Business Musings: How To Hire A Lawyer (Contracts/Dealbreakers)

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For weeks now, I’ve told you to hire an attorney to handle your contract negotiations instead of hiring an agent. This advice should apply to all your legal needs when it comes to writing. Even though agents say they’ll “manage” your career, they really won’t. They’ll give advice they’re not qualified to give—as in legal advice for contracts when they’re not a lawyer or in how to write a novel when they’ve never written anything—and then they’ll take 15% for the life of the project.

If you want to see a lawyer take apart an agent’s arguments, look at the comment section of the blog two posts ago. TA takes on the poor agent who dared post at the end of that blog. Look at the point-by-point questions, which, to date, the agent hasn’t answered.

Here’s the funny thing, though. I have to berate writers to get an attorney. Writers are terrified of attorneys. Writers think attorneys are expensive and impossible to work with. Writers think hiring an attorney will harm them.

Writers are wrong.

Agents cost the writer money. 15% over the life of a project can run into the tens of thousands if not the millions of dollars if things take off. Attorneys bill until the job is over, and most jobs the writer hires the attorney for will only take a few hours. That’s a few hundred, maybe a few thousand, dollars at most.

But writers have this image of attorneys as assholes and bullies. I know a lot of assholes and bullies, only a handful of whom are attorneys. Attorneys are trained to be direct and to the point. They learn how to ask the right questions to get the right answers.

Writers look at agents as caretakers, nice people who will handle their business and make them feel good about themselves.

Here’s the thing, folks: People who gravitate to professions that involve sales are very personable. They’re good at reading others, and great at making a potential client feel good about themselves.

Attorneys don’t have to be charming or personable. They get more than enough work without charming someone into believing that they have the secret handshake.

Here are the important differences between agents and attorneys.

  1. Attorneys are regulated. Agents aren’t.
  2. Attorneys, as officers of the court, have to follow rules of behavior. Agents don’t.
  3. Attorneys are licensed. Agents aren’t.
  4. Attorneys charge by the job (hourly or flat fee). Agents charge a percentage for the lifetime of the project.
  5. Attorneys have years of training in the law. Agents have none.
  6. Some of that attorney training includes training in negotiation. Agents get none.

I can go on, but I won’t.

Let me get rid of another myth.

You hire an attorney for one job. Whatever that job is. Maybe it’s negotiating an option agreement out of Hollywood. Maybe it’s drafting a contract for your new business.

I’ve hired attorneys to handle wills. I’ve hired an attorney to handle a divorce. I’ve hired an attorney to read a legal document I did not understand and have him explain it to me—not negotiate it, not change it—just explain it.

If you weren’t really satisfied with the work your attorney did on that one job, then don’t hire the attorney for the next job. You also have a lot of recourses if you feel you’ve been harmed by that attorney’s behavior—from contacting the local bar. The simplest thing, though,is to never hire that attorney again.

You can have an attorney that handles most of your business matters for years or you can hire an attorney for a single negotiation. My excellent divorce attorney is not the same person I hired to help with a will, and they are not the people I contacted to explain that legal document.

Because here’s the thing:

Attorneys come in different types.

The law is large and complicated. It differs in each country. It differs based on type of case—criminal, civil—and ways those cases are handled—litigation, contracts. You don’t hire an attorney who only handles maritime law cases to negotiate your book contract. That attorney would be as at sea with the book contract as you are. (Okay, yes, I punned. So sue me. Using a lawyer…)

Anyway, lawyers have different specialties. In some states, confusingly, the lawyer can’t claim to have a specialty. That lawyer has “an interest in” a certain type of law. The lawyer will tell you that they don’t handle a certain kind of case, and then they will refer you to another lawyer. Don’t worry. Referrals happen a lot.

Better, though, if you enter the right ballpark from the start. So as you begin your search, realize that many lawyers—particularly small town lawyers—are generalists. They handle a whole bunch of cases, from criminal law to corporate law.

For your business—your writing business—you’ll want a good attorney who can help you on the local level with the best way to set up your business for the state you live in. There are corporate considerations (corporations cost money to create and maintain), tax considerations, and many other rules and regulations. Local business attorneys know these things.

