Tune in for the first episode of Season 11! This season’s theme is Hard Conversations, and in each episode we will share teachable moments from real client stories. Join us as we share the story of a young plastic surgeon who had the opportunity to join a famous practice. We discuss non-compete agreements, contingency plans, and the importance of setting expectations on the front-end.
Listen to the full episode using the player below, or by visiting one of the links below. If you have any questions or would like to learn more, email us at firstname.lastname@example.org.
Intro: [00:00:00] Welcome to Legal 123s with ByrdAdatto. Legal issues simplified through real client stories and real world experiences, creating simplicity in 3, 2, 1.
Brad: Welcome back to another episode of Legal 123s with ByrdAdatto. I’m your host Brad Adatto with my co-host Michael Byrd. Well, Michael, happy New Year to you.
Michael: Thank you.
Brad: Let’s get ready to launch the show for season 11. Michael, tell the audience what we have in store for the season 11 theme?
Michael: As a business and healthcare law firm, we meet a lot of interesting people and learn their amazing stories. This season’s theme is hard conversations. We’ll take real client stories, of course we’ll scrub their names and protect their confidentiality, and they’ll be built around confronting and having hard conversations. Now, Brad, they don’t all have great outcomes, but there are [00:01:00] plenty of teachable moments.
Brad: Yeah, and Michael, let’s stay away from the bad breakup stories. I really don’t think we want to hear about the “It’s not you, it’s me” hard conversations.
Michael: All right, we’ll try hard to not bring up too many of your painful memories, Brad.
Michael: Yeah, well, let’s shift gears before we start. It’s a new year. We gotta start with something a little lighter. Are you familiar with a person named Victor Wembanyama?
Brad: Well, first off, congratulations to getting the last name well said because you know I would struggle with that one. Yes, and for those who don’t know, you probably have heard this guy called the “Greek Freak”. Well, Victor is really the French freak.
Michael: Okay, and for those who don’t know, we’re talking about basketball.
Michael: We’re talking about basketball players, and so, yes, Victor Wembanyama, Wemby, which is much easier for me to say, is from France. He is widely [00:02:00] considered the best NBA prospect since LeBron James. Now, let’s put that in perspective a little bit here.
Brad: All right.
Michael: Because not everybody may be as big of NBA fans as you and me, Brad, but we’re Dallas Maverick fans, and we all in Dallas love Luca Doncic.
Michael: He is widely accepted as a generational talent around the NBA. He’s a favorite to win the MVP this year. He’s just incredible.
Brad: Yeah, and there’ve been several different MVPs in the recent years. Are you saying Victor is a better prospect than any of them?
Michael: That’s the buzz, Brad.
Michael: So think about this, Lebron last won the MVP in 2013, so here’s a list of people who’ve won the MVP since LeBron last won it.
Brad: All right.
Michael: Kevin Durant, Steph Curry, Russell Westbrook, Giannis Antetokounmpo, the Greek freak.
Brad: The Greek freak!
Michael: We’ll go with that, and Nikola [00:03:00] Jokic with the Denver Nuggets. These are all incredible players, iconic players that have won the MVP. Victor is considered a better prospect than any of those players when they came out.
Brad: All right, Michael. Well, there’s a lot to take in, but why is Victor so special?
Michael: Well, let’s start with the physical attributes. We’ll date ourselves of course, but I picture the Russian in like the Rocky Balboa movies.
Brad: Oh my God, you just did date yourself.
Michael: Yeah, so Victor is 7’4” and for context, a tall NBA player is 7’0”, maybe 7’1”.
Michael: So he towers above the towers in the NBA. He has an eight foot wing span, which basically means that he can just stand there and swat away anything and everything that comes [00:04:00] his way. LeBron James actually referred to him as an alien.
Brad: Yes, and so a couple different things. Number one, I think he’s slightly taller than me, is what I heard.
Michael: A little bit.
Brad: Yeah, just a little bit. You know, with LeBron calling him an alien, I guess maybe he should know since he started in the remake of Space Jam.
Michael: Yeah. Nicely played there, Brad.
Michael: Okay, well, here’s a quote I saw about wimpy that just stuck out to me. One NBA executive said he is not a franchise altering talent, he is a league altering talent.
