Month: September 2016

Creative professionals are usuallyvery smart people. Whether formally educated or not, your brains tend to fire pretty well (even if some people think they fire, um, differently). This is generally a good thing (especially the differently bit) and can definitely make for better art, no matter what your medium. The downside is that sometimes some of you think you know more than you really do*, especially abouta very technically precise field like the law. That attitude can bite you in the ass.

When I was in law school, I wrotea post on my Burns Auto Parts Super Premium Blog about how, before law school, I thought I knew copyright law pretty welland how wrong I was. See, I learned that while I knew more than the average person, what I knew was actually very, very little, especially compared to, