Image Archives - Eric Kalde

Mental fitness

Philosophy for life — philosophy for life

I draw inspiration from boxing. It’s how I keep fit physically and mentally. The part I find interesting is that I do it mainly for mental fitness. The physical fitness, exercise, co-ordination and camaraderie of the boxing gym is secondary to the mental fitness. Training the mind to focus, relax, and keep going in spite of pain and exhaustion is what keeps me coming back.

I’ve been surprised to discover that boxers are a philosophical bunch. I’ve found this to be common to all who practice a martial art. Every martial art has an underlying philosophy. You can take what you learn in the ring and apply it directly to your life. One of the first and most enduring philosophies in boxing is: Keep your guard up. This is the first thing every boxer learns, even before they throw their first punch. It is also invaluable in business and in life. This is what ‘keeping your guard up’ means to me:

Keep your hands in front of your face. This is to stop you getting punched in the mouth. It protects your head and most vital and sensitive organs. Keeping your guard up does not simply mean approaching life in a defensive manner. Defence is only part of any sporting or military (martial) strategy. In order to succeed to need to play offensively too. Having a good defence enables you to do so. Consider the following:

Have a defence, but don’t just defend. When you have your hands up, you are not focused on protecting your face. Your hands are already doing that. You are looking for opportunities to strike. Then you unleash a barrage of punches in an explosive effort.
Keeping your guard up means having a solid foundation. When your guard is up, you feel protected. You can relax and focus on looking for opportunities to strike.
Ultimately boxing is about punching, not being punched. Once you have mastered keeping your guard up, you can focus on your striking. This will ultimately win the day for you. In the ring and in life.
If you need a reminder, you will get one. Let your hands slip for a split second and your opponent, trainer or sparring partner will punch you. It will hurt. Life will do the same.

How Life can be a battle. Sometimes the opponent is out there. Sometimes inside your head, in the form of doubt, fear and uncertainty. Keep your guard up and protect yourself from the downside. In business this means taking out insurance, having good contracts in place and getting good professional advice at appropriate times. In life it means being mentally prepared for adversity, while at the same time being on the lookout for opportunities to advance your cause. Protect what you have, continue moving forward.

DIY LEGAL WORK. Is it a good idea?

‘Doing it yourself’ has become possible in many fields of endeavour, thanks to the internet. The internet has become humanity’s repository of knowledge and resources. It is now possible to download the knowledge, plans and tips to do anything from building treehouses to planning your own funeral. Even legal work is now in the domain of ‘DIY’.

Although it may be possible to do it yourself, is it a good idea? As a lawyer, you might expect me to say ‘no’ to this question, in the interests of preserving work for me and my professional colleagues. Have a go I say! If you think you can do it, give it a crack. It’s as Australian as a day at the beach, barbecues and watching the footy. As a nation, we are a resourceful and adventurous bunch. Whether or not you actually want to do your own legal work is up to you. And to what extent

Everyone needs to call a professional eventually. ‘Getting out of your depth’ is a feeling we are all familiar with. It occurs at different points for different people. For instance someone with a background in real estate will have a much higher level of knowledge and experience in property law than someone who has never seen a commercial lease before. What I like about people who have tried it themselves is that they have realised hard it is, and appreciate your help. So by all means, have a go yourself!

A question I am often asked is – would you do your own legal work yourself? The deciding factor for me is the issues we face with all DIY projects:

no guarantees of doing it right
no insurance

The last point is the most important for me. In DIY, if you mess it up you have only yourself to blame. In engaging a professional, you have the security of knowing they are insured if they make a mistake. This is borne out in the old adage: ‘a solicitor who does their own legal work has a fool for a client’. Would I do my own legal work? No. Should you? It’s a free country. Have a go. When you need a helping hand, call me.

Eric Kalde

Kalde & Associates

Commercial Lawyers

When is the right time to terminate your retainer with a client? There can be many reasons for doing so.

At the top of the list of troubles that solicitors have with clients are: failure to pay invoices, and failure to give meaningful instructions. The second one seems to cause the most concern among practitioners, whilst the first is probably the most common.
Clients sometimes appear to make decisions which appear foolish and against their own best interest. At some point this becomes a medical issue and then an appropriately qualified medical practitioner determines whether they still have mental capacity to manage their own affairs. Before that occurs there is a great expanse of ‘grey area’ in which an apparently sane (albeit eccentric) client is giving you, the legal practitioner, some pretty loopy instructions.
I once attended a very good CLE seminar in which an eminent psychiatrist made the point that the fact that a person regularly makes decisions against their own best interest is not of itself conclusive of insanity. Very insightful I think, but it probably raises more questions than it answers.
I have found it helpful to approach this issue from a limitation of liability perspective. That is, confirming instructions in writing, the advice given, the subsequent instructions, your opinion that the informed instructions may bring about a negative result for the client, and so on. Politely but firmly terminating the retainer by way of a letter of advice that confirms the clients instructions and sets out their options I have found to be most helpful.
Most helpful of all is having a good retainer or fee agreement. This is best put in place at the beginning of the client engagement. Well drafted terms of engagement between the practitioner and a client spell out exactly what might happen if a client fails to pay their bills or provide meaningful instructions. It should also give the practitioner a wide discretion to refuse to act. If such terms are given to the client at the beginning of the business relationship, the practitioner will have plenty of escape routes later on, should that become necessary.

Minority Shareholder Agreements now available

A new precedent suite on minority shareholder agreements has now been published on smokeball. The marginalisation of one shareholder or group of shareholders is called ‘shareholder oppression’. The shareholder oppression claims heard in Australian courts occur in situations where a minority shareholder (or shareholders) are being unfairly treated by a larger (and usually a majority) shareholder. The oppressive conduct provisions of the Corporations Act are commonly used in conjunction with a claim of breach of director’s duty or in bringing an application to wind up the company entirely. Situations in which shareholder oppression occurs may be avoided by using a minority shareholder agreement, particularly in situations where the minority shareholders are making a significant financial contribution to the company.