Brad: Yeah, Well that could be considered a big talent.
Michael: Yeah, well, supposedly he has an unblockable shot. He can alter shots, as I mentioned, without even leaving his feet. He can shoot three pointers like guards, and when I was reading this article, I actually got so curious that I went on YouTube and saw multiple clips of him dribbling the [00:05:00] ball up the court like a point guard. It’s really bizarre looking at someone that’s 7’4″, but he’s like the Russian in Rocky.
Brad: That would very cool. Yeah, I think the French freak should stick now. It’s very freaky.
Michael: Yeah, well, the hype is so big that the NBA is concerned about tanking.
Brad: Oh, wow. I think, Riley, we just had our first vocabulary word the day. For those that don’t know…
Michael: Of the season.
Brad: Of the season and day, so thank you, Mr. Miguel. Tanking is really when a team just purposely loses. They intentionally do this because they’re hoping to skew a better draft pick and that’s apparently what’s happening. We’ve read some articles on this.
Michael: Yeah, and what’s weird is the NBA, because there’s only five players on a court, getting that type of player can alter a team from being bad to the playoffs in one year. They actually have preventative measures in place for many years to prevent tanking. [00:06:00] They’ve created a lottery system, which basically says that every team in the NBA that does not make the playoffs will basically have a weighted chance in a lottery to get the first pick. So, the worst team will have higher odds to get the first pick, but it’s not significantly higher, so it doesn’t really incentivize tanking.
Michael: With Wemby coming in, the prediction for this year is that fringe playoff teams will actually tank to not make the playoffs, just so they can have a chance to get in the lottery to draft Wemby.
Brad: Yeah, and we’ve talked to and read articles over the years about how competitive athletes are, so I can’t really imagine an NBA player purposely tanking. It just doesn’t seem to be in their blood. I can imagine maybe certain organizations saying, I gotta get more fans here, I gotta put a winning team out there, so bench the best players.
Michael: Yeah, [00:07:00] exactly. Well, before we transition to our story, all this Wemby talk has made me curious. I have a feeling I know the answer, but I’m gonna ask it anyway.
Brad: All right.
Michael: Who do you, Brad, vote as the best football player of all time and why?
Brad: Yeah, that’s easy. Everyone who listens to the show knows I’m voting for Drew Brees. Look, he got us our first and only Super Bowl, got us to several NFC Championship games…
Michael: Who’s us?
Brad: Us, The Saints, sorry, people. Yes, Drew Brees, from the Saints in New Orleans. Besides setting these insane records, I mean, he’s not a very tall guy, and he’s set all these crazy quarterback records. I know there’s other people who will have these intelligent arguments, which probably makes sense about why he’s not the best player ever, great, but you’re not going to convince me otherwise. It’s the fan side of me.
Michael: Short guy wins the Super Bowl for the Saints. Yeah, I can see why you like him.
Brad: Yeah, there you go.
Brad: What are you saying, Michael?
Brad: Oh, okay. [00:08:00] Well, I’m going to ask you a vote and see if this hits close to you. Tell the audience who you would pick as the greatest typist or greatest tennis player of all time?
Michael: Well, I’m afraid the audience won’t connect with typing talk.
Michael: As we go into the greatest talents, so I’m going to go to tennis, which may not be everybody’s cup of tea, but it is, as you know, my cup of tea.
Michael: I’m a big tennis player. I grew up playing tennis and have started playing in the last five years again competitively. You and I have talked before, Brad, just to give some context to this answer, and we talked about teaching our kids math and how frustrating it is because the way we learned to do math is different than the way they teach math nowadays.
Michael: Yeah, everyone can relate at some level to that experience.
Brad: Oh yeah.
Michael: Well, believe it or not, tennis has some similarities.
Michael: So there’s this, what they call modern [00:09:00] tennis, and so the way I was taught to play tennis, like the style of ground strokes, the way they taught it when I was growing up is different than how the game has evolved. It’s actually been an adjustment for me to adapt to the modern game and the modern style since I started playing. Well, all of that is really, I think, credited to Roger Federer. He is my vote for the best player of all time. Now, it is a tight race. There’s the three tennis players who all have been a part of this same generation, Raphael Nadal, and The Joker, Djokovic, and so, in fact, Roger doesn’t have the most grand slams of all time, but he was the first and he’s one of the most elegant players, and he completely changed the game of tennis, and so he’s my favorite.
