In our books and in this blog we have oft written about how to interview and hire an attorney, something we find photographers are clueless and scared to death about. Photographers are universally scared to talk to a lawyer, even when it’s one they need to represent them. We posted articles entitled “Lawyers Need Money Too” , “Don’t Fire Till You see the Whites of Their Eyes” , “Prophets and Lost Profits”, and several others you can find on our blog. This long but very informative post is a continuation of that series, aimed to guide you and arm you with information you need. If you have not read the above linked pasts before or even recently, we suggest you do so after reading this “sequel”.
A “semi-perfect” legal storm has created an atmosphere where pursuing copyright infringements of (especially) registered works has become profitable. We speak often as many do, about artists never giving away their copyright, but we’ve also written and spoke loudly about why a creative ought NEVER give the right to pursue, sue, or in any way defend his/her copyright to a stock agency or rep or agent. You should always retain and keep those rights for yourself. (If you search for “reps” or “agents” on this blog, you will see numerous posts.) Similarly we strongly dissuade creatives from giving these rights away to any of the various search companies who are falling over each other to sign you up so they can make money…for themselves. They sound good (and easy) on the surface, but it’s what happens below the surface where the dollars hit the fan.
Whether or not a given attorney is actually skilled or experienced in the fields of copyright or photo law, nearly all attorneys possess a keen sense of smell for money. Some younger and/or less than reputable ones can only sense “easy money”. With the economy and particularly the tightening business conditions existing in the legal profession, attorneys have developed a keen interest in taking on cases of a type and nature previously unknown to them.
They are commonly known as “door lawyers”. They will take virtually any case or client that comes through the door because they need the business…any business. Still others are known as “pioneers” because they are early settlers, they settle cases well before ascertaining their true value. Often these are lawyers with no trial experience and are tempted to take a fee from a low settlement offer, much below what a case is actually worth, which is being dangled in front of them and thusly avoids the necessity of doing additional work. Cases that are settled swiftly are done so sometimes because the infringing party sees it as a cheap solution. Any negotiator worth their salt knows you don’t start offering you maximum amount, you start with an extremely lowball price to initiate negation. We’re sure some infringing defendant’s lawyers are flabbergasted when one of these early settlers actually accepts their first offer.
Some attorneys put nearly any claim they receive into litigation without making any real effort to ascertain whether the matter can or should be resolved without the need to file a case with a Federal Court. Strictly speaking doing so is frequently unethical and may subject the attorney to court sanctions or discipline. But this is a rare occurrence, as settlers far outnumber litigators.
Creatives tales of woe often come to Ed and Jack by way of mere conversation and to see what if any legal steps can be taken. Some are true horror stories of lawyer/client relationships or cases gone terribly wrong. Sometimes the client is at fault but a lot of these “Tales From the Crypt” reflects the action or inaction of an inexperienced and/or less than ethical attorney who should have never taken the case in the first place.
Here are some common warning signs that typically indicate something is not going as it should in the attorney/client relationship or that the attorney soliciting your business is not right for you.
Obligations an attorney has to a client include but are not limited to:
* Keep you informed on an on-going basis of any settlement discussions or offers of settlement.
* Provide you with copies of all documents on an ongoing basis that are remotely relevant to your case including letters by and between opposing counsel (some of which makes for actual fun reading);
* Give you time to review any and all papers that will be seen by the court regardless of who has authored them.
* Notify you of any/all deadlines set for any/all parties to produce papers, records, photos or things imposed by the court or agreed upon by the attorneys;
* Ascertain and/or formally request that written representations of any/all purported infringements be supplied before an action is filed in Federal Court. You lawyer should make it incumbent on the infringer to supply all the instances where they infringed your image. It is not you responsibility to find each infringements if your attorney is handling this correctly. Both you and your lawyer should always do a diligent search, but having the other side provide the infringement history can be critically important.
* Conform the terms of any fee arrangements to state laws and Federal Court practice.