But for your contracts and copyrights, you want an intellectual property attorney or a literary lawyer. If you’re dealing with movie companies, you’ll want someone who has successfully negotiated with studio lawyers.

Realize that even attorneys with specialties have limitations. Make sure, for example, that the intellectual property attorney you hire specializes in copyright, not trademark. Unless you’re trying to figure out if you should trademark your super-dooper main character from your mystery novel. Then you might want someone who specializes in trademarks.

You see?

And yes, I know I just overwhelmed you.

But realize this as well: Attorneys will tell you if they lack the expertise to deal with something. They don’t want the learning curve any more than you want them to learn on your dime. Attorneys will refer you to the person who can best do that particular job, hoping you will come back and hire the referring attorney when you need their expertise.

What you need right now are names of literary lawyers. I don’t have many names, and I wouldn’t commit to them in this blog even if I did. But the writer Laura Resnick keeps a list of literary lawyers on her writer’s resources page. She updates that list when she hears something, good or bad, about an attorney. You can find that here.

If you need to hire a different kind of attorney, say, a business attorney, ExpertLaw.com has a page of suggestions on how to find that attorney.

In her book, Self-Publisher’s Legal Handbook, Helen Sedwick has a section on hiring attorneys. She’s focusing on attorneys for possible litigation, but her advice holds. You can find that chapter online here.

Sedwick and I agree on the most important thing you need in an attorney. That’s experience. When I knew I needed to get a divorce, I called a good friend of mine and asked her who the best family law attorney was in the State of Wisconsin. She gave me a name. Then I asked another friend the same question. He gave me the same name.

Then I researched the attorney. I checked with the state bar to make sure that no one had filed any complaints against her. I did some other due diligence.

This was all in the 1980s, when researching was hard. Some of this stuff is on the internet now, and you can find it easily.

If you have a choice between a cheap brand-new attorney two years out of law school, who has hung out his own shingle and runs his own single-person firm, and an expensive attorney with thirty years experience in copyrights and contracts, for Godssake, hire the expensive attorney. Not because of her rates, but because of her experience. A simple task will take her fifteen minutes. It might take the brand-new attorney three days to find the relevant case law, and he still might not get it right.

Since you’re hiring an attorney for expertise, make sure they actually have expertise, and not just a few semesters of contract law at a mediocre law school.

If possible, sit down with the attorney before hiring them. Most attorneys will talk to you as a prospective client for fifteen minutes to an hour for free. A few of the attorneys at big firms will charge a reduced rate or a one-time fee for that meeting. Pay the money. See if you’re compatible with this person.

Sedwick says this:

…avoid bullies. Also avoid gladiators with something to prove to the world. (Not on your nickel, please.) Be wary of attorneys who brag too much about their own achievements or who assure you your case is a “slam dunk.”

One other thing she recommends is this: Find out if the attorney you’re talking to is the attorney who will actually handle your case. In some multiperson law firms, easier cases go to the associates. They’re still attorneys, but with less experience and/or less clout.

You might not need clout on this particular case, and might be fine with the associate. But you need to meet that associate if they’re going to handle your case. If you like the Big Name Lawyer, and hate the associate who’ll be handling your business, don’t hire that law firm.

It’s pretty simple.

You can talk to several lawyers before hiring any one of them for a single case. When Dean and I had to deal with our friend Bill’s estate, we talked to two different lawyers before settling on the attorney who ended up handling the whole thing. That’s not unusual.

Writers often say that they are going to hire an agent because they can’t afford an attorney. Y’know, the old for want of a nail thing.

Yes, many attorneys require payment before they start working for you. However, that payment is a retainer, which goes toward paying your bill. If you don’t use the full retainer, then the attorney will refund the remaining portion when your business is concluded.

It works like this. Attorney A charges $50 per hour. You have a meeting with her about what you want to hire her for, and she asks for a retainer. Some attorneys ask for a retainer of 10% of the overall guestimated costs of the job, some ask for a specific retainer. Let’s say that Attorney A asks for a $500 retainer.

That means you get ten hours of her services on this particular job before you pay another dime.

She needs to detail out the expenses—which you agree upon beforehand—and she will give you a detailed accounting of the time she spent. Good attorneys detail their time to the minute. (There’s software for that now.)

An attorney you don’t want to hire again will give you a bill that says 10 hours @$50, and that’s all it says.