Brad: I figured you’d yell out [00:10:00] McEnroe because if you say McEnroe, you have to yell his name. All right, audience members, we’ll get out a sports talk. That was a lot of fun for us to open up Season 11. Pretty easy conversations for us to get into some type of sports. We covered basketball, tennis, typing, football, all of the important elements. So what are we doing today with this hard conversation?
Michael: Okay, well, today, our hero is not an athlete, but he does actually look like Roger Federer.
Brad: Yeah. That was a big stretch there, buddy. Taking sports talk into these hard conversations.
Michael: I couldn’t help it, man. I was picturing the client, who I won’t obviously identify, and it made me start thinking about athletes and it reminded me of the win before.
Michael: I shouldn’t let people too far into my brain.
Brad: Yes, that’s a really fair assessment.
Michael: Okay, all right, let’s get going. Our client in this story today, will be called, Dr. Roger.
Brad: Oh my gosh! [00:11:00] That’s such a surprise, Riley. I’m shocked.
Michael: Yeah, yeah, he is a doctor. Oh, you meant the Roger?
Michael: That looks like Roger Federer.
Michael: Got it. Okay, well, Dr. Roger is a plastic surgeon who is looking to start his practice in Miami, Florida. His family and his wife’s family lived in Miami, so they were all in when looking for their first job to be able to go home.
Brad: So far so good. It’s relatively common story.
Michael: Yes, I agree. Dr. Roger hired us at the front end of his job search when he was starting to have preliminary conversations to become an employee with a senior plastic surgeon in Miami. We’ll call him, Dr. Nadal.
Brad: Of course you have to bring in more tennis talk here. All right, I guess we’re going to have tennis names for every episode now, or just this one?
Michael: Just today, Brad.
Michael: This conversation with Dr. Roger turned out to be important because this [00:12:00] preliminary conversation, that he and I had, we started with the whole plan A, plan B conversation.
Brad: Oh my gosh. We have our second vocabulary word for this season, which is plan A and plan B, Michael. This is a term we use our office all the time, especially when we’re talking to anyone on their moves and contracts and building up their clinics. What does this mean, tell the audience what this means?
Michael: So when we’re on the front end trying to figure out an opportunity for one of our clients, we want to understand what’s their vision for themselves. So sometimes it’ll be, especially when it’s someone coming out of school, I’ll say, “Well, you know, what do you want to be when you grow up”? “If this plays out perfectly, what does this look like in five years?” And that starts to shape out what your plan A looks like.
Brad: Did anyone ever say a professional typist?
Michael: Yeah, that was my plan B, Brad.
Brad: Okay, yeah.
Michael: My plan A was being your partner, even though I didn’t know you yet. [00:13:00]
Michael: Plan B is just that, what are you going to do if things don’t work out with your plan A. It’s your contingency plan.
Brad: Yeah, and when we talk to people about this, there’s a lot of different forces that they have to accept when they’re building this. Where are they from, where is their spouse from, what are their needs for cash versus where does it burn? I mean, especially if they’re coming out of school for the first time or they’re trying to bring on a partner for the first time, they have to balance all those elements in that plan A and plan B, but audience members, let’s jump back into our doctor story today.
Brad: So, where are we in the story?
Michael: Yeah, and so Dr. Roger was excited by the opportunity to join forces with Dr. Nadal. Dr. Nadal is a famous plastic surgeon with a thriving practice. So part of Dr. Rogers plan A, as far as his clinical specialty and the types of cases he was gonna be doing was all lining up with Dr. Nadal. Dr. Roger was going to [00:14:00] handle initially all the body work while Dr. Nadal handled all the facelifts and the other above the neck type surgeries, and this was going to be great. He was gonna get enough cases to get his boards and really start building his reputation in the Miami community.
Brad: Well, sounds pretty good so far. All right, so had Dr. Nadal made a formal offer to Dr. Roger at this point?
