How to pick a lawyer


One of the tropes that is running rampant right now is, “Don’t get an agent; just get a lawyer to vet your contracts!” There are a number of reasons advanced for this–one is the notion that an agent will take 15% forever, while you pay a lawyer a flat fee–but while people often put this forward, they very rarely talk about how to pick a good lawyer for the job. The advice I do see on that front varies from middling to startlingly bad.

Here’s the truth: a bad lawyer is like a bad agent. I’m kind of shocked that people in the indie community are now treating lawyers as if they are all brilliant, ethical specimens who will look out for your interests, whereas agents will not. Are we talking about the same profession? I am a lawyer. I know lawyers. Many of them are good, honest, and ethical. Some of them are not. Lawyers are just like agents–they can be crappy, stupid, and unethical. And, like agents, because they have a lot of power, it sucks mightily when you hire one who is crappy, stupid, and unethical. Also like agents, a good lawyer is a great thing to have.

You’re better off with no representation at all then picking someone who doesn’t know what they’re talking about. Here’s another truth: any time you’re picking someone to represent you because that person has superior skills/knowledge in a particular area, you are picking someone who you are particularly ill-suited to judge.

But there are a few things you can use as a general rule of thumb.

  • I see people saying, “Get an IP lawyer!” This is bunk. “IP lawyers” do a broad range of things. They draft patents. They litigate trademark disputes. They send DMCA takedown notifications and cease and desists to people who violate trade secret. Each of those lawyers that I’ve mentioned above are distinct people, and in point of fact you probably wouldn’t find one “IP lawyer” who does all of those things, because the branches of IP are very specialized. It’s very, very rare that you’ll find someone who both litigates patents and who also drafts complicated trademark licensing agreements. It’s so rare that I can’t think of a single practitioner who does all those things. I’m sure such a person exists.
  • You need someone who is versed in transactions, and specifically in the law of contracts.
  • But a contracts lawyer who happens to have some passing familiarity with IP is not enough. Anyone who remembers a damned thing about contracts can tell you that when you’re interpreting a contract, one of the things that you look to to determine the meaning of a particular term in a contract is trade usage. Thus, for instance, my contracts with Harlequin set out different royalty rates for “mass market” versus “trade paperback.” Someone unfamiliar with the publishing industry might get bent out of shape and say, “But what if they say your mass market is a trade paperback? They are, after all, sold in the trade, and have paper covers! How do you protect yourself from the claim that they only owe you 7.5% royalties on it instead of 8%?”That’s a claim that would make anyone in the industry roll their eyes, because everyone knows what the difference between a mass market and a trade paperback is. It doesn’t need to be defined in the contract because the industry has agreed upon standards.

    Attorneys do not magically know what trade usage is. That stuff is not tested on the bar. It is not taught in law school. It is learned by experience, and if your attorney does not have experience in the field of publishing, your attorney is basically taking your money without giving you any piece of mind. The attorneys who do know are the ones who have experience in the trade of publishing. If you want to hire someone to vet your publishing contract, you want a literary attorney.

  • So how do you tell if someone is a literary attorney? Answer: Because they have negotiated publishing contracts before. Many of them–not just yours. And, because this is a business that actually takes a good amount of time to learn, anyone who is a good literary attorney will have this as their primary bread and butter.Someone who has primarily worked on divorce cases is unlikely to be a good literary attorney. They’ll miss on two marks: They won’t have the requisite transactional drafting experience (at best, they’ll be drafting settlement agreements, but agreements regarding the dissolution of marriage are entirely different beasts than agreements that govern the creation of a relationship), and they won’t have regular, sustained experience in negotiating this particular type of contract. That means they won’t know what they can ask for and get, and they won’t know what there’s no point in asking for, and they won’t know what particular language means, and so they might get you in more trouble than you recognize.
  • A side note: I know more about the substance of contract law and intellectual property law than my agent–by a wide, wide margin. I feel confident saying that, and since my agent knows what I do in my day job, I feel fairly confident that she would agree. But my agent knows much, much more about the language of the trade of publishing than I do. That’s why my agent negotiates my contracts. I read them. I ask her questions. But I specialize in contract law and intellectual property, and I have an agent.
  • A good attorney doesn’t have any agenda except zealously representing your interests. An attorney who holds publishers in distaste and who approaches every contract assuming bad faith from the other party may not adequately represent your interests–they are more likely to scotch the deal entirely. If that’s what you want to happen, you can tell your potential publisher “no” without spending any money at all on an attorney.
  • There are people who are cited regularly for legal commentary in the indie community who, quite frankly, have shown an appalling grasp of basic contract law and have never studied intellectual property. I think some of these people are a malpractice suit waiting to happen. Ask hard questions of anyone you consider hiring. How many contracts have you negotiated with publishers? Which publishers? How did the negotiation turn out? How long have you been practicing? What sort of work have you done? What kind of transactional contract work have you done?
  • A good literary attorney is, in fact, very expensive. Keep in mind that many books do not earn out their advances, and so “15% of forever” often means “15% of your advance.”

