I used to spend about half my waking day playing basketball, watching basketball, or thinking about basketball. I learned a lot from basketball that applies to life (including lawyering and China), such as the following:
1. Focus on your own improvement and on how you can improve your team as a whole.
2. Do not focus on the mistakes of others, such as your teammates, your coach, or the referee. Doing that is rarely productive and it is often counter-productive. I remember one game where I broke this rule because I felt the same referee had made three terrible calls on me in a row and I got so mad that he threw me out of the game. I remember another game where I got so mad I lost my concentration and made a couple of unforced errors in a row.
3. Prepare for the game you are to play. This means both preparing yourself and maybe even helping to prepare your teammates and it means scouting the person and the team against which you are playing. Your opponent have no left hand? Always force him left. Your opponent have no outside shot? Always hang back to cut off the drive. Study, study, study.
4. Going to be guarding someone whose game you don’t understand? Seek help from your coach or even from a friend who has had success in guarding him.
I thought of how basketball is like China business this morning after going through old emails and Facebook messages on our China Law Blog Facebook page, where I found a number of complaints about how I was too tough on a foreigner stuck in China because he owes money after a really bad transaction with a Chinese company. My post was A Lifetime Sentence for Operating in China Without a Lawyer, Well Sorta and in it I focused almost exclusively on the things this foreigner should have done differently and on the things this foreigner still seemed to be doing wrong. Those who wrote me said that I should have focused either instead or a lot more on how terrible the Chinese company had acted. One person merely wrote that “the other person was at fault as well.”
Well yeah, but so what? The point of this blog is to help foreign companies deal with Chinese companies. It is intended to help foreign companies deal with unethical Chinese companies, not to chastise unethical Chinese companies. In other words, our goal is to get our readers to focus on their own improvement. See #1 above. It is to get them to focus on what they can do to prevent problems with China. It is not to get them to focus on how difficult and unruly China is (other than to warn them of those risks and encourage them to better prepare for them). It does not help to “blame China” because blaming China is not a solution and if you think China is so bad, then do not do business with China and do not go to China and do not live in China. See #2 above.
This blog’s goal is to get you to focus on the game you are playing. Our goal is to prepare you to play against a player who very likely does not play by the same rules by which you play and on a court with referees who will be heavily biased against you. You can let that get into your head and weaken your performance or you can fight back as hard and with as much knowledge as you can muster/gather. See #3 above. And to the extent you need help, you should get it, before you step onto the court, not after you have lost the game. See #4 above.
And here is rule #5 that applies more for China than for basketball. If you contact an expert after you have played really badly and are seeking to recover, take the help instead of fighting against it. I cannot even begin to tell you how many times people get mad at me for telling them that we do not want to take their case because we do not believe it would be fair to do so. The below are just examples (modified to remove any identifiers) from the last month or so:
- Someone writes me because they sent $350,000 to a Chinese company for product A and they got product B worth about 1/5 as much. I ask them to send us their written contract so we can review it to determine whether it is worth pursuing and they angrily ask why I am focusing on a contract when the Chinese company so clearly ripped them off. I tell this person that without a contract they may not have any case at all and they accuse me of siding with the Chinese company. I tell them we are not interested in the case and they should not do business with China again in the future without an enforceable written contract in Chinese. They say they didn’t call me to be scolded. I get irritated and point out that they messed up so badly that we don’t even want to get paid to try to help them and I mentioned their needing a contract the next time so that it doesn’t happen again.
- My recent favorite. U.S. company buys millions of dollars (this number has not been modified!) of product from a Chinese company and the product is not certified in a way the buyer believed his company had required. Again, no contract. I tell this person that he is in a major dispute with the Chinese company and there are certain things he needs to be very careful about. One, I tell him that neither he nor anyone from his company should go to China right now because his company still owes 2+ million dollars to the Chinese company and someone could be held as a debt hostage over this. See Maybe Owe Money To China? Don’t Go There. I also tell him about Sinosure and about how oftentimes when foreign companies have a dispute with Chinese companies the Chinese company will register the foreign company’s brand name, company name, and logo as its own trademark, thereby blocking the foreign company from being able to use those names/logo in China to sell their products and even to have their products made in China. See China Trademarks and The Real Life Meaning of First to File.
U.S. company. We filed an application for our trademarks in China.
Me: Under your own company’s name?
U.S company: Our own name, of course.
Me: Why did you do that and who did that?
U.S. company: Why wouldn’t we do that? We used our regular trademark lawyers because they were cheaper than you?
Me: Well all I can tell you is that you should have used us because we would not in a million years have sought to get the trademarks in your company name because all that does is give the Chinese company perfect assets for it to seize to collect the 2+ million dollars it alleges you owe it. Now you are going to need to try to figure out how to get those trademarks into someone else’s name that is not going to be a sitting duck for an asset seizure.
U.S. company: What would you charge us to help with this?
Me: Nothing. We are just too busy to take on a matter like this. I then gave this person the names of two excellent (and super expensive) BigLaw firms in the top 3 US city in which he is located. I just did not want to work with this person. Note that this same person did about six things that convinced me that his company would make for a lousy client. Or to quote the great philosopher, Jerry West: “When it’s time for me to walk away from something, I walk away from it. My mind, my body, my conscience tell me that enough is enough.”
3. Whataboutism. About half the time (probably more like 80% of the time on our Facebook page). Anything our China lawyers write that might be viewed as at all disparaging of China will get met with a “what about how the United States does this” response. To which I virtually always think (and occasionally write): so what? This is a blog about China, not the United States. If you want people to know what the United States does, write your own blog. More importantly, two wrongs don’t make a right.
I could go on and on, but I won’t, because I need to focus more on what I can and should do and not on what others do. More importantly, I need to go watch the Washington Huskies v. University of North Carolina basketball game. Go Huskies!!!