* In the event the attorney/law firm has agreed to front expenses (not typical among reputable attorneys) that attorney/firm must be ready, financially able and willing to pay for expert’s fees, stenographic reporters, court fees, travel and location costs, and so on when appropriate. Likewise and as in most cases, the client pays expenses and must do so in a timely matter. An attorney taking on this responsibility must be able and willing to spend his/her own money when the time comes and in the same manner. Beware of attorneys willing to take cases on a contingency basis AND front expenses (see below).
* Demonstrate that the lawyer has some form of access to a “real” law office. Attorneys who seem to always meet with clients for privileged conversations at diners or public venues where privacy cannot be assured, ought be avoided. (Note for movie buffs: DeNiro used a diner in “Goodfellows” whereas Tony Soprano used a doctor’s office). There are reputable attorneys who work exclusively from home with access to law office space on a part time basis for sit down depositions, consultation etc. and that’s fine. In the field of intellectual property there are however, relatively few experienced litigators who employ that model. If the attorney can’t afford some kind of “real office” he/she is unlikely to afford to pay any expenses on your behalf or even his/her own. Adversary attorneys generally know the financial stability – or lack thereof – of their opponents and make settlement offers commensurate therewith.
* Thoroughly explain and prepare you for any depositions or court appearances. If your deposition is about to be taken expect your lawyer to take several hours – at least – to prep you in person. Ed’s office typically spends a minimum of 4 – 5 hours in so doing in some cases, prep time is measured in days. Jack will attest that after Ed prepped him for a deposition once, his deposition became a walk in the woods, so to speak, because of Ed’s prep.
* Notify you of all court appearances and give you the option of attending even if the judge does not require you to be there. Some attorneys like you to be there, even if it’s just to inform the judge that their client is an involved and active client;
* Provide you with a copy of any letter containing a settlement demand or response before it is sent out so you can approve its contents, point out factual errors and/or ask your attorney why the letter contains certain points and not other.
* An explanation comprehensible to you of any and all steps taken in representing or defending you.
* Disclosing to you whether he/she is capable of going to trial should such be necessary and whether or not he/she has appeared before “your” judge before.
* Answering any question you may have about your case.
Typical Fee Arrangements
* Do not hire any attorney under any circumstances without reading, understanding and signing a written fee letter. Do not sign any such agreement if you have any unanswered questions. Beware of any attorney who seems to be forcing you into a quick decision before you can show the agreement to your spouse, accountant or family lawyer. If you are being pressured to sign, don’t.
* Hourly fee arrangements are common as are initial retainer payments. Hourly rates vary across the USA depending on: experience of the attorney in matters of this type, geography, reputation of the attorney especially in the court your case will be heard in, prior results, ability to negotiate with attorneys and judges, knowledge of the industry, ability to value the case, authorship of articles and books, teaching experience and experience serving as a neutral expert or arbitrator in matters like yours. There are countless other factors the foregoing being the most important ones.
* Attorneys in NYC, Chicago, LA. Boston, Miami and other major cities are very likely (but not always) to charge higher fees than those located in smaller cities or suburbs. There are many sources which you can employ to determine the going hourly rates in your area. Remember that the best source of referral to an IP lawyer is from another IP lawyer or active local litigator who can also tell you what attorneys in your neck of the woods are charging. The rates charged are especially important if you prevail in a copyright case and seek to retrieve your attorneys’ fees from the court. If you lose your case you may be responsible to pay some or all of the other side’s attorneys’ fees.
Here’s an example of a chart in use in Washington DC by the Federal Court known as the Laffey Matrix which is a free resource published each year by the U.S. Attorney’s Office for the District of Columbia. The tiered rates to applied from May 2014 to June 2015:
The various levels in the “Experience” column refer to the years following the attorney’s graduation from law school and are intended to correspond to “junior associates” (i.e., one to three years after graduation), “senior associates” (i.e., four to seven years), “experienced federal court litigators” (i.e., eight to 10 years and 11 to 19 years) and “very experienced federal court litigators” (i.e., 20 years or more). IP specialists typically receive higher fees than general practitioners.
