Business Law

Attorney Sweeney offers Business Law expertise for large and small businesses alike for Contract Drafting and Revision, Business Litigation, and Business Formation services in Milwaukee and Waukesha Counties. Often the price of representation can seem prohibitive, but compared to cost of litigation it is money well spent.

Through my training at Marquette Law School, the lessons I learned earning my MBA at Marquette, and my experience as an Attorney, I have realized that the old adage “An ounce of prevention is worth a pound of cure” holds especially true when it comes to business law.

Contact Attorney Sean M. Sweeney at Halling & Cayo today to see how we can help you protect your business. (Click here to see all posts relating to Business Law)

Contract Drafting and Revision

People think they only need an attorney when there is a problem. However, preventative counsel is the most cost effective way to ensure you never need to spend the sometimes exorbitant costs of hiring an attorney to litigate a contract gone south. By utilizing preventative council, and having a qualified attorney draft and review your contracts, you can save your company large sums of money. A good contracts attorney provides preventative counsel, precise language, and is a deal maker not a deal breaker. Attorney Sean Sweeney promotes all three of these principals and can help your business be successful. Read more below about Contract Drafting and Revision services.

Preventative Counsel

When a contract is first entered into, both sides are just happy to get the deal done and often things are overlooked. It is not until later that these problems arise and one party, or both, wishes they had had an attorney look over the document prior to signing it. By utilizing Attorney Sweeney to draft and review your contracts, you will be avoiding extra unforeseen costs that can arise when a deal goes bad. Being precise in the language in a contract can go a long way towards preventing future grievances.

Precision

One of my father’s favorite sayings was “Say what you mean and mean what you say.” This proves doubly true in contract drafting. If I could sum up in one word my theory for drafting contracts, it would be “precision.” If a contract is not precise, it is being left for a judge or arbitrator to interpret what the parties intended after the fact. Instead, wouldn’t it be far better to simply be precisely clear as to what each party intends at the time the contract was drafted? Often times, when precise language is used, it can reveal where parties had different understandings of certain provisions and allow them to negotiate an understanding before the deal is entered into and one party or the other is accused of breaching the agreement. Attorney Sweeney’s whole focus is to ensure that exactly what the parties contracted for is represented in the contract.

Deal Maker
Amongst all of the preventative measures and precise language, the most important thing is to get the deal done. Many attorneys lose sight of the ultimate goal of a contract, to make a deal, and get caught up in the legalese of the contract. My education through the Marquette MBA program has allowed me to fully understand the need to get the deal done and not get entrenched in legal maneuvering. Attorney Sweeney is able to offer a unique blend of business knowledge with the legal know how to ensure that precise contracts are being drafted and are leading to successful deals, not preventing the parties from reaching an agreement.

Negotiator
Often times it can be beneficial to have your lawyer present during the negotiation process. This helps ensure that the intention of the parties is understood by everyone, and may help prevent having to go back to the negotiating table over legal issues that were overlooked. Attorney Sweeney can help with the negotiating process and help ensure that all of the topics that need to be covered are taken care of the first time around.

Business Litigation

It seems it is almost a right of passage for every business to at some point to become involved in a Civil Litigation case. Often these involve Contract Disputes where there was no written contract. If things were not well laid out in a Contract or Agreement before hand, it can lead to very contentions proceedings. Allow Attorney Sweeney to speak with you about your case and decide which course of action is best for you.

Attorney Sweeney can help you

* Determine the appropriate Claims or Counter claims.
* Ensure that all procedures are properly followed in the filing of the suit.
* Negotiate a Settlement if appropriate.
* Minimize your exposure and ensure that all angles of you case are examined.
* Represent you during mediation or arbitration.
* Represent you at trial and zealously defend your position in court.
* Ensure that you side is accurately and fairly represented.

To get a better idea of what is involved in a Civil Lawsuit; follow this link to see an outline of the Civil Law suit process.

Defendants

What to do if you are being sued:
1. Contact an attorney right away.
When you are served with a summons and complaint, you generally only have twenty days to file an answer. You need to get representation immediately to give your Attorney an opportunity to effectively evaluate the options.
2. Determine the cost of defense:
Many things will factor in to this equation, and often times it is very difficult to predict. However, when you bring your case in, Attorney Sweeney will do what he can to help you understand what it will cost to defend the action.
3. Decide whether to settle and for how much:
Once you have figured out number 2, or at least have an educated guess, then you need to make the determination of whether or not you are going to make a settlement offer and for how much.
4. Proceed with Trial or Settle the Matter:
Depending on the nature of the negotiations the matter may end up settling, or it may proceed to trial. If it proceeds to trial you have to prepare yourself for an often long and sometimes difficult process. Attorney Sweeney will do everything he can to ensure you are kept informed and that the process is as painless as possible.