(Agents, by the way, don’t have to detail out how they work for you. They can lie and say they have when they have not.)

Most attorneys charge by the hour, although some attorneys will have flat fee services. Some do a hybrid of these things—a flat-fee service for, say, a minor contract review, and an hourly billing for any negotiations or something that isn’t boilerplate.

Find out before you hire.

You can minimize your costs as well.

Most people hire an attorney and then go to the attorney and ask what the attorney needs. The attorney then spends the first hour or two grilling the client on what the client wants before ever figuring out what they all need to get the job done.

The best thing you can do when you decide to hire an attorney is be organized. You need to figure out beforehand what, exactly, you’re hiring the attorney for.

You can’t just tell an attorney you want career management. Remember, an attorney does a specific job for you. That might be to negotiate a traditional book contract or to help you develop a contract.

If you only have a vague notion of what you need, that’s better than most folks who go into a law office. Write down the vague notion, plus have a list of questions ahead of time for the attorney.

During the meeting, write down the attorney’s answers. Don’t rely on your memory.

The more specific you can be, the less money the attorney will cost you. The attorney will know exactly what you want, rather than doing hours of work flailing about figuring out what you want.

Once you’ve settled on what you want the attorney to do, tell the attorney how much money you have budgeted for the job. The attorney will tell you if that’s too much or too little. If the attorney says the costs will be significantly more than what you can afford, find out if you can make do with less from the attorney or if there’s work you can do.

In the case of my long-ago divorce, I was broke. I made $8,000 that year, which is about $16,000 in today’s dollars. I managed to move to Oregon, start a new business, and pay off some of my ex-husband’s old debts. The best family law attorney in the State of Wisconsin charged me a $500 retainer ($1000 in today’s dollars), and I paid her right away, forgoing other important things to do so.

She managed to handle my entire divorce, long distance, over several months. She charged me another $1000 ($2000 in today’s dollars), but she knew I couldn’t pay it right away. So we worked out a payment plan, which I stuck to for the two years it took to pay her off.

Apparently, my payment plan with her was not unusual. She handled a lot of divorces from people who had meager incomes, and she worked with all of us to get the right payment.

She was honest with me in our first and only meeting about the cost of the divorce, and because she was one of the best attorneys in the state, she did her job in record time. Her estimate was $1,000 higher than what she actually ended up charging me.

She knew my budget and my situation. She also knew that I couldn’t afford a protracted divorce procedure. All of that factored into what we ended up doing in that particular case.

In the case of the attorney who reviewed a contract for me and Dean, the attorney read the contract (a hefty document), and then contacted us. He said that to explain the contract in great detail would take double what we had already paid. He was willing to do so, but didn’t think we needed it. His advice? Don’t sign the contract, and walk away from the company.

We did.

But we could have opted to pay the money and understand all parts of the contract. We could also have hired him to negotiate that contract and improve it.

We decided against it.

But the attorney presented us with a choice. He also acknowledged the budget and the possible avenues.

The decision on what to do, however, was ours—mine and Dean’s.

That’s how attorneys work.

Last week, someone asked what happens if you don’t like an attorney that you hired. It’s pretty simple: you never hire that attorney again.

If you dislike the job they’re doing in the middle of the job, you fire the attorney. Sedwick tells you how to part ways with an attorney in her piece. Nolo.com has a great long piece on how to fire your attorney. Here’s one excerpt:

It’s your absolute right to fire your lawyer at any time for any reason. Give it serious consideration if you’re convinced the lawyer is doing a bad job or if your relationship with the lawyer has become intolerable.

The Nolo piece has explanations of what to do in a variety of circumstances, and how to proceed if you believe you ended up with a bad apple.

If you end up with a bad agent, you probably signed a contract that entitles the agent to 15% of your earnings even after you fired them.

If you fire your attorney, they have to stop charging you immediately. You’re done paying them the moment you settle the final bill.

Think of 15% of every project the incompetent agent touched paid for years and compare it to the few hundred dollars for an attorney, and no more contact ever. Which do you prefer? I know which one I prefer.

I’m going to say it again: Lawyers are good people. They’re smart, ethical, and helpful. Stop being afraid of them. They can help you so much more than any agent can.