These rates were accepted in District of Columbia courts as one factor to consider when setting rates. Some courts in areas far away from the District of Columbia also use them, although many do not. It is agreed that there must be an adjustment to take the local cost of a lawyer’s time into account. Some judges use local surveys to determine the relative costs incurred by and fees charged by lawyers practicing in say, San Francisco, Las Vegas or St. Paul.
* Hourly legal fees for experienced IP litigators in 2017, vary from $400 – $1,200 per hour in NYC, Chicago, DC and LA. Hourly rates are not however an accurate indication of the effectiveness of any given attorney(s).
* Contingency fee arrangements provide for the attorney to be entitled to payment for his/her services only in the event of settlement or collection of monies after trial. The expenses fronted by the client ie for court filing fees and experts are deducted from the gross sum recovered and then a percentage of the net recovery is due the attorney. This percentage typically ranges from anywhere as low as 10% if the case is resolved promptly by the attorneys before any legal papers are filed to a sliding scale ranging 25 – 45% depending upon the stage at which the case concludes. The percentage increases if the case advances to filing, discovery, depositions and/or trial.
* Many states including NY cap the amount or percentage an attorney can charge by law. In NY State that cap is 50%. That cap is rarely employed unless the matter has gone to trial and enormous amounts of time have been spent by a very experienced attorney. Other states have different rules. Ed has never been involved in any case where an experienced IP attorney even sought a 50% contingency fee. Attorneys who request such a high contingency fee even if they settle your case without filing a court case, should be heavily scrutinized. If they lack plush offices and large staffs be doubly cautious.
* Modified Contingency Fees are very common and typically make the most sense for client and attorney alike. Here the client pays a modest one time up front retainer of anywhere from $250 – $2,500 depending on the size and nature of the case. The client pays any/all expenses on an on- going basis and the attorney earns a contingency fee of anywhere from 25% to 45% of the net recovery based on whether the case was filed, depositions, held, whether a trial was started and settled during trial or whether the case has gone to verdict and the loser has to be chased for the money owed. The concept is higher percentages apply only when the attorney has performed more work. If no money is recovered then the attorney has worked for pennies on the hour…if that much.
* When an author’s attorney has prevailed and is entitled to seek an award of attorneys fees whether working on a contingency, modified contingency or hourly fee, the Court and/or jury has great discretion as to whether and/or what amount will be awarded. In making its determination the court looks at the nature of the work performed by the attorney, its effectiveness, efforts made by the lawyer to keep fees low and court time at a minimum, efforts to settle prior to trial and the nature of the fee arrangement agreed to by the client. An attorney who is to receive 1/2 of the recovery is very unlikely to receive sympathy from the judge or jury and in some states could not be entitled to any fee over that 50%. Contrast an experienced attorney working on a 40% fee who wins a case against a large corporation after a lengthy trial.
* Attorneys who charge high contingency fees are soon known to the local Federal Court Judges and Magistrate Judges. They are frequently “urged” by such judges to reduce their fees in order to settle a case which should have been settled without filing suit. Once their reputation is known to these all powerful judges, like elephants, judges won’t in the future forget the name, face or fee should the lawyer appear before them again. Future clients will often pay the price for the judge’s negative view of their attorney. Fair? Probably not. Real life? You bet your sweet bippy!
* Beware attorneys who rush to file suit without making realistic efforts to settle. Most who do so are looking for a quick buck for themselves without having any intention of doing all of the grunt work – like taking depositions – to ascertain the true value of the case.
One of our favorite quotes that we use often is Mike Tyson’s “Everyone has a plan until they get punched”. Having an infringement of your work or any other such issue you face in today’s hard world of commerce will have you upset and agitated. The best tool will be finding a proper attorney so you can proceed with a real plan. We hope the above information above is helpful in having find not just “a” lawyer for your needs in the future, but the “right” lawyer.