Perhaps your publishing business is expanding to the point where you are considering incorporating and bringing in investors. Maybe your collaboration agreement needs a legal touch. Or, the worst has happened and someone is suing you for infringement, defamation, or some other wrongful act.
Many people have an unfavorable view of attorneys, which is not entirely fair. Yes, some attorneys are bullies, but they would have been bullies no matter what their profession.
Most lawyers are bookish types who try to look after their clients. If you avoid the bullies, you’ll find attorneys are valuable members of your publishing team.
There are two general types of attorneys.
Business attorneys assist you on matters such as setting up your business, obtaining EINs and resale certificates, drafting licenses and agreements, reviewing manuscripts for potential legal issues, and providing preventive counseling. They rarely step into the courtroom. Like me, their goal is to keep their clients out of court. However, if litigation arises, a business attorney assists clients with the preliminary negotiations, and, if unsuccessful, helps find the right litigator.
Litigation attorneys are experts in the process of litigation, including handling court filings, taking depositions, and making court appearances. A litigator would defend you if you are served with a complaint alleging infringement, defamation, breach of contract, or violation of law. Or a litigator would help you assert claims against someone infringing on your work, defaming you, or breaching an agreement.
I advise against hiring a litigator for general business advice. Typically, their orientation is too confrontational.
How to Find the Right Attorney
Start by asking people you know for referrals, including local writing clubs or self-publishing organizations. Many communities have “lawyers for the arts” groups, which offer discounted or free services to artists. Contact public-interest groups , such as organizations promoting fair use or First Amendment rights. You could also contact your local bar association. They often have referral services.
Don’t be surprised if you speak to one attorney, who refers you to another attorney, who refers you to yet another attorney. These attorneys are trying to help you find the right person with the right experience and the bandwidth to take you on as a client. Don’t assume they are trying to get rid of you.
What to Look for in an Attorney
Experience, especially in litigation. Nothing is more valuable than an attorney who has handled similar matters for a significant period—ten years at least. An experienced attorney will have a higher hourly rate, but will be able to assess and advise quickly. You are more likely to achieve a better result faster and cheaper.
Responsiveness. This is difficult to measure in first impressions, but try to gauge how quickly the attorney will respond to calls and emails. Ask the attorney about response time.
Chemistry. You must be candid with your attorney, particularly about your mistakes. Are you comfortable talking to this person? Is the attorney a good listener, or dismissive, patronizing, or distracted? Avoid any lawyer who doesn’t let you finish your sentences.
Style. Does the attorney seem creative and oriented toward problem-solving? Or a hard-charging bully? Trust me—don’t hire a bully. Even if you are really angry or scared, a bully wastes time and money. You will be better off with someone smart, who is fair but tough. Look for an iron fist in a velvet glove.
Warning signs. As I said, 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.” I am suspicious of any attorney who fails to warn clients that litigation is uncertain and expensive in terms of dollars, stress, and distractions. Avoid attorneys with too broad a range of practice areas; that’s often a sign of an attorney who will do anything to pay the rent. Check your state bar for any disciplinary actions against the attorney.
Up-front payment. It’s fair for the attorney to ask for a reasonable retainer, depending on the complexity of the matter. If the payment is high, consider two possibilities. First, the lawyer wants you to understand the expected cost of the matter. You may be gung-ho to sue your former writing partner. By asking for a $20,000 up-front payment or higher, the lawyer is making sure you understand the potential cost of revenge.
Alternatively, the lawyer may not want to handle the matter and hopes you will go away. Ask.
How to Manage Legal Fees
Organize your information, documents, and thoughts. Be prepared to present the problem, and not only your ideas of the solution. I find it difficult to understand a matter when a client calls me and tells me exactly what he wants me to do without explaining the background and reasons. Often, the proposed solution is off base, and it takes a while to back up the discussion to the underlying problem. If you do not know what information is relevant, err on the side of providing too much. It is faster for the attorney to skim through all the details in order to pick out what’s relevant than to identify what’s missing and have you fill in the gaps.
Schedule an initial consultation by phone or in person. Most lawyers will discuss a matter for 15 to 30 minutes without charge or for a flat fee.
Tell the attorney what other parties are involved or potentially involved. If the attorney has a conflict of interest, cut the conversation short.
Be honest. The attorney cannot help you unless all the facts are on the table, especially the embarrassing ones.
Ask for an estimate. The attorney should tell you hourly billing rates and whether a flat fee or contingency fee is possible. Discuss your budget. The attorney should let you know whether your budget is reasonable and workable.
Understand what risks you are willing to take. Your attorney could draft a 40-page airtight freelance agreement for your cover designer. But is that really appropriate for a $500 contract? Don’t pay for a ten-foot cement wall when a picket fence will do.
Engage an attorney with relevant experience. Even if the hourly rate is higher, the cost is likely to be less in the end. And an experienced lawyer will get you through your legal project quickly, so you can get back to writing your next book.SHARE THIS