Become a real business person. Hire the right people for the right job. If you need someone to explain a legal document, hire an attorney. If you need to know how to set up your corporation, hire an attorney. If you need to get out of a bad contract, hire an attorney.

Be proactive. Take charge of your business and your career. Yes, you might be afraid of attorneys. Have you actually met one? Have you sat down with one? Or do you get all of your opinions about lawyers from Shakespeare and television?

Whether traditionally published, hybrid, or indie published, writers are all running a small business.

To run a business, you need access to a good attorney, and a good accountant. These are people you pay by the job. You might end up having a long term relationship with them—we’ve had our accountant for 20 years now—but you might not.

No one is going to take care of you. But you can hire good advice on a per-job basis. An attorney is one of those people who can give you good advice.

When you have the right people for the right job, you’ll be surprised at how much smoother your business will run.

One more blog post in the contracts/dealbreakers series. One more!!!! Am I happy about this? You better believe it.

I hope this series has helped you. If it has or if this post has been valuable to you, please leave a tip on the way out.

Thanks!

Click paypal.me/kristinekathrynrusch to go to PayPal.

Oh, and one more thing: PayPal has changed the way it  notifies me about payment, so I can’t always send an individual thank you now. Please know that I am grateful to you all for your support. Thanks again.

“Business Musings: How To Hire An Attorney,” copyright © 2016 by Kristine Kathryn Rusch. Image at the top of the blog copyright © 2016 by Canstock Photo/Enterlinedesign.




19 responses to “Business Musings: How To Hire A Lawyer (Contracts/Dealbreakers)”

  1. Candi Gomez says:

    Thanks to Kristine for permission to discuss this. 🙂

    I was thinking about lawyer fear, and how so many, not just writers, hold off going to a lawyer no matter how much it is in their interest.

    But you likely interact with lawyers several times a week without ever realizing it.

    I started thinking about this when reading the site “Ask a Manager”. There is a huge community there of workers, students, careerists, and professionals from all walks of life.

    Including lawyers.

    Yet you will never be able to pick them out from all the rest. Unless they identify themselves by username or word, you will never know who works for the government, for a Fortune 500 company, for a hospital, for a law office.

    They are just people.

    If you went on your favorite anonymous site, rather than one that shows information like Facebook, and asked for people to show their occupations, you would likely be surprised at how many you know, both casually and as close friends on that site.

    They are not sharks, and they are not vampires. They are not looking to bleed you dry or extract a pound of flesh.

    Yes, there are bad ones; that is true of any industry. There are the superstars, the golden children, the hard workers, the leeches, and the trolls. There are those who look to the future, and those who hold onto the ‘good old boys’ path.

    Lawyers are people, and you don’t need to be afraid of them.

    You can always fire a bad one. 🙂

    And you don’t need an agent.

  2. CS says:

    Hi! thanks for all of the responses. Since one of the recurring comments was “WTF are you thinking?”, here’s a few answers, plus a few more questions.

    To clarify a couple of things: I said that no major trad publishers take unsolicited manuscripts. I meant Big 5, but from my research, I’ve found just one non-boutique publisher that I think might publish my book (TOR). That’s a pretty small list.

    And obviously, some self-published children’s books get sold and read. But in general, the thing that is driving self-publishing is e-books, and while adults will happily snarf down a new romance, mystery, or sci-fi e-book series, I don’t think children do the same thing. A lot of upper-teen fiction gets read by adults (John Green, Suzanne Collins), but my book is aimed at 12-13 year olds. Also, my book is more on the ‘literary’ side of middle-grade fiction–it’s not a Rick Riordan-style commercial vehicle. I imagine that if it gets any traction, it would be through awards, reviews, bloggers, etc., most of which ignore anything self-published.

    Someone asked “what do I want?”. That’s a super question–since I have a day job, my number-one priority isn’t selling my book in a way that will put food on the table for my family. Right now it’s somewhere between a hobby and a second job. I can see myself ending up being a full-time writer if things work out, but I can also see myself writing one book a year and keeping my day job. And so yes–part of what I like about trad publishing is the validation, exposure, fame, fortune, groupies, White House invitations, etc. I suppose you can tell me I’m wrong for having those priorities if you want. But I’m definitely not alone.

