|The Law Offices of Scott E. Schwimer Online
Do you know a good lawyer?
When I remodeled my home, I employed a contractor who often said to his workers, "There never seems to be enough time to do it right, but there is always enough time to do it right the second time!" Which brings us to the creative person and the entertainment attorney. When a new person comes to me, nine times out of 10 they have been coaxed to see me by their agent or manager, and it is with great trepidation that they do so. They seldom think they need an attorney, and their bottom line is how much one will cost them. Rarely does a writer have the foresight to imagine what it will ultimately cost them if instead, he secures the dubious talent of his cousinís uncleís brother (who happens to be a workers' compensation lawyer) to take a quick look at his contract.
Attorneys are like doctors -- they specialize in various areas and possess all kinds of talents. All specialists are certainly qualified in what they do, but a patient would be bonkers to enlist a heart surgeon for the delicate procedures of brain surgery. So the first step in protecting yourself in the industry is to do away with your cousinís uncleís brother and find yourself someone who can look beyond what is in a contract and what isnít in a contract.
Finding a customized attorney is as difficult as finding the right agent. It takes research (often word of mouth from other writers), phone calls and interviews. As with an agent, an attorneyís personality and a rapport are crucial elements. In your discussion with a prospective attorney, questions should be divided into two categories: 1. The issues regarding your situation and career. 2. Fees, billing and the attorneyís policy on returning calls.
Let's start with money. Donít be shy -- it's your money! Ask the attorney up front how he or she charges. Donít be turned off by the hourly rate until you dig further and uncover any hidden costs that may build your fee. For instance, one attorney may charge a flat fee of $400 an hour, while another charges
$200 an hour. However, the latter may also charge in increments of 15-minute blocks, even if you only spoke with him or her for a few minutes. There may also be charges for phone calls and $1 per page for faxes, photocopying, word processing and so forth, until very soon the second lawyer's charges greatly exceed those of the first. Do your homework and ask up front so there are no surprises.
I personally have developed an "open door policy." I know how I feel when my doctor fires off an extended monologue of information and prescriptions, each with its own set of details. I retain about half and am too intimidated to call back and ask for further explanations. I donít want my clients to go through that, so I offer phone conversations of 10 minutes or less so that my clients will feel comfortable in calling and asking questions that are important to them. I want them to focus on the topic at hand, not the cost of the call. Of course, the client that hung up after nine minutes, then called right back for another free 10-minute session, found the door closing swiftly!
Some attorneys charge a percentage (usually 5 percent) of your gross income. As a writer, I view this arrangement as a mistake in most circumstances. As an attorney, it can be a windfall. I personally feel that, if you believe in yourself and you intend to become a successful writer, then you should not give away 5 percent of your income, derived from all sources. For example, let's say you enter into a deal for $500,000 or five deals for $100,000 (certainly not an unreasonable goal), you will wind up paying your attorney $25,000 for doing, on the average, about $10,000 worth of work. Of course, this number becomes even more obscene as your quote increases, and it will be your "hired gun" by your side.
Often a naive writer will jump at the opportunity to give a percentage because he or she cannot afford to hand over a retainer of a few thousand dollars. Well, folks, it's like our parents always told us about those bad kids on the playground: the first one's free, then you pay, pay, pay. In my opinion, it's better for you to borrow from your friends and family than to give away a portion of your career, even if it looks tempting at the beginning.
Of course, there are exceptions to this rule. I recently converted one of my clients --on his suggestion -- to a percentage because he felt that, under this arrangement, he could constantly consult with me and not worry about fees. If you want an attorney to work in more of a managerial capacity, this may be a better option.
Do not be seduced by the glitter of a large firm. There are many wonderful attorneys who work for large firms; however, the opposite is also true. There are tremendously competent attorneys who work for themselves or in small firms. It is often the practice of managing partners in large firms to pressure their attorneys to bill. In fact, attorneys are often reviewed on their billing records and perhaps not much more. Big firms have big offices with big rents, and you may be the one who is paying for all that black granite and modern art. Donít be impressed -- it will look even better in your house!
A client of mine who recently hit it big was told by a friend that he should consider going with another attorney from a large firm because there is access to other kinds of lawyers, like those specializing in tax and real estate. I had just completed a deal for him that would have cost him $250,000 in legal fees if he were charged on a percentage basis. My advice to him was to hire a tax attorney for approximately $10,000, add that to the $10,000 or so he had incurred with my services, and then enjoy the extra $230,000 he had just saved by not giving away 5 percent of his deal to a large firm. He stayed with me. I was thrilled, then cried and waved goodbye to the money I could have had.
Be sure to inquire about the type of deal you are doing. If it applies, is the attorney as strong in film as he or she is in television? Does the attorney feel confident handling the situation, and will he or she pass it on to another attorney if it is out of their league?
