What scares artists more than a blank canvas and photographers more than a corrupted flashcard? The question of how to hire a lawyer. This is a topic we get queried on frequently, especially at the end of our lectures when we talk one on one with attendees. We guess it’s simply a topic that’s not discussed in polite company. But we’re New Yorkers, we’re not shy about such topics. We thought we exhausted the topic with two previous posts (here and here), and with a section in our new book “The Copyright Zone”.
But wait! There’s still more thanks in large measure to some rather strange behavior on the part of lawyers – imagine! It seems to be a topic that keeps on giving. So here’s yet more on the topic of hiring a competent lawyer to represent you in a photo related matter, especially a copyright case. And if you haven’t read the previous articles or the section in our book, we advise you to do so. It’s information that we guarantee you will find useful.
1.) Meet with the lawyer in person in a real office. Make sure that the two of you can establish a line of communication that flows both ways then make sure that your case will not be referred or handed over to someone else who may be “associated” with the law firm at some other “office”. Often these “associates” work in other states and rely on cases being referred to them to make a living. More often such associates may work hundreds or thousands of miles away from the attorney with whom you met. Your case will thus be farmed out to a junior attorney whose lack of credentials will become obvious to the other side in the time it takes to do a Google search. If the associate works in the same office and may be working on your case, ask to meet him/her. In some firms the associate does most or all of the grunt work.
2.) Do not hire an attorney or firm which lists a PO box on its legal stationery or on the firm’s website. Such attorneys – for many good reasons – are not taken seriously by other attorneys. In some states an attorney is required to maintain a real office and have a hard address. Attorneys who maintain a home/office have a “real” address. A real litigator needs facilities to for example, conduct depositions where it is common that 6 – 20 people need to literally, sit around a table.
In certain districts in New York , an attorney must maintain a real office so that all financial records can be spot checked without notice by the authorities on site and without notice. In any part of the state of NY (as well as in many other states) all lawyers must maintain a real office at which papers can be served and the authorities can check on the very legitimacy of the practice. A lawyer obtains a license to practice in a given state and in exchange the state has the power to investigate complaints made against that lawyer which could threaten that license – you can’t inspect a PO box.
3.) Require that the attorney provide you with a list of cases where he/she has represented parties in similar cases in the local state or federal court where your matter will be heard. In copyright cases, that means the United States District Court (Federal) in your federal district. Many lawyers claim to be experienced litigators but when you run their name through the Federal Court computers little or nothing comes up.
The names of cases where an attorney has actually represented parties in federal courts is a public record searchable by the attorney’s name. Writing articles, blogs or maintaining a slick website does not make a lawyer a trial lawyer. Being a former photographer is of little to no consequence and gives no indication of having the skills of an experienced trial lawyer. Busy trial lawyers don’t have time to have second jobs. You need to seriously question the thought process of a lawyer who emphasizes his/her photo background rather than his/her legal experience. You don’t need photo advice, you need legal advice.
Your family lawyer can run such an attorney name search from his or her own office in the federal court system for you in about 2 minutes. If you can’t get an attorney or law student to do that for you, you might have to visit the federal courthouse where a clerk will do it for you. Pay particular attention to the names of the parties in prior cases. Are the photographers well known? Are the infringers big companies with lots of lawyers?
Recent example: Ed’s name appears as counsel in well over 150 IP cases actually filed in the Federal Court in the last few years in Manhattan alone. One of Ed’s adversaries stated something to a judge and the reaction from his Honor was one of disbelief. The attorney defensively then told the judge that, “(I) am talking based on my pretty extensive experience in these cases (in this court).” Turns out the experienced IP litigator has had exactly 2 cases in Federal Court that involved copyright in the last 15 years.
4.) Have the lawyer name and talk about the judges or magistrates who might hear your case. Ask him/her how many times he/she has appeared in that judge or magistrate’s courtroom. If the lawyer doesn’t know at least most of the judges or magistrates by name in your federal district, look elsewhere for representation.