Michael: No, it was a little early. They were introduced at a plastic surgery meeting.
Michael: They had connected on these clinical discussions I just mentioned.
Michael: When I first spoke to Dr. Roger, he was scheduled to actually do an office visit with Dr. Nadal, and the talks were expected to get a little more focused at that point.
Brad: Well, and that’s a good thing that he did that, they had opportunity to work together before they even decided to do something. What came out of the plan A, plan B conversation.
Michael: Yes, Dr. Roger and I were working through it, and it became super clear that as excited as Dr. Roger [00:15:00] was about the opportunity to work with Dr. Nadal, the most important thing to Dr. Roger was going to be going home and setting up his practice in Miami. He was all in to practice in Miami for his career.
Brad: Yeah, well, that’s great information though. I’m sure the audience is trying to wonder the same thing. The elephant in the room, Michael, I’m sure is whether Dr. Nadal was going to have to have a non-compete in his contract.
Michael: Well, exactly, Brad. I mean, it was time for Dr. Roger to put his big boy pants on and have a hard conversation.
Brad: Dun dun dun. All right, Michael, we discussed having a fun sound or something in the season when we hit the point of the story where it’s time to have that hard conversation. How’s that sound?
Michael: Oh, Brad. At a minimum let’s have no singing when we hit this moment. I wish we had a sound machine or something, but I know I’m not going to be able to control you.
Brad: You have a sound machine, it’s [00:16:00] called Brad.
Michael: Yes. Okay, well, I will regretfully and reluctantly allow it.
Brad: Yes! All right, well, what was Dr. Roger going to say since we’re having this hard conversation?
Michael: Yeah, so we talked about the need to preemptively deal with this elephant in the room at the office visit. I mean, he knew that his absolute top of the list, part of his plan A was that he needed to be in Miami and he needed to be able to stay in Miami.
Michael: So we rehearsed the messaging so that it would come across as respectful. The ultimate message was that, because he was moving to Miami to be with his family and he was going to practice in Miami for his career, he could not sign a contract with a non-compete.
Brad: Well, so did he have the nerve to actually do it at Dr. Nadal’s office?
Brad: From the visit?
Michael: Yeah, absolutely. Dr. Roger did a great job. He shared with Dr. Nadal and Dr. Nadal was extremely positive. [00:17:00] He said he would not have a non-compete and even went so far as to say that he did not like non-competes because they’re not enforceable anyway. Now, side note, Brad. He must not have listened to our red flag season.
Michael: Because we had an episode on red flags, non-competes are not enforceable, but that’s getting a little off topic.
Brad: It sure is a little bit. Well, so that’s amazing that he had this hard conversation. Hat tip to him. So they’re now partners and we’re gonna go to the happily ever after scene?
Michael: Not exactly.
Michael: Dr. Roger actually never started practice with Dr. Nadal.
Brad: Wait, wait, wait, what? I think we missed something in the story. You’re missing something, Michael. Go back. You said that they had a conversation about the non-compete. Michael, you have some explaining to do here.
Michael: Okay, well, after the great meeting, it was time to go to the employment contract phase to memorialize the relationship.
Michael: Well, the contract arrived and it had, you guessed it, Brad, [00:18:00] a non-compete. Not just any non-compete, a non-compete covering the entire city of Miami.
Brad: Okay, so this is like two boats passing middle of the night. We got a massive disconnect here.
Michael: For sure. Dr. Roger had no idea why it was included. Thankfully, he called me immediately and sent it to me immediately and my initial thought was, okay, let’s not overreact here, Dr. Nadal may not have passed this message on to his attorney about the hard conversation. The lawyer put the non-compete in and we wanted to find out why, so Dr. Roger agreed to play cool and he reached out to Dr. Nadal.
Brad: Well, since you’ve already ended the story that they weren’t working together, I guess it didn’t go well since he didn’t join the practice.
Michael: Wow, Brad, pretty smart there.
Brad: I was paying attention.
Michael: Nice, Dr. Reasoning. Okay, Dr. Nadal told him in that conversation, he said, well, that his buddy, who was also a plastic surgeon [00:19:00] and his lawyer insisted that he had to have a non-compete. So Dr. Nadal went along with it.
