Over the past several months, the COVID-19 pandemic unequivocally and unforgivingly reminded companies worldwide that the unexpected happens even when it is least expected. As business owners and leaders navigate the uncertain operational and economic road ahead, many companies will survive and some will not; but as EDS founder Ross Perot once said, "It is the individual's ability to deal with the unexpected that characterizes the difference between success and failure." As further described below, a business lawyer's skill set is perfectly suited to help business owners and leaders focus, plan and execute during a crisis. Business lawyers are often employed by companies as in-house legal counsel but, if a business does not have in-house counsel, then outside corporate counsel often acts as the company's business lawyer. In times of extreme crisis, a business lawyer should fully utilize her skill set in the execution of the following actions to help protect the company's revenue, assets and employees: information gathering, determine the company's rights and obligations under its commercial contracts, file with insurance (and follow up continuously), (4) explore all potential sources of funding, and identify and negotiate with creditors.

Throughout a crisis, companies should seek to obtain all relevant information. Lawyers know where to look and who and what to ask to obtain the accurate and timely information businesses need to make decisions during times of crisis. By executing an in-depth fact-finding mission and staying up to date with changing governmental regulations during a crisis, a business lawyer not only can ensure continued compliance with laws, but her efforts may also uncover new resources or relationships to help the business. For example, the Small Business Administration's Paycheck Protection Program (PPP) recently provided much-needed affordable loans to struggling businesses and U.S. banks started issuing PPP loans less than a week after the enacting legislation was passed by Congress. The fund quickly ran out of money and only companies who were fully informed about and acted quickly following enactment of the PPP were able to participate in the initial funding of the PPP. U.S. Congress subsequently increased PPP funding to provide loans to more U.S. businesses but the funding increase was not automatic and subsequent participants are fortunate to have the opportunity to participate if needed.

Counsel can stay fully-informed on a real-time basis through law firm updates and webcasts, official national and local governmental websites, such as the U.S. Centers for Disease Control and Prevention, local news agencies in cities and counties in which the business has operations or employees, and industry consultants or associations, including industry-specific national associations such as the National Restaurant Association. It looks like the U.S. economy will be reopening on a localized basis, so business lawyers should consider staying informed as to local announcements and regulations in places where the business has offices, employees and operations.

When a company's future is uncertain, or it is closely managing cash flow because revenue declined significantly, then there isn't a lot of time for counsel to become familiar with the details of the company's commercial contracts. However, having a thorough understanding of a company's commercial contracts and each party's rights and obligations thereunder provides helpful data to any business, especially a business that is actively managing payables and other contractual obligations due to liquidity concerns. In-house counsel may consider including an outside law firm in any commercial contract review because law firms have tools to expedite document review, such as AI-powered software that identifies and extracts certain types of contractual provisions, such as force majeure and post-termination liability provisions.

Following any crisis, business lawyers should quickly review the company's insurance policies, file claims with applicable insurance carriers and engage fully with the company's insurance brokers, if applicable. Insurance brokers can be very helpful resources for business lawyers, especially during a crisis, because brokers ensure that adequate notification of any reportable event is timely provided to the insurance company and they normally have useful resources available to their clients. For example, an insurance broker who represents restaurants may have a restaurant-safety consultant on staff who acts as a safety resource for the broker's clients.

While gathering information, a business lawyer should identify and explore available local, state, federal or other governmental emergency funding for businesses, such as the PPP and other funding provided by the CARES Act, and any other available sources of emergency financing or funding, including industry-specific funds or other private funds. Unlike the Great Recession of 2008, the COVID-19 pandemic did not occur because of a lack of cash or other risk factors in the banking system. There is a still a lot of cash in the U.S. economy that will be deployed through government stimulus programs, private loan programs or other foundations or grant programs, among other things, to help companies and their owners survive the pandemic, but companies must first find the funding.

Finally, when a crisis triggers liquidity concerns, business lawyers can provide value by identifying and negotiating with the business's creditors to obtain relief from any short-term, liquidity-reducing obligations and explore longer-term solutions if the company's liquidity challenges persist.  Business creditors include lenders, landlords, ordinary trade accounts and any other parties to whom a business may owe money. Oftentimes, creditors are happy to work with a company that is experiencing an unexpected crisis, especially if the company makes a good-faith gesture to the creditor, such as a small payment or providing a written timeline for the repayment of the liability (and sticking to the timeline).

Through her information gathering skills and knowledge, the business lawyer is uniquely positioned to provide actionable information to a company's decision-makers during a crisis. Staying fully informed regarding the crisis on a real time basis and pursuing the action items suggested in this article, will help a business lawyer add value even in the direst of circumstances. In some businesses, this value-add can very well be the difference between success and failure.

Christina Marshall is a partner in the Dallas office of Haynes and Boone. She advises clients in a wide range of business transactions including mergers and acquisitions, joint ventures, debt and equity capital raises and other complex business matters. In addition to her experience in private practice, she served as the executive vice president and chief legal officer of a Dallas-based company that owns more than 200 restaurants nationwide.