[Today’s guest post is from Sam Castree, the Head of Entertainment Law at Crawford Intellectual Property Law out there in Barrington, IL…you know, the state you have to go through both Ohio and Indiana to get to from here. Sam can be found on Twitter at @IndieGameLawyer, and has graciously agreed to provide me with a break. Sit back and enjoy the…less profane…take on the job of a lawyer. -Boozy].
Hello out there! My name is Sam Castree. I’m the head of Entertainment Law at Crawford Intellectual Property Law in Barrington, Illinois. Today, I’m doing a guest post for the Boozy Barrister, which is clear proof that I’ve finally made it in the legal world.
So, Boozy wanted something of interest to new attorneys. I’m not sure whether this should be filed under “Professional Responsibility” or “Practical Lawyering Tips” or “Commiserating Over Bitter Tears,” but today, I want to talk to you about the three major components of a lawyer’s job. This isn’t some fancy theory or philosophical treatise or idealistic law review article about “the soul of the profession.” No, these are the actual things that real lawyers have to do in real life. This is what you actually signed up for when you took the bar exam.
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Protecting your clients’ rights from opposing parties.
First, and probably most obvious, is that we lawyers protect our clients and stand up for their rights. This doesn’t just mean litigating in court (or as I like to call it, “the nuclear option”). Looking out for a client can mean setting up a business properly, scrutinizing a contract, or filing a copyright application. It can also mean writing a nasty letter using big lawyer words to scare the other side into compliance without having to go to court, or negotiating an end to hostilities. I’m fortunate enough that I even like some of my clients, and if feels good to be able to help them organize their affairs properly and protect their hard work.
But there will also be clients that you dread ever having to interact with. Some will just rub you the wrong way. Some might be a hair’s breadth from being literal snake-oil salesmen. But they still have rights, too. If the client’s landlord is trying to violate the lease agreement, or if someone is counterfeiting his critical Uncle Joe’s-Brand Genuine Snake Oil®, or if he’s advocating an at-least semi-plausible reading of a distribution contract, then he deserves to have his legitimate rights protected. Now, there are lines that must not be crossed, but even scummy clients don’t deserve to get sued when they haven’t done something wrong. And yes, it even feels good to see those kinds of clients have their rights vindicated. Maybe not as good, but still good.
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Protecting your clients from themselves.
The second, possibly larger, piece of the profession is protecting clients from themselves. Sometimes, clients are just really mad. Angry. Wrathful, even. Someone has done her wrong, and now she’s out for blood. And, like most people, she makes very bad decisions when she’s angry. There is a high correlation between doing something dumb and getting sued, and angry people tend to do dumb things. Being mad is no excuse for breaching a contract, or saying something defamatory, or even (please no) committing some sort of criminal action. Sometimes, being a good lawyer means keeping your clients happy, even when they don’t want to be.
There is also a high correlation between doing something dumb and suing someone, because they are often the same thing. Earlier, I said that filing a lawsuit is “the nuclear option.” I only say that because litigation is a grave and awful thing that tends toward mutual annihilation – annihilation of time, of emotion, and most especially of finances. Now, there comes a time when we need to strongly consider pushing that big red button, but it needs to be done with sober reflection and a cool head. You need to be that cool head. It is said that, when it comes to lawsuits, often the only winners are the lawyers. I’ve never understood why people say that like it’s a bad thing. Nevertheless, clients have a funny way of not appreciating how their case is bankrolling the down payment on your new vacation home.
Other clients are more innocent, but still in need of serious hand-holding. Most people have an imprecise, or even totally erroneous, idea of what the law actually says. After years of watching L.A. Law, or Ally McBeal, or whatever legal show the kids are into these days, people get some funny ideas. You might have a client who, through no serious fault of her own, wants to pursue a course of action that is, in fact, manifestly against the law. Or you might need to have a serious talk with a client as to why CC’ing his best friend on an important e-mail full of sensitive legal advice is a seriously dumb thing to do. Occasionally, people just get an idea in their heads, and they really really want to follow through with it. Sometimes, being a good lawyer means that you have to say, “Are you out of your mind?!” Or maybe something a bit more diplomatic to the same effect. But the point is, clients don’t always see the pitfalls, because they don’t know what to look out for.
