Should clients prefer a non-specialist lawyer?

screenwritingVia Ken Adams and the wonderful world of Twitter, IP Draughts was alerted to this article:
The Business of Screenwriter: Get a damn good lawyer!

The article discusses the lack of foresight of a lawyer who drafted a screenwriting contract for the author in the 1980s. The contract provided for bonus payments for sequels in specified formats, but had failed to include generic language that would cover “direct to DVD” sequels – a format that didn’t exist when the contract was made. As a result of this omission, when a sequel was made in the 2000s, the author failed to secure two bonus payments, each of $150,000, to which he thought he was entitled.

The punchline (punch-paragraph?) of the article was as follows:

So when you sell your script and you get an agent and/or manager, and they talk to you about how you need to get a good entertainment attorney, you smile, and gently correct them:

“No, I want a damn good lawyer.”

The article seems to be suggesting that the lawyer who drafted the contract was too close to the entertainment industry as it existed in the 1980s, and followed convention rather than thinking carefully about what the contract should say, and future-proofing it against new technologies.

It should, of course, be possible to be a damn good lawyer and a good entertainment attorney. Any entertainment attorney who keeps abreast of case law will be aware of a steady stream of cases where the court was asked to apply contract language to new technologies that didn’t exist when the contract was made. See, for example, this article, which provides a short overview of the subject.

specialist2But perhaps in some market sectors, the lawyers who specialise in that sector aren’t very good lawyers. If you have to choose between good and specialist, which should you go for? It is difficult for a lay client to know whether she is choosing a damn good lawyer (a qualitative assessment). It is easier to find evidence of prior experience of the industry sector (a quantitative assessment). In IP Draughts’ experience, many clients prioritise prior experience, sometimes to an excessive extent. He has encountered clients who prefer a lawyer who has done exactly the same type of deal before (eg the development of a particular type of medical device), rather than one who has advised on many other types of development contract in the medical sector. Viewed from afar, the latter category may be thought already very specialist, and perhaps sufficiently specialist for the contract in question.

About 25 years ago, a former senior partner of a leading IP law firm discussed with IP Draughts the choice of barristers (advocates) for a major case. His view was that, if he couldn’t get one of the very top barristers at the intellectual property bar, he would not go down to the second tier, but would instead instruct a high-quality barrister at the commercial bar, and instruct them in the technology and IP issues, with assistance from junior IP counsel. His priority was a damn good lawyer rather than a specialist.

goodenoughComing back to contract drafting, rather than IP litigation, in an ideal world one would choose a lawyer who is both good and specialist (as well as having other qualities like fitting in with the client’s approach, being a good negotiator, etc etc). For a major transaction, it may be worth a client’s time to research carefully who might fulfil all of these criteria. For more routine matters, if you have a lawyer whose abilities and integrity you trust, and they tell you that they are comfortable with the task, then you may prefer to stick with them than find someone more specialist.

Sometimes, you should be reassured when your lawyer tells you “I’m not a specialist in this field (but I think I can help you).”

Leave a comment

Filed under Contract drafting, Legal practice

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s