    I appreciate Kris’s blog, because I want to make smart(er) business decisions. She’s certainly convinced me that there are a lot of writers who think they’re making smart, business-focused decisions, and in fact are doing just the opposite. It’s certainly possible that I’m in that group (ask me in ten years, I guess). But there are a fair number of assumptions in the arguments presented here that aren’t necessarily true for all writers. I happen to be drawn to the idea of understanding the contract I sign when I sell rights to my book. But not nearly as much as Kris is, and at the same time much, much more than a lot of writers. Are they all wrong? Do they all end up unhappy with the outcome?

    For whatever it’s worth–if you really want to convince a set of people that agents are bad, that they need to take more ownership of their business decisions, etc., I think it would be more effective to make it clear exactly who that set of people is. Not everyone is like Kris (or even like Kris was when she was starting out). Not everyone wants to be, or ought to be. Acknowledging that people with a different set of priorities should do something different will make the argument stronger for the people who, once they really think about it, conclude that they do prioritize the things that Kris espouses.

    Thanks for the input and insight!

    • Thanks for the calm response, CS, as you were inundated with replies.

      All traditional publishers take unagented submissions, CS, and by from unagented writers. ALL of them. They just don’t advertise it, because they no longer have slush readers, so they’re farming out the slush to agents. That’s it. Go around the agent. Again, I’m not going to explain how any more because I do not believe in helping writers tie up their rights for decades. In that case, as I said in the piece, please find someone else to help with that.

      If a publisher wants a book, they will find a way to buy it. You’d be surprised how many published writers in 2016 do NOT have agents, and did NOT have an agent when they sold the book–recently.

      But do hire an attorney to vet your contract.

      • CS says:

        That’s an interesting thought. When you say ‘unagented’ do you mean unagented and unpublished? I’m sure that it’s possible for established writers to get books sold without agents. I guess that I could find some chances at conferences to pitch directly to editors, but that seems like a relative long shot.

        I have listened to your warnings about agents. I’m not starry-eyed about hiring one–it’s mainly that since I’m looking to tie up the rights to my book for decades with a major publisher, they seem kind of essential. You’ve given me some thoughts, though, so when the time comes I’ll at least try to work directly with editors. (And yes, I’ll hire an attorney to look at the contracts)

        • I mean unagented and unpublished. I personally know over a dozen writers who sold their first novels traditionally without an agent. It’s possible. I have no idea why anyone would want to sign with a traditional publisher right now for novels. I really don’t. But you can do so with a good book, and persistence—and no agent.

    • Sally says:

      Tor is a division of Macmillan. So it’s most certainly Big 5.

      And by age 12, I was definitely buying my own books. I’d take my allowance money into the bookstore in the mall, or to the rack at the grocery store, or if I (wonder of wonders!) got to go to the big city’s glorious sci-fi/comic store.

      I would still be paying Mom back on advances on allowance if I’d had Amazon. One book leads to several more there, clicky clicky, search for exactly what you want.

      Bloggers most certainly do cover self-published work; there are lots of blogs that do nothing but. See
      http://indiespecfic.blogspot.com/ The Speculative Fiction Showcase (first example I came across). Then there are “blog tours” when it’s time for release and promotion.

      Don’t discount all the small presses. They’ll get you into bookstores, libraries, and reviews. I have a friend who writes severely literary fiction, both naturalistic and fantastical, and she had 3 novels published by a small press, with decent distribution and reviews in the big places like Publisher’s Weekly. She had no agent at the beginning, just submitted till the rejection letters turned into acceptance. Her next book is with a Big 5.

      (Dang, I have a LOT of writer friends.)

    • Teri B says:

      “…and while adults will happily snarf down a new romance, mystery, or sci-fi e-book series, I don’t think children do the same thing.”

      CS, kids that age choose their own books. They are very opinionated by that age and are already forming strong taste preferences. The ones I know have their own accounts, with their parents permission, to buy books and they like reading on their devices just as well as older people do. They love finding their own books.

      “And so yes–part of what I like about trad publishing is the validation, exposure, fame, fortune, groupies, White House invitations, etc. I suppose you can tell me I’m wrong for having those priorities if you want. But I’m definitely not alone.”

