda itself. A day spent on that subject can mean the difference between success or failure and the difference between becoming leaders of your franchisee community and your becoming defendants in conflicts that may lead to termination of your franchise rights. Knowing what to say to the franchisee population and when to say it is often the difference between getting an association formed and just making targets of yourselves. The price of this consult divided amongst the leadership is extremely kind.

You are under no obligation to retain me for any purpose, and I will not be obliged to agree to represent you in any matter, unless and until we may both believe that is in your best interest. There could be further availability on a consulting basis for me to assist your lawyers if that is something you want then or down the road, but no obligation in any event.

There would be a written agreement to the effect of what you see here. It would also provide that I do not acquire a conflict of interest if I choose to accept retention in any matter against you other than the matter you came to see me about. What you and I say will be protected by the attorney client privilege unless you divulge it in a manner that destroys that privilege.

The cost of that day would be $ 4,500, payable in advance, for the most exhausting day you will ever spend. It must occur here in Houston, and your expenses of attendance and for your other attorney is for your own account. It can occur at “your place” but the price will be different. You will stay where you have a part of your hotel accommodations that we can use as our meeting room. I will turn off my cell phone so there are only dire emergency interruption possibilities. The day belongs to you alone. You will take notes and bring along your laptops and your files. There will be no recording permitted. Obviously you will bring along any documents that will be discussed. If we’re talking about damages, those will include tax returns and financial statements. If the issue is fraudulent inducement to become a franchisee, you will bring everything that contains any information you were given, no matter in what form or format, written or oral, as well as everything you told the opposite side (like an application or personal history and any financial information you may have given them).

I have never done a consultancy for this small a fee in my life. If it proves to be of value, I will consider doing it into the future to see where it may lead. Pass the word around and thanks for listening.

Profile picture for user Richard Solomon


Hit and miss

Richard you have outlined much of what isn’t considered by franchisees and their lawyers and typically, usually, neither have the ability to understand the implications and produce a workable strategy.  “Hit and miss” legal representation by the under-qualified is dangerous – but only for the franchisee.

I would suggest that any franchisee contemplating anything that could lead to litigation should undertake this before they even let the franchisor know they might get serious. 

Franchisees generally don’t like to put their hand in their pocket to undertake effective due diligence but they need to understand the propensity of franchisors to fight rather than reconcile “because they can” afford to much more than a franchisee. 

We might expect that at least some franchisees considering war might at least do enough homework to understand that positive outcomes are rare and they need a bloody strong case and money against a lot of bloody money.  To participate in such consultancy very early would often save a hell of a lot of angst and potential bankruptcy.

I have never done a consultancy for this small a fee in my life.

At $4,500 a pop I am sure every franchisee who might like to go and see you wishes he could say the same thing.

I do not say it isn't worth it (or that it is), merely that it demonstrates very clearly the nature of the problem.

If I knew then

what I know now - this is ridiculously inexpensive.

To expand on Cee B; "franchisees considering war" usually don't know how costly this BS will be. Richard's offer in a smart world would see him inundated. But franchising isn't full of smart people so he MAY be safe.

Franchising is a learning curve - the more you learn the broker (such a word?) you get.

Heads Up for F'ees going to arbitration

There are franchisees who are going to arbitration and who are also going into bankruptcy.

Tell your lawyers to check the law of the federal circuit in which you are located on the question of your ability to avoid the arbitration clause in bankruptcy and sue the franchisor in bankruptcy court.--

It is my understanding that in some circuits the law permits that and in others not. If you can avoid arbitration in bankruptcy and sue the bastards, you may have a decided advantage.

Richard Solomon,,  has over 45 years experience with franchise litigation and crisis management. He is a graduate of The Citadel and The University of Michigan Law School