Plaintiffs

1. Contact an attorney right away:
In every case there is a statute of limitations that regulates the time limits for when a suit can be brought. If you miss this deadline, often times there is very little if anything that anyone can do for you. Contact an Attorney immediately to allow them to help determine when the statute of limitations runs up for your case.
2. Determine the total damages:
Generally speaking, when you are seeking damages from someone you should not be seeking a windfall, but rather to “be made whole” again. Damages will generally be limited to whatever actual harm you received. Although often publicized, punitive damages and very large awards are the exception rather than the rule.
3. Determine the cost of pursuing the suit:
Once again there are many factors to determine how much pursuing a lawsuit may cost, but Attorney Sweeney will do his best to help you determine how much it will cost to pursue your matter. Attorney Sweeney offers several different options for payment, but usually includes some combination of hourly or flat rate fee with a contingency based on the successful outcome of the case.
4. Decide whether to settle, and for how much:
Once we have determine numbers 2 and 3, we can make a much more educated decision about what our final settlement number should be. A law suit can be a long and drawn out process with lots of risks involved, it is very important to weigh those risks and costs and make a determination if you are going to settle the matter early in the proceedings.
5. Proceed with the suit or settle:
Negotiations are an integral part of every litigation and Attorney Sweeney will do everything he can to obtain a favorable settlement for your case. However, Attorney Sweeney is not afraid to go to court and hash out the issues in front of a Judge or Jury and will not be pushed around during negotiations. It is all about striking a balance between making the smart financial decision and getting the best settlement possible for the client, Attorney Sweeney does his best to walk that line.

Business Formation

If you are just getting started and have not yet formed your business, take a look at the different entities described below and let Attorney Sweeney help you determine which business form is right for you.

There are advantages and limitations for every type of business entity. Attorney Sweeney can not only take you through the step by step process of creating these entities, but is also able to help pick which business formation is best for you.

Sole Proprietorship

A sole proprietorship is the simplest structure for doing business, and involves the business being owned by a single person without creating a separate business entity. Because there is no separate business entity, there is no separation between the owner and the business for tax and liability purposes. While there are certain tax advantages to the sole proprietorship, such as the ability to defer some losses forward and backward, sole proprietorships have unlimited liability for all actions and debts of the business entity.

Partnerships

General Partnership- A general partnership is very much like a sole proprietorship, only there are two or more persons who share liability and flow through taxation in direct proportion to their interest in the partnership. General partnerships are governed by chapter 178 of the Wisconsin statutes. While no written agreement is required to perform a partnership, it is strongly recommended.

Limited Liability Partnership (LLP)- Limited Liability Partnerships operate much in the same way as General Partnerships except that it limits each partners liability for the other partners wrongful acts. Individual partners still remain personally liable for their own negligent and wrong acts.

Limited Partnership- – In a Limited Partnership, there is at least one General Partner who still retains unlimited liability, while there can be any number of Limited Partners who function much in the same way as stock holders. They are investors in the company whose liability only extends as far as their investment. They can lose the money they invested, but nothing more. They, however, cannot generally make decisions for the company nor bind the company to any contracts or agreements.

Corporations

A corporation is a business entity that is created by filing articles of incorporation with the Department of Financial Institutions (DFI). Legally speaking, it is an entity all to itself and is completely separate from its owners officers and directors.

C Corporation- Also known as a regular Corporation, the “C” refers to sub chapter C of the Internal Revenue Code. One of the advantages of a Corporation is that because it is its own entity, shareholders, officers, and directors do not have personal liability for the actions of the corporation. However, C Corporations are subject to what is known as double taxation. All profits that the Corporation earns are taxed and then any money that is paid out to the shareholders as dividends is taxed again.

S Corporation- The only real difference between a C Corporation and an S Corporation is which section of the tax code it falls under, C or S. Under section S, if all shareholders provide written consent to the election, the corporation will not double taxed. Instead, all corporate-level income will be taxed as shareholder income in proportion to shareholdings. There are certain restrictions to what types of business can organize as an S corporation, and with the advent of the Limited Liability Company described below, S Corporations are becoming less and less common.

Statutory Close Corporation- Generally less formal than C and S corporations, it can operate without a board of directors and without bylaws. If a corporation elects to be a Statutory Close Corporation it has the right of first refusal when it comes to shareholders transferring their shares to non-immediate family members. There must be 50 or fewer shareholders to be a Statutory Close Corporation. These corporations can elect to be covered by either section C or S of the Internal Revenue Code.

Service Corporation- Not a very common organization, it is for people licensed, certified, or registered in a specific field. To have a valid Service Corporation, it is required that all shareholders be licensed in that particular field. Unlike other Corporations, shareholders still retain personal liability for their own wrongful and negligent acts and possibly those they supervise. A Limited Liability Partnership (LLP) is generally a much better option as the tax and liability ramifications are almost identical and an LLP allows for non licensed professionals in the companies field to be partners.

Personal Holding Corporation- It is only valid when its only assets are other businesses. It cannot be actively engaged in any trade or business and is taxed under section C of the Internal Revenue Code.

Public Corporation- A C corporations that is traded on a stock exchange. These corporations are regulated by the federal Securities and Exchange Commission (SEC) and the various state “Blue Sky” laws.

Non-stock Corporation- Generally for non-profit organizations. It is not required to have members and is governed by a board of directors and officers. It is taxed under section C of the Internal Revenue Code.

Limited Liability Company (LLC)

LLC’s are very similar to S corporations only without some of the restrictions. They are taxed in the same way as S Corporations, with flow through taxation to the members based on their percentage of ownership. An LLC is owned by its members and managed by managers. LLC’s enjoy the same immunity from personal liability for business obligations. An LLC may have an unlimited number of members including corporations, other LLC’s, partnerships, trusts, and foreign individuals. If your business is organized as an LLC you are required to make it known to those you do business with that you are an LLC or you may lose your liability shield. Due to the flexibility and ease of set up for LLC’s they are quickly becoming the most popular structure for small and mid size businesses.

*Much of the information for this page was found in the Wisconsin State Bar CLE book on “Business Organizations.”