      It isn’t wrong to make those thing priorities, and Kris has never said that it is. It’s just that those priorities are not compatible with ‘making better business decisions’, unfortunately. The way trad publishing presently operates.
      The amount a trad mid-lister makes off their one book a year barely matches what most people who have a hobby, and choose to monetize it, make. If one spent the same amount of time making wooden children’s toys or stained glass windows and selling them, for example. Nothing wrong with that path and that choice. It just isn’t the path of a career writer, which is who Kris is, and who she writes the blog for.

  3. If you will forgive me for chiming in, Kris. And if anything here rubs you the wrong way, feel free to delete.

    “But for your contracts and copyrights, you want an intellectual property attorney or a literary lawyer. If you’re dealing with movie companies, you’ll want someone who has successfully negotiated with studio lawyers.”

    In my experience, in the studio/movie business you will run across lawyers who call themselves ‘entertainment lawyers’. I have a low opinion of such, personally, having seen the general quality of contracts written in that business. (I actually clerked with the entertainment law group of a large law firm while in law school)

    “Realize that even attorneys with specialties have limitations. Make sure, for example, that the intellectual property attorney you hire specializes in copyright, not trademark. Unless you’re trying to figure out if you should trademark your super-dooper main character from your mystery novel. Then you might want someone who specializes in trademarks.”

    This is probably the only place where I disagree with your wonderful blog piece. I practice in the area of copyright and trademark law. It is pretty common for good copyright attorneys to have a working knowledge of trademark and vice versa. And I think that understanding trademark law is increasingly important in understanding how an author should do branding of their works and to navigate the issues around others’ works that include trademark issues like tie-in work.

    A couple of misc points.

    First, when first meeting an attorney, get up front whether or not the initial consultation is free or billed. I don’t bill my first meeting but other attorneys might. Get clear at the end of the meeting whether or not you have hired the attorney. I’ve recently had a spate of cases where my client had spoken to another attorney before hiring me, and later got a bill from that attorney (whether the client’s fault or from the attorney’s pique at not being hired, I can only guess).

    Second, the legal services business is changing a lot currently. The big law firm model is dying a messy death. Small firms or sole proprietors are good choices as they have lower overhead and have the flexibility in billing arrangements that associates in big firms don’t have.

    Lastly, one of my pet peeves. Client gives me a contract and says “Just tell me whether I should sign it or not.” I don’t do that except in exceptional cases like the one you refer to. I don’t think its my job to make business decisions for the client. Its my job to give the client the information needed to make a good decision.

    • This is excellent, Robin. Thank you. I certainly don’t pretend to know everything there is to know about this stuff, so I greatly appreciate hearing from someone with actual expertise here.

      And yeah on the entertainment lawyer. As with anything, you have to be really careful. I hope writers research well. Because I can’t cover everything here. But as a cautionary tale, here’s my experience with an entertainment lawyer from a few years ago: http://kriswrites.com/2013/06/05/the-business-rusch-good-help/

      I didn’t hire the guy, clearly. I ran into him, and jeez, what an idiot. Idiots abound in every profession. Or as my husband, who went to law school says, “What do you call someone who graduated from law school with a C- average? A lawyer.”

      Even saying that, though, I’d rather have a mediocre lawyer than a “good” agent. 🙂

      So please, everyone, read Robin’s post. It’s spot-on.

    • Darryl says:

      My background is as a lawyer in Australia with my own small boutique practice. I agree with everything you say in your post. I have the same low opinion of many so-called entertainment lawyers. But even the very worst of them would be preferable to an agent. Authors should just follow Kris’s good advice on selecting a good lawyer to act for them, As for agents? My advice is to just steer clear of them. I don’t believe they have anything to offer in this brave new publishing world. Likewise, I agree with Kris that the terms of traditional publishing contracts are becoming even more exploitative of authors, and are to be avoided except in the case of an elite few. If you are a celebrity offered a huge advance for a ghost-written book of dubious merit, you should probably grab the opportunity with both hands. Though you should still retain a lawyer to advise on the contract, if only to make sure that you can keep the money!

  4. CS says:

    Hi! Thanks for the series, I’ve enjoyed it a lot, and learned quite a bit.

