When people come to us for advice, or even just visit our website, it's because they have a specific problem to solve. And a lot of the time, after we start speaking to them, it becomes apparent that they might not be asking the right questions. Asking the right question is the first step in finding the best solution.
Are you asking the right question?
Most of our conversations start with a client asking a fairly specific question.
And most of the time, we answer that question with more questions. Usually, it's the answers to those questions that highlight the real issue that the client is trying to address.
Identifying the real issue to be addressed is the thing that unlocks the path to the solution, and the real questions that need to be answered. And sometimes, those questions are very different to the question that was originally posed.
For example, people will sometimes ask us about:
- The differences between two different forms of construction contract (eg AS 2124 versus AS 4000). However the real issue here usually relates to the most appropriate type of contract, taking into account the circumstances of the project, rather than the specific form.
- Preparing a tender or contract clarification to address a particular issue - when, really, the contractor's concern is to maximise its chances of winning the project without exposing itself to undue risk, and where the particular issue identified by the contractor may not arise (or might not be material) in the context of that project.
- How to make a claim under security of payment. This question makes two underlying assumptions that may or may not be correct. First, it assumes that security of payment is the best method of seeking payment. And second, it assumes that the security of payment legislation is available.
How do you know if you're asking the right question?
To really know if you're asking the right questions, you're going to need genuine subject-matter expertise and a couple of why's. I'll explain, starting with the why's.
Whatever problem you are trying to solve, ask yourself "why?" at least a couple of times. This process might lead you to an entirely different, and potentially more relevant, train of thought.
For example, we are often approached by companies looking for advice around how to implement an employee share scheme. We will always start this conversation by asking them why. The answer usually relates to a desire to better incentivize staff, to reduce the risk of losing key staff, or to increase the company's capacity to attract new staff.
Asking why once or twice more will do two things.
First, it will reveal whether an employee share scheme is likely to solve these issues. For example, if the underlying issues relate to the company paying below-market salaries or having a fundamental culture problem, a share scheme may not do much to solve the problem. Second, if the conditions are right for a share scheme to operate, the answers to these questions will be pivotal in the overall design of the plan.
But asking "why" a few times is obviously not going to solve the problem.
The why's should take you to the root issue you are trying to solve. From this starting point, there will always be more than one way you could move forward. And this is where subject-matter expertise kicks in.
Subject-matter expertise is the thing that allows you to understand all of your potential options, including options that you might not currently be aware of, and to pick the best way forward.
Without subject-matter expertise, you be left making guesses and assumptions. For example, once you have identified the root issue you are trying to solve, you might assume (unknowingly) that you are are aware of your all your options. You might assume that a particular option is available, or that a particular outcome is possible, when that might not be the case (or vice versa). You might think that the best way forward is one way, when in fact the real solution lies somewhere completely different.
The only way you can move forward with confidence and certainty is with subject-matter expertise.
And for the types of issues you can read about on this website, that's where we can help.
Do you have enough subject-matter expertise?
This is a hard question. Even with the best intent, this might be a question that's impossible for you to answer.
The simple fact is, like anyone, you don't know what you don't know.
In other words, until you have spoken with someone with greater subject-matter expertise than you, you won't even be aware that there is more to know.
The benefit of speaking with lawyers with specialist industry expertise is that, whatever problem you are facing, they will probably have seen it (or something very similar) many times before.
They will know what the issues are and what else you need to be thinking about. They will know what questions you should be asking. It's this expertise that can often lead you to a solution that might be very different, and potentially far more effective, than what you might be currently contemplating.
However reading articles like this will only ever take you so far.
If you'd really like to know whether you're asking the right questions, please just call me so that I can make sure you're at least pointing in the right direction. I'm not a lawyer, so I'm not going to have the answer for you. But I'm very confident that I'll be able to put you in touch with someone who does.
We work with organisations who work in the construction and technology sectors. You can read about the services provided by our construction lawyers in Sydney here. You can read about the services we provide to technology companies here.
If you think we're the kind of firm that could help you answer your questions, I'd love to hear from you.