I once jokingly told a client (probably jokingly (well, he lived too far away, in any event)) that if he tried to sign a particular contract, I would drive to his house, rip the pen out of his hand, and throw it through the window. The agreement was one-sided, it was very unclear about a lot of things, and it was most certainly cobbled together from 3 or 4 different documents that someone found online and mashed together into an unholy semblance of contractual life. But that’s why I was retained: to point out the problems. And just by doing my job – by pointing out all of the problems to the other side – it nearly killed the deal for my client. But do you know what can be even worse than losing a deal? Getting the deal, especially if it’s one that you’ll come to regret. An ounce of prevention is worth a pound of litigation, after all. Being a good lawyer means presenting options to your clients; often, the options are: (1) spend a decent amount of money to do things right the first time, or (2) spend an indecent amount of money to fix things after the fact. That often gets the client’s attention.
But sometimes it doesn’t. And there is a certain type of client who is entirely too cavalier about pretty much everything that he does. And like actual cavaliers of olde, he steps in the occasional pile of horse manure. But he can’t be bothered with the filth and the stench, and he just wants you to clean it up. “Eh, I didn’t think that the contract was fair anymore, so I just stopped.” “Eh, no one really takes those FTC regulations seriously, anyway.” “You’ve told me that my idea is unpatentable, but file it anyway. Maybe it will be.” “What do you mean, ‘corporate veil’?” If you’re lucky, maybe he’ll even tell you about his terrible idea before he goes through with it, and then you can at least say “I told you so.”
Just make sure you have it in writing, because…
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Protecting yourself from your clients.
The third, and doubtlessly most important, part of being a lawyer is protecting yourself from your clients. As a lawyer, you must look out for your client’s best interests. But you might be shocked to learn that clients do not have to reciprocate. Clients are coming to you for results: They want to win their cases. They want their problems solved. They want everything to be perfect. But here’s the thing. Perfection is probably not something that you can deliver, and certainly not with any consistency. Reasonable people understand that, and if you’ve done your job correctly, then the client is aware of the likelihood of success, or lack thereof, and the possible outcomes that go along with it. But there is a small number of people who can’t take ‘no’ for an answer, and if things don’t go just the way that they want, then it must be YOUR fault, and not the hopeless and idiotic situation that they got themselves into. So when you have to tell a client, “You’re screwed,” make sure that it’s in writing. If it was in an e-mail, great. If it was over the phone, then sent a follow-up summary letter, “As we discussed on the phone this afternoon, you’re screwed.” Clients are notorious for having short memories, especially when it comes to things that they don’t want to hear, so it’s vital to be able to say “We discussed this last week,” and back it up with hard evidence.
And if anyone ever drops the M word, get out immediately. You know the word that I mean. No, not “Macbeth.” I mean *whispers* “malpractice.” Now, if you’ve actually committed malpractice, that’s one thing. There is an appropriate time to beg for forgiveness and fall on your sword. But if a client ever casually mentions the M word just because he doesn’t like how you did something, or because the bill was higher than expected even though you’ve been very clear about costs, then your reaction needs to be to drop everything and prepare the motion to withdraw. It should be a Pavlovian response. Someone says, “malpractice” and you say, “I move to withdraw.” It can make professional responsibility CLE seminars a bit awkward, but it’s totally worth it in the long run.
To summarize, I’ll end with a joke (for certain definitions of “joke”) that I’m told is fairly well known in legal circles. A criminal defense lawyer is in court. The jury comes back with a verdict, “Guilty.” The client turns to the lawyer and says, “Do we appeal? Is there a motion that you can file? What happens now?” The lawyer turns to the client and says, “What happens now? Well, you’re going to jail, and I’m going home for dinner.”
Remember that, no matter how much you might want to, you can’t control your clients. Sometimes, the only appropriate response at the end of the day is to go home and enjoy dinner.