Brad: Okay, so how did Dr. Roger respond?
Michael: Well, I was proud of him because he stuck to his boundaries and followed through with what he had said, that he could not join with the non-compete. Dr. Nadal beat around the bush, trying to talk him into it and alluding to dropping it. He would say, I’ll go talk to my lawyer and to my friend again, but ultimately he wouldn’t ever remove it. Dr. Roger walked and decided to start his own practice in Miami.
Brad: Yeah, so how did Dr. Roger feel about the strategies to address this non-compete upfront? Because it didn’t work, Michael, in the sense that he didn’t end up going with his contract or going to join this group. Obviously because of the non-compete.
Michael: Yeah, for sure. I mean, he was definitely disappointed with the outcome, but ultimately he was [00:20:00] happy with the strategy. He found out that Dr. Nadal would’ve been a terrible partner because of the way he handled that conversation. I mean, Dr. Nadal gave him lip service and told him everything he wanted to hear, and then passive aggressively did the bait and switch and gave him a huge non-compete. Really it would’ve come up in contract negotiations anyway, if he had not had the hard conversation. It actually would’ve been a much more difficult conversation because it would’ve been in the throws of contract negotiations.
Brad: Yeah, I totally agree. For our audience members, think about this, they’re wasting each other’s time if neither one of them could really agree to this piece of the noncompete. To us, we think its better just to be addressed up front.
Michael: All right. Well, Brad, let’s go to break and after we come back, let’s talk about some lessons to be learned from the Dr. Roger contract story.
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Brad: Welcome back to the legal 123s with ByrdAdatto. I’m your host, Brad Adatto with my co-host Michael Byrd. Now Michael, this season 11, our theme is hard conversations. Dr. Roger learned leaning into these hard conversations on the front end doesn’t always work out though.
Michael: I know, it’s a bummer. Many may wonder, why did we even lead this season off with a seemingly unsuccessful hard conversation?
Brad: Yeah, let’s just [00:22:00] reset here. All right, Dr. Roger on the front end communicated the importance of living in Miami and that he would not be willing to sign this non-compete because that’s where he had to be. At first, Dr. Nadal agreed, and then when the contract came, there was a non-compete down in it and everything obviously turned sideways from there on.
Michael: Yeah, and I know you and I, Brad, we would both agree that though this did not work for having the hard conversation, that this is the best possible outcome.
Brad: Yeah, and fortunately, Dr. Nadal also revealed his true colors, that the contract was not what he thought it would be, and so it didn’t get signed. Michael, maybe we can just talk about why thinking or when you’re doing your plan A and plan B, why it’s so important.
Michael: Well, ultimately we believe that the most important thing that comes out of a signed contract, when it’s [00:23:00] done correctly, is alignment of expectations on both sides.
Brad: Wait, Michael, what do you mean by when done correctly?
Michael: Well, the parties actually have to know what they want and communicate about it. This is why Plan A and Plan B is so important. This helps our client be clear about what is important to them.
Brad: Yeah, and there are also common mistakes made. The results of signing a contract without this alignment of expectations, for example, a young physician will sometimes just sign the contract on the premises that not negotiating, or they signed blindly. In season four, Michael, we had this entire podcast called Signing Blindly Physician Employment Agreements with Gary Tuma. Dr. Tuma really talked about how it affected him, or he just signed the agreement and they said, this is the best deal you’re going to get. You have to sign it and don’t try to negotiate it. He just did, and he didn’t even try to negotiate and realize what a mistake that [00:24:00] was for him.
Michael: Yeah, and there’s clearly no alignment of expectations.
Michael: He just took what they gave him.
Michael: The flip side, too, is if a client is just focused on trying to win their contract negotiations without actually having hard conversations to try to find alignment, that also is not “done correctly”, where you’re seeking this alignment. We actually had another episode, actually last season when we did the other people’s problems on the dancing doctor. I had the little side story about our client who just decided to go for broke and ask for everything. But the elephant in the room was that he had some sense that there was not clinical alignment there. Of course, he found out the hard way that he had just partnered with the dancing doctor.
Brad: So you mentioned hard conversations. Again, Dr. Roger clearly had his plan A and plan B. What was the goal with the hard [00:25:00] conversation?
