10.24.2006

Lawyers may be fungus amongus but they are not fungible

Once a contract is presented to an agent for my signature (which in my case will be an extremely large contract), what's the 'rule of thumb' re: hiring a lawyer to look over the contract?

I understand 'it couldn't hurt'. I'm just curious how much of the fine print an agent is expected to be familiar with, in a (relatively) precise, legal way.

I'm familiar with the email and phone number of my contracts review specialist and I send all my contracts to her.

NOTHING is more stupid in a contract negotiation than involving a lawyer who doesn't specialize in publishing law. I run into this when my soon-to-be clients have "a lawyer" look at the offer for representation. It's always expensive; it's alway brutal; I never change a thing.

If my authors want a lawyer to look at a deal, its fine with me. I always tell them if they fuck it up by going to a real estate lawyer or a criminal lawyer or their son who's a lawyer, there will be a visit from the Lawyer of Unintended Consequences.

I always give my contract review specialist's notes to my clients if they ask. They don't have to sign anything they don't agree to. What they can't do is roar in when all is said and done and ask for changes that aren't going to happen cause they don't know what they are doing.

16 comments:

desert snarkling said...

I used a contract lawyer (with publishing experience) when I was unagented and negotiating a contract on my own.

Once I signed on with an agent, I assumed I could trust her to have the expertise and experience to look at the contract and know what clauses were problematic--that was a large part of what I was working with an agent for in the first place.

M. G. Tarquini said...

Do you mind elaborating on what a contract review specialist is? Can your client use the same one? I realize most lawyers would cringe at that question.

Thanks so much.

Dave said...

May I say that when I already had a lawyer on retainer helping me as executor on my relative's estate, I had to run a company I was chief stockholder in through bankruptcy (when it rains it pours, the owner died of cancer and left business debts, funny thing about death). The Estate lawyer turned me over to a bankruptcy attorney because he knew the law.
Ask your regular attorney to recommend a good contracts attorney with publishing experience. If you don't know a lawyer, call up the bar association.

Dave said...

uh, www.fungusamongus.com sells mushrooms and truffles.

Dave Kuzminski said...

For a moment there, I thought you were going to talk about PA's lawyer who I understand is a real estate lawyer. His performance representing PA at one arbitration was inadequate to deal with just one writer pursuing his case on his own without any lawyer by his side. Suffice it to say the writer won.

Sometimes I like stories with happy endings, especially when they're true.

mamalujo1 said...

HEY! I just happen to be a real estate lawyer, and I'm, well, uh...

Never mind. As usual MS is exactly right.

Maya said...

I had my attorney vet my contract with my agent.

My attorney, a very smart lady, was the one who told me to trust my agent on contracts with publishers because it is a very specialized area.

Following her advice, I've trusted my agent AND her contract specialist. They're very, very good. When I've asked questions, they've had answers.

My agent is also wonderful about explaining things I don't understand--like the difference between "foreign sales" and "non-English sales."

When a writer says you don't need an agent, be assured you are talking to someone who doesn't know what he's talking about. A twelve-page legal document in 9 pt. font will make a believer of you.

Mark said...

My late father always said that title phrase you used.

Ms. Librarian said...

I think the most useful thing I did when I got my first book contract is to contact an attorney who specialized in publishing law. It was expensive, but she caught several things that I would not have known to look for. Worth every penny!

J. F. Constantine said...

Lots of good posts above. I think maya is on the money. I'm a paralegal for 25 years (my day job **sigh**), and I can tell you that (as usual) Miss Snark is right. If the lawyer isn't specialized in Intellecutal Property law and knows PUBLISHING, they may raise issues that are not truly issues within this business. I read my own contracts, because I understand legalese and know a bit about what can and cannot be done in publishing. I trust my agent, and I have the book, Kirsch's Guide to the Book Contract. I know that my agent also uses an attorney, so I have that coverage as well.

Tattieheid said...

If you can't trust your agent why have one?

If you feel the need to have a lawyer go over any contract you need to use a specialist in that area of law. Anybody else will just cost you money and posssibly the best book deal you have ever had in your life. A specialist is not cheap.

A good agent will have accessed a specialist in publishing law and will already know more than the average lawyer about that particular field.

Your agent relies on your ability to write good books and their own ability to sell those to a publisher otherwise they don't get paid. The better the deal they get for you the better the deal they are making for themselves. At this point your best interests match theirs.

If you don't trust your agent at this point go away and shoot yourself in the font!

Anonymous said...

Good sense advice, thanks for sharing!

Brady Westwater said...

When I was in real estate, we had what was called the ten percent lawyers premium when it came to negotiating real estate contracts. Any buyer who got their non-real estate lawyer involved in the contract would usually end up paying ten per cent more for the property than they would have otherwise. This was because the seller would get so frustrated by unreasonable demands they would not want to deal with that person and it would take the higher price to get them to agree to go into escrow.

Anonymous said...

Hey, aren't I paying 15% for the agent's expertise? I assume you well known agents who've traveled the block a few times can handle all this nicely for me.

However, when you get an iffy agent all bets are off. For instance, How about a "new" agent whose background is as a civil litigation lawyer? I also read of an agent whose bioincludes "former manager of a "XYZ" bookstore." Unpackign boxes for a chain qialfies you to present my epic? There there's the "she loves to read and wants to sell your book!" agent making the rounds. So does my Mama....

Get a good agent and your worries lessen considerably. Get a crappy agent(or a poseur) and you're winging it.

REPEAT AFTER AGENT QUERY: No agent is better than a bad agent.

C.E. Petit said...

Just as an aside, to show how goofy practicing law can be:

According to the bar authorities, I am not a specialist in publishing and intellectual property law. My practice is concentrated in those areas, but I'm not a specialist... because, according to the constipated old white men who wrote these rules in the 1970s, "specialist" implies extra education and some kind of certification. Thus, since only one group of lawyers requires such (patent attorneys), it would deceive the public if lawyers called themselves "specialists."

The irony that the practice of law is even more specialized than the practice of medicine seems lost on the bar. After all, when is the last time you heard of an ENT guy who only works on the left side of the throat? Further, "specialist" no longer means what it used to, when many adults primarily see an "internal medicine" doctor (that used to be a rarified specialty), and just about every trade and profession proclaims specialties.

All of the above said, Her Stillettoness is right. Don't bring me commercial real estate transactions... and don't take your literary contracts to the guy who handled your neighbor's divorce or DWI.

Anonymous said...

I have a very reputable and knowledgable agent. She has a contract specialist. I love my agent. I do NOT like her contract specialist. He might be great for other authors, but not for me.

So I hired a literary attorney to go over my contracts. It has nothing to do with trusting my agent--I trust her implicitly to negotiate the best possible deals for me. It has to do with the fact that she is an agent, not a lawyer and sometimes, the wording of a contract can be very, very tricky.

Just because I go to a medical specialist doesn't meant I don't trust my general practioner.