    I’m writing a science-fiction novel aimed at 12-year-olds, and I’ve been planning to look for an agent when it’s finished, for several reasons:

    Working with any of the major traditional publishers requires an agent because they won’t accept unsolicited manuscripts that don’t come from agents
    Self-publishing children’s books doesn’t work, because kids don’t buy their own books, and instead get them through adults or libraries.
    Smaller publishing houses (that do accept unsolicited mss directly from writers) don’t have the marketing and sales resources to sell books effectively through libraries and bookstores and/or won’t offer good advances
    Having an agent who a) can help identify what needs to be improved about the book before sending to editors and b) can send to editors at the major houses would have a good chance of being worth 15%.

    I’m wondering if anyone has rebuttals for these arguments. I’d be happy to be persuaded that I’m wrong!

    The last two arguments are definitely the flimsiest. With argument #3 I guess I’m mainly worried about publishing through some near-vanity place that just sort of prints my book and gets it into a few bookstores without putting any real effort into it. If I could find a good, medium-sized publisher that knows what they’re doing and accepts unsolicited mss directly, that sounds like a good option. But while I’m sure there are some of those, I don’t think there are a whole lot.

    And as far as the potential value of an agent (argument #4) goes: I’m an unpublished writer. I obviously don’t have anywhere near the writing experience or the publishing-biz experience of someone who’s been doing this for a while. I think I can write a decent story, and I wouldn’t mind getting my hands dirty with contracts, negotiations, etc. But I do see value in hiring someone who has more experience with both of these things to help me.

    • Please go to the comments two weeks ago that I linked to in the piece and see the attorney’s rebuttal to the agent who makes the same points. As for publishers don’t buy from writers who handle their own work, that’s a myth. You just have to learn how to submit by yourself, and that takes time. I’m not teaching that, because, as I have repeatedly said in this series, I think going to traditional publishing for books right now is a huge mistake, given the contracts and publishing practices.

      That includes children’s books. I know many children’s writers who self-publish. Many visit this blog. I hope they see this and answer you.

      For everyone else, this just shows how deep the myths are. I repeatedly tell writers that agents are unnecessary, agents often BREAK THE LAW with their business practices, agents do not fulfill their fiduciary duties, and writers PERSIST in wanting agents. Because of the myths. I can’t shout any louder, people. DO NOT HIRE AGENTS.

    • Suzan Harden says:

      @CS

      I’m going to cut to the chase, which means I may not sound as polite as our hostess due to my bout as a recovering attorney. But reading through your list of reasons, here are some follow-up questions:

      What is it you really want out of publishing your book?

      Do you want fame and fortune out of one book? You only mention you’re writing one book.

      Why don’t you trust your own artistic/storytelling sense?

      Why do you feel you need validation from a third party instead of a reader?

      You’ve said you want a deal with a traditional publisher, but you also said you read Kris’s entire series. Do you think she’s lying about how bad things are right now? Would you think I’m lying if I told you the same thing? (I can’t discuss anything I’ve seen due to attorney-client confidentiality, but like Kris’s friends, I can nod. smile)

      Why do you believe a self-publisher can’t sell to libraries? I have.

      Why do you believe you cannot sell to bookstores if you self-publish? (There’s a bookstore in London, UK, that’s taking pre-orders for the trade paperback edition one of my novels. The proof copy is sitting next to me as I type this comment. And no, I DID NOT contact this store personally, nor did any agent or other entity on my behalf.)

      Why aren’t you willing to sell to local schools yourself?

      Why are you limiting your children’s book to only schools and libraries?

      Why are you willing to give other parties 91% of your profits even though you will be required to do all of the marketing and editing yourself?

      Until you can begin to answer some of these questions, I would suggest you hold off on doing anything other than writing. Newbie writers (and we ALL start out this way) are unfortunately easy prey for unscrupulous people out of naivete. And I don’t mean just vanity publishers.

      The publishing industry has changed RADICALLY over the last ten years. Please make sure you have up-to-date information.

    • Sally says:

      CS: Agents know bupkis about story development. If you want to know how to improve your story, first get several smart and honest friends to beta-read it. I currently beta-read for two authors, one indie and one Big Pub, and my name’s appeared in the acknowledgements of at least half a dozen books. For REAL improvement, hire a freelance editor. It’ll take some research, but there are a lot of good ones. They charge a flat fee and have no legal rights to your book.

      The indie author I read for publishes YA. I see a ton of kids’ books self-published, often in series, so they must be selling. This includes everything from YA down to picture books with one sentence per page (My favorite is the “Little Hoo” series by Brenda Ponnay). A lot of kids have their own Kindles, or share one with Mom and Dad. Amazon, B&N, and others can print copies of your book on demand at no cost to you (unlike vanity presses) that can be ordered by parents and libraries. I know for a fact that the University of Colorado library replaced some of its old stolen books with updated Amazon POD versions.

      I’ve probably given you more up to date info here for free than an agent would for 15%

    • Chris says:

      Let me take these four arguments and answer them from personal experience.
      1. Traditional publishers only take agented submissions. Not true. I have a dozen-plus traditionally published novels. Not a one was sent through an agent. Some of them got to editors via convoluted paths, and some were simply submitted to the right person at the right time. And a lot of other books were submitted both ways and not sold because they weren’t in the hands of the exact right person at the exact right time.
      2. Children’s book have to be traditionally published. Why are children’s books any different than any other book? Just because an adult purchases a book for a child, or a library purchases a book for their collection, that doesn’t make a children’s book any different from a book purchases for themselves or as a gift for another adult. I truly don’t understand why you think this matters. And BTW I have a friend who is doing just fine with his self-published children’s books.
      3. Smaller publishing houses don’t market or pay good advances. The truth is NO publishers are paying “good” advances, and darn few are putting any money into marketing-unless you’re one of the tiny cadre of “name” authors, and sometimes not even then. I talk to a lot of writers in my field, and no one is getting even decent advances or marketing, even when they’re with one of the so-called Big Five. In fact, many of them are deserting that ship for smaller publishers or their own companies.
      4. Agents can fix your book and get it to the major houses. Agents are not editors, and they don’t necessarily know how to “improve” your book. Sorry if that sounds harsh, but my experience is that an agent will tell you how to make your story more attractive to a specific market segment – even if that is not what you want to write – at a specific moment. “Write this.” they say, and a couple months later when you have written “this” they will read it and tell you the market has shifted and you need to write “that.” Lather. Rinse. Repeat. And if you persist in writing “not this” and “not that” they simply don’t submit it to anyone. If they do eventually submit it’s to the small handful of editors they know and if it doesn’t sell they give up and tell you the book is unsalable.

      Does that offer the rebuttals you wanted?

      • Chong Go says:

        Agents can fix your book
        I would add that when agents do this, they try to shoehorn in whatever trend is selling books today. That means it was first in the pipelineat least 18-24 months ago, and there are now that many other books ahead of you trying to catch that trend. So the advice, “Ooh! Add a vampire to your story!” well, not so great. By the time your book comes out, vampires will be old stuff, and the new trend will be something else. To say nothing of having destroyed the rhythm of your original story. And remember, this is an agent, who will only be submitting it to publishers. The publishers themselves may already be tired of vampire/time traveling romance/garden gnome stories by this point, and so you get rejected time after time. Whereas your original story might have been a breath of fresh air to them.

        However, due to the recent, extremely bad contract terms, both from agencies and publishers, you might have more fun and less stress throwing burning hundred dollar bills out your car window. There’s a reason lots of indie authors are turning down trad pub contracts with, “Sorry, I just can’t afford to take that kind of pay cut.”

    • gordonrhorne says:

      Hi CS,

      I think your statement that children don’t buy their own books is becoming less true, especially for 12 year olds. More and more people in my circle of acquaintances are setting up allowance accounts at etailers for their children. The children make their own purchases within a preset budget. More etailers are making this possible because it means money. Money, money, money.

    • Gnondpom says:

      Hi CS,

      I think there are ways to build up an audience amongst children even for indie books – if you’re a bit inventive you can even find ways that wouldn’t work with adults.

      Jefferson Smith is a YA author who wrote an interesting blog post on how he offered to visit a school to present his work as a writer, and got incredibly good response from the teachers and the kids. In the process he became somewhat of a local celebrity and sold a fair amount of physical copies of his book directly.

      You can find his blog post here:
      http://creativityhacker.ca/2015/05/13/how-to-sell-50-copies-of-your-printed-book-in-one-week-repeatably/

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