Michael: So once you know your plan A and plan B, you’re equipped to understand what works for you and what doesn’t work for you. You’re empowered, but you didn’t have to communicate it. What made this so hard for Dr. Roger is that non-competes are a touchy subject.
Michael: It’s like you’re going in talking about what happens if I leave, and it really can put the exciting opportunity on a sour taste.
Michael: Because you’re talking about these bad outcomes circumstances. The goal always with a hard conversation, should be to communicate what needs to be said about your own plan A, plan B, so that there’s at least hope for alignment. What some people do that is not healthy and can lead to problems, their goal is to actually control the outcome or control the response of the other person. [00:26:00] I think we’ve all learned a lesson or two along the way that if you try to control the behavior of someone else, you’re going to be disappointed. If Dr. Rogers goal with having the hard conversation was making sure he did his part in finding alignment, then it can be successful.
Brad: Yeah, and in this case, Dr. Nadal basically did the slow no, where he agreed, but then he really didn’t agree and there was not an alignment. In fact, this is what happened. I mean, thankfully, the important area of the non-alignment was discovered before they really started pursuing and getting deep into the contract, and obviously before it was signed.
Michael: Yeah, exactly. It would’ve been less painful had Dr. Nadal spoken up at the time of the hard conversation, but still the fact that they were able to deal with this and part ways before they started working together saved significant, significant heartache.
Brad: Yeah, [00:27:00] sure did. So what happened with Dr. Roger?
Michael: Dr. Roger opened his own practice in Miami, after that. It was tough going for him at the early stages because opening your own practice is risky and difficult, particularly when you’re just starting out.
Michael: But Dr. Roger’s still fighting the good fight and most importantly, according to his plan A, he is in Miami with his family.
Brad: That’s awesome. What about, Dr. Nadal?
Michael: I don’t know for sure, but I believe he’s still looking for an associate to join his practice. I can only hope that he is more clear on his own plan A and plan B now. So, as we wrap up today, Brad, do you have any final thoughts?
Brad: Yeah, most people when they get that first contract, they only focus in or examine the compensation section. They go so blindly in that it’s, Hey, my goodness, I’m getting my first paycheck ever, and everything else will just kind of fall in the place, and they really fail to take that step back and examine all the [00:28:00] elements of why, in some cases they should be joining the group or if you’re offering it, why you should have if someone join you. That’s why I know that you and I really do love the idea of plan A and plan B because it does provide that roadmap of the direction as to what is best for your career. Of course, we’re not saying not to sign an employment agreement that doesn’t non-compete because they’re, again, depending on your plan A and plan B, might not be that big of a deal. You just have to look at all the factors that impact your plans. Michael, final thoughts.
Michael: There’s no shortcuts around a hard conversation and actually the NBA teams that are thinking about tanking could learn a lesson or two from Dr. Roger because taking in the hopes of getting this generational talent, it is not gonna work out. You’re taking shortcuts around doing the right thing, the same goes in business, and in this case, in a contract negotiation.[00:29:00] If you skip the hard conversation, it is only going to come back to bite you later. Dr. Nadal is a great example of what not to do because he tried to placate Dr. Roger instead of turning into the hard conversation. It made the situation way more awkward and challenging than it could have been.
Brad: Yeah, Michael, that’s all the time we have for the opening of Season 11, but audience members stay tuned. Next Wednesday we have another hard conversation, and this one won’t go as well as the last one because sometimes if you don’t listen to advice, it might just buy you in the…
Outro: Thanks again for joining us today and remember, if you like this episode please subscribe. Make sure to give us a five star rating and share with your friends. You can also sign up for the ByrdAdatto newsletter by going to our website at ByrdAdatto.com. ByrdAdatto is providing this podcast as a public service. This [00:30:00] podcast is for educational purposes. This podcast does not constitute legal advice, nor does it establish an attorney-client relationship. Reference to any specific product or entity does not constitute an endorsement or recommendation by ByrdAdatto. The views expressed by guests are their own and their appearance on the program does not imply an endorsement of them or any entity they represent. Please consult with an attorney on your legal issues. [00:31:00]