A friend of mine told me that most independent game developers refuse to acquire legal counsel for a variety of reasons. These reasons range everywhere from prohibitive costs to intimidation to fear of getting too wrapped up in the "business end" of things. This obviously creates a few problems if you seriously plan on doing business. Think of your legal matters (i.e. contracts, negotiations, accounting, litigation) in terms of programming. Would you be able to write a full game after only reading one or two websites on coding? Would you be able to fix bugs without knowing the programming language? Would you be able to make your own game by relying entirely on someone else’s code, without knowing what that code does? I’m stretching the metaphor a bit, but by now you should be getting the point—there’s a reason lawyers exist, and that reason is to help you navigate the legal mine field you’re walking into when you do business.
In this post I’m going to try to dispel some of the myths and fears that seem to surround the legal profession. I’m also going to give some general good advice on how to determine whether your lawyer is a good fit.
Myth #1: I can’t afford to pay a lawyer
Simply put, if you can’t afford to pay a lawyer to look over a contract, you shouldn’t be doing business. Lawyers want to help you. Some lawyers will review a contract for free or for a reduced rate if you inform them of your financial situation. Others will agree to do the work in exchange for a percentage of the deal. Still others will agree to a reduced flat fee. Many permit payment via installments, and several firms and solo practitioners now take credit cards and alternative methods of payment. The cost of having a contract reviewed is a cost of doing business; just as purchasing certain software is a cost of game development.
Myth #2: I can do it myself
Representing yourself has several drawbacks. First, you are probably inexperienced with legal documents. You may not understand the strategy of choice-of-law, the benefits of arbitration, the breakdown of royalties, and the nuances of intellectual property law both domestic and international that all play significant roles in game contracts. You probably aren’t terribly familiar with your available remedies in a breach of contract versus a material breach of contract. You’re probably confused by a lot of the boilerplate that exists in contracts—don’t worry, you’re not alone. There are many attorneys without transactional experience who aren’t aware of why certain provisions exist in a contract. A good attorney, however, will know where to get the answer. The attorney you want is one who can explain why that language exists and more importantly, can change the language in a way that benefits you; otherwise he or she can at least point out why the language poses a risk to you.
Second, it’s unprofessional. Honest, experienced business people understand the necessity of lawyers. They anticipate lawyers in the negotiation process. They expect agreements to be reviewed by competent, diligent counsel, and if you show up without an attorney, you are at a distinct disadvantage.
Third, and on a related note, honest, experienced business people have lawyers, and will expect you to have a lawyer. Anyone who suggests that you shouldn’t get a lawyer or that lawyers will only "complicate things" is very likely trying to screw you. Be very wary if the person you’re contracting with tells you that you don’t need a lawyer. They are either inexperienced or they have every intention of taking advantage of you.
Myth #3: All lawyers are evil
I’ve heard this one a lot, and I really think that many people believe this. Everyone has a lawyer horror story or has more than likely heard a lawyer horror story that they feel bears repeating.
There are honest lawyers. They love what they do, they have a passion for their work, and they aren’t in it strictly for the money. The legal profession is first and foremost a profession, and people who go into it for the money don’t last long. Simply put, practicing law requires discipline, dedication, love, and a desire to help others. Without those basics a lawyer will be very dissatisfied with their chosen profession. There is a lot of heartache, disappointment, injustice, unpaid fees, and politics that lawyers have to put up with. If they don’t love what they do, you’ll probably know the moment you meet them. They give off a distinct air of "I don’t have enough time for you and I’d rather be doing something else." Otherwise they’ll spend more time talking about what they can do for you instead of learning what they can do for you by listening to what you have to say.
Simply put, lawyers are people. They have hobbies, friends, relationships, and families, most of which come second to their profession. They are not all business suits and sleaze. Granted, there are plenty of bad lawyers out there who have manifested in the horror stories you’ve heard— but every product or service produces its own brand of garbage, lawyers and game developers being no exception to the rule. The best way to avoid bad lawyers is to check out their product—ask the lawyer for previous clients who can provide a reference. From the client list provided you can determine 1) whether the attorney will have time to manage your workload; 2) whether the attorney has experience with your type of product and; 3) obviously, whether (s)he’s any good. If you’ve picked up a new/young/fresh after the bar attorney, ask for information regarding former employment, mentors, etc.
Remember that you must rely on your lawyer. Good lawyers want you to feel comfortable trusting them, will trust you, and will actually care about you and your business. A good lawyer is your priest, your therapist, your defender, your confidante, and your most honest friend. They’re a bit like house elves, actually—they keep your secrets while servings your needs. They’re just slightly better dressed.
Myth #4: All lawyers are naturally adversarial
This is a myth with some seeds of truth to it. Attorneys are advocates. They are obligated to zealously defend their clients in court. Some attorneys take this zealous spirit to the negotiating table, where it is sometimes less effective. Deals can fall apart when a lawyer puts his own ego before his client’s needs. It’s been known to happen, and the best way to avoid it is to know your attorney and know his or her reputation. You want your attorney to go to bat for you—you don’t want your attorney to hit the person sitting on the other side of the negotiating table in the teeth with said bat.
Only 2% of civil cases go to trial in the US. Most cases are settled out of court. Settlement requires that the parties settle on what is tantamount to a contract. Lawyers, regardless of their chosen practice area, are primarily negotiators. They may argue vehemently for their clients in memoranda of law to the courts prior to going into settlement, but once they enter into settlement negotiations, the goal is to reach a decision that both parties can stomach.
Transactional and entertainment attorneys are probably better suited to deal with the particular contracts you will have to deal with. However, it is also important to note that a good lawyer will avoid litigation, but will not be afraid to litigate if necessary. Oftentimes you will need an attorney experienced in litigation when your rights are infringed upon or when you’re being sued.
The bottom line is that your attorney must be aware of your needs. They must know what you want and need out of a deal, what you as the client will and will not accept. While an attorney should zealously attempt to get the best deal possible, an attorney who lets his or her own ego or adversarial nature get in the way of a perfectly good deal is a huge liability to your business.
In any business relationship, the best advice I can give you is to know who you’re dealing with. This is true for lawyers, business consultants, financial consultants, accountants, and publishers. This is especially true for your lawyer. A good lawyer will explain the terms of the contract to you in detail. A good lawyer will return your calls within 2-4 hours, or at least within the same day. If they don’t, they’ll e-mail you or find some other way of getting in touch with you to let you know the status of your case or deal. They will let you know how they spend their time, and they will provide you with documentation, research, memos to justify their fees. A good lawyer will find a way to make representation affordable. Most of all, a good lawyer will look out for your best interest and will be in a position to protect you in ways that you are not able to protect yourself.
- Note: This is a slightly biased slant, because I work for and know some truly excellent, ethical, and gifted lawyers, and they’ve set the bar for the type of lawyer I want to become.