Ask the attorney what kind of "business personality" he or she has. Are they screamers? Do they hang up the phone? (Youíd be surprised at how many do and will brag about it.) What is their commitment to returning your phone calls? It's bad enough that your agent doesnít call you back, but when you're paying for it, you deserve a call returned within 24 hours. If your prospective attorney canít commit to that up front, get yourself another.
Donít forget to ask your attorney whether he or she carries professional liability insurance, and how much. Pursuant to the California Bar, an attorney must advise his client whether he does, in fact, carry such insurance. If, God forbid, a problem ever arises from a mistake initiated by your attorney, you will at least have recourse. Insurance is very expensive to maintain, especially for those practicing in the entertainment industry, so a lot of attorneys don't bother. If they canít be bothered, neither should you -- get yourself another attorney.
Finally, make sure your attorney sends you a retainer agreement outlining in writing all the terms you have discussed. Most states require such an agreement, but it often gets lost in the cracks. If there is ever a controversy, you should be able to refer to your agreement of understanding with the person who is on your side. Avoid a potential conflict and get it in writing before you begin your relationship.
Great, you've hired yourself an attorney. Now what?
Take advantage of the many services and resources your attorney can provide. Although clients initially hire me to look at a specific contract or negotiate a particular deal, I easily spend half of my time performing other services for them. Most of my clients, prior to enlisting me, entered into various deals without consulting an attorney. Accordingly, I spend a lot of time getting them out of deals that have soured. I am employed to negotiate settlements, write cease-and-desist letters, copyright manuscripts and arrange introductions to agents, managers, accountants, publicists, tax specialists, brokers, etc. A good entertainment attorney could be your side door to the community, if you encourage them. As my mother always said, 'If you donít ask, you donít get."
In order to maximize results as well as minimize your costs (if you are not being billed on a percentage basis), it is noteworthy that a lawyer, like an agent, may submit a script to a potential buyer or producer. In fact, my clients often donít have agents, and the way they get around the catch-22 of "no unsolicited submissions" is for me to submit on their behalf. I encourage my clients to give me a list of "who and where" their script should be submitted, because after all, it is indeed the writer who should know best which company would respond to that project. I am seldom asked to submit the next Hand That Rocks the Cradle to Merchant-Ivory Productions.
If you donít have an agent, your attorney should be able to make an introduction. It may not pan out for the project you are currently pursuing, but it is a start. If you are lucky enough to snag an agent for your project, the agent and attorney should be able to work well together. Even though you will now be giving up even more of your hard-earned money, it is beneficial to your career to engage both as a team. Of course, the depth and breadth of submissions should be a team decision, since it will be costing you every step of the way.
If you are lucky enough to get to the contract stage, your attorney can continue to make the process most productive for you. I always ask my clients to read their own contracts first and consult me with their "wish list" of issues, as well as the items that really bother them. An interactive client is a client who will ultimately be happier in the long run when the contract provisions start taking place. Most creative people donít want to be bothered with the minutiae of legalese, and quite frankly, I canít blame them. However, if something doesnít make sense to you, ask your lawyer to explain it in plain English. If you donít understand, ask again. It's your money being spent, so you are entitled to a clear answer. If you donít get one, insist on one or get a new attorney.
Try to send all of your comments and issues to your attorney via fax or e-mail. They will be addressed more thoroughly than a phone call, and it will be less expensive than occupying an attorneyís time on the phone. You can expect several months from the time a contract is first sent out until it is actually signed by all parties. This fact seems to shock first-timers. There are usually several drafts that go back and forth, and it is important for the client to patiently allow this course to unfold on its own. Occasionally I have a client who is so desperate for the money that he or she is willing to sign anything. Those are the ones who come back to me later with great regrets.
The deal points of each negotiation are very different, even though there are certain parameters the industry follows. Of course, the more previous sales you have made, the better the terms you will receive. For instance, even though it is a struggle, I can usually obtain a percentage of the net profits for my clients. However, it is the definition or version of the "net profits", that is fought for. Stronger clients receive stronger versions -- if the attorney has the strength and experience to ask for it.
Also, there are various perks that savvy lawyers will ask for, such as free videocassettes and invitations to world premieres and film festivals. An extremely important deal point to ask for is a "no quote" deal; that is, if you sell another project to another company, you donít want that company to be able to call the first and learn you were paid. As your sales increase, your fee will undoubtedly do so as well, and should not be held hostage to a deal you may have done just to get into the game. Again, if you donít ask, you donít get.
Your attorney is your friend. Jay Leno is first to trash attorneys on network TV. However, I am quite certain that his attorney is the first person he calls when there is a deal or a problem to resolve. Choose your attorney the same way you would a friend. Look for qualities you like. They are ambassadors for your career. If you feel that you are an aggressive person who needs that kind of representation, look for that trait in an attorney. If you are a gentle, reserved person and would like to have a representative who embodies those traits as well, then look for that kind of person. And like friendships, if it doesnít work out, find a new friend who has more in common with you. It might have been "a dark and stormy night" when you started this process, but soon you will be sharing a place in the sun with someone who will protect your interests and serve your every need.