This is a very, very brief list of things to look for. If you find a potential attorney to look over your work, and they fail on one of the points above, think very very hard before hiring them. If you find a potential attorney to look over your work and they fail on all of the points above…run away!

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8 Responses to “How to pick a lawyer”

  1. I would also add that while a good literary contract attorney might well be able to advise you as to what your contract means and which clauses are potentially problematic, they are unlikely to attempt to negotiate those terms on your behalf. Which is why it’s good to have an agent who both understands which terms are problematic and is willing to go to the mat for you, even if it means you pass on the contract and the agent doesn’t get paid.

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  2. Excellent advice and observations, as usual. Thanks!

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  3. Carradee says:

    Good points. I, too, get puzzled by folks who forget that you need a good editor/proofreader/artist/agent/lawyer/etc., not just a editor/proofreader/artist/agent/lawyer/etc. However, I do think that at least some of the “Get a lawyer, not an agent!” push comes from the detail that lawyers have more regulations and criteria to meet before they can hang their shingles.

    This reminded me of how the term “indie publisher” rankles a lot of folks, because it referred to “independent publishers” first, not “self-publishers.” And how I often find myself explaining the different types of editing (which is my own day job).

    It’s always good to have someone in a field to educate you about the internal jargon. Much appreciated! ^_^

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  4. “I’m kind of shocked that people in the indie community are now treating lawyers as if they are all brilliant, ethical specimens who will look out for your interests, whereas agents will not.”

    Great point, Courtney. I’ve also noticed that, and sometimes wonder if indies have just transferred their former reverence for agents/editors/publishers for IP lawyers and Amazon. *Nobody* is your fairy godmother. A wise businessperson has to look at the pros and cons of everything and everyone she works with.

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  5. C.E. Petit says:

    I’m shocked — SHOCKED — that you would refer to lawyers within the broad type of IP lawyers as “specialized.” Using the “s word” to describe a subset of lawyers is, after all, against the legal ethics rules.

    Really. See, e.g., Illinois Rule of Professional Conduct 7.4(c) (some version of which is in effect in every state except Louisiana, although often hidden elsewhere).

    That said, in reality I couldn’t agree with you more when you say that lawyers are, in fact, specialists… even withing recognized specialties. I’ve been attempting to unwind the problems created by [unnamed famous H'wood attorney]‘s incompetent review of a trade publishing contract for [now-deceased big-name author] for over a decade now, with no end in sight. As I’ve explained to a couple of physician-clients, lawyers are so specialized that it’s not uncommon to find one whose expertise is as restricted as an ENT specialist who “limits her practice” to the left side of the throat only.

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  6. I wholeheartedly agree. When I first started in this business, I had a lawyer friend look over a contract and he had no idea how to decipher it. I hope attorney/author Jonathan Kirsch updates his book contract handbook. It was so helpful in the early 2000s, but it’s a different ballgame now.

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  7. I ceased working with literary agents in late 2006, and in 2007 I retained a literary lawyer whose services I have used ever since for contract negotiations and legal matters/problems which arise in my career. I have recommended this course of action to many writers who, like me, have been through one bad (and EXPENSIVE) agent experience after another after another after another. (Don’t even get me started.) I have also recommended it as a path to consider for anyone who has not yet committed to working with an agent, and as a viable interim measure for writers who are between agents but feel certain they want another one.

    And THANK YOU for point out how inadequately -general- the phrase “IP lawyer” is. I think I’ve given myself carpal tunnel syndrome simply with the large quantity of times in the past couple of years (as working without an agent has morphed from being a freakish thing that EVERYONE tells you not to do, to being something that someone besides just ME is finally doing) I’ve corrected people who throw around the phrase “IP lawyer” or ask me to recommend an “IP lawyer” to them, etc.

    By last year, I was getting asked for referrals SO often that I finally got tired of typing the information over and over, and so I’ve put some links on my website. There are half a dozen literary lawyers there whom I refer people to. In every case, either I’ve dealt with the attorney in question or they’ve been recomended to me by someone I know personally who has dealt with them. I’ve also posted a couple of essays about how to choose a literary lawyer and how-and-why you might want to work with one. This directory is at:
    http://sff.net/people/laresnick/About%20Writing/Writers%20Resource.htm#Lawyers

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  8. Interesting article and interesting advice. I agree with a previous poster who mentioned the importance of having both a literary contact attorney *and* an agent. They play separate, but both important, roles. It’s good to have both. This is coming from someone who has worked with a Federal Criminal Defense Attorney, so it might seem I’m a bit out of my element. But I do know more than a little about authorship as well.

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Courtney Milan writes historical romance novels like the ones you see to the right. She still remembers bits and pieces from her old lives, where she was (variously) a scientist and a lawyer.

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