Business Musings: How To Hire A Lawyer (Contracts/Dealbreakers)
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.
- Attorneys are regulated. Agents aren’t.
- Attorneys, as officers of the court, have to follow rules of behavior. Agents don’t.
- Attorneys are licensed. Agents aren’t.
- Attorneys charge by the job (hourly or flat fee). Agents charge a percentage for the lifetime of the project.
- Attorneys have years of training in the law. Agents have none.
- 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.
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.
…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.
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 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.
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“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.