A good lawyer knows the law, a great lawyer knows the judge.
Any litigator who goes to any federal court with any frequency knows the names of most if not all of the judges and magistrates. An experienced lawyer should be able to describe the judge’s personality, quirks, likes and dislikes with you as if the two of you were having a beer. (For those of how who have gone through a divorce proceeding, you know how important and how much influence a judge can have over your life regardless of what the law appears to state).
5.) Request copies of decisions made by judges and/or juries in cases where this lawyer has actually represented a client in a similar type case. Oft times such decisions will contain comments from the judge on the relative skills or lack thereof of counsel for either or both sides.
6.) Ask to see a demand letter written by that lawyer in some other copyright infringement case. Tell the attorney that you know that he/she will need to black out the names of the parties for confidentiality purposes but request that he/she produce a sample while you are sitting there in his/her office. See if the demand letter references copyright registrations, demands full disclosure of infringing uses and sounds as if a lawyer (not a photographer) wrote it. Check the grammar…closely. If the lawyer won’t or can’t show you such a letter, use another lawyer.
7.) Don’t hire an attorney in an infringement matter unless that lawyer is going to be the lawyer who will be representing you in court, which may include selecting a jury. There are many lawyers who take almost any case, issue a demand letter and then if the other side ignores the letter or refuses to settle, the lawyer “gives up the case”. They hope for a quick score but if confronted with an adversary who knows that the author of the demand letter doesn’t even know where the courthouse is located, such letter will be ignored. Your lawyer will then give up on both the claim and on you.
Lawyers who write letters but can’t try cases are known in the trade as “pioneers” because they “settle early”.
8.) Make sure the attorney is prepared to file and follow through with litigation in the event the case does not settle. If the case has significant value, an attorney must be fully prepared to commence suit and go to trial if such is necessary to get you maximum value. Also, many cases are settled once the trial papers have been filed.
It is the credible threat of actually being able to start and finish a trial that often serves as the stick that pushes an infringer to settle.
9.) Websites are by nature just a form of advertising and all advertising is misleading. Forget what anyone has told you about attorney advertising needing to meet a “higher standard” than other advertising. Technically true. In real life, not so much. A law firm’s website is just as likely to be misleading as one for carpet cleaning. One never knows what critical information a law firm’s website omits. These sites exist primarily to get clients to walk in the door. They are created by PR and advertising firms who are after all, professional deceivers being employed by professional deceivers. Or maybe all 1644 pizzerias in New York City actually do serve the “world’s best pizza”.
Ed’s favorite misleading attorney statement came after a settlement. Ed’s client would have settled the case for $50,000 but demanded $125,000. The adversary after costing his client needless tens of thousands of dollars in attorneys fees, agreed to settle for the $100,000 – twice the number Ed’s client would have gladly accepted. That lawyer actually posted on his firm’s website, “successfully settled claim against a major TV network for copyright infringement”. His client overpaid by $50,000 and the lawyer uses that as a gold star for himself! Only Ed and his client could know that the boast is dead wrong.
10.) Attorneys use ghostwriters. There, we said it. A dirty little secret is that many articles that are attributed to attorneys are in reality written by their law students, law clerks or professional business writers who charge by the article. While disfavored and in some cases flat out unethical, it is also common for attorneys (and CPAs) to buy articles written by others to which they attach their own name as “author”. Note that there are some attorneys who write a lot about the business but you rarely see them lecture or teach without the benefit of a prepared script. Attorneys who have difficulty answering questions extemporaneously are typically the same attorneys who can’t perform in court. Despite what you see on TV, trials are unscripted.
Its been accurately said that writing about the law is like reading music, but litigating is like playing jazz. A litigator needs to feel the music, be able to improvise, know how to play a solo as well as with others in the group and as Miles Davis proved, know when to make beautiful music by being silent.
One thing you can safely assume is that we do not employ any ghostwriters for our blog. Never have, never will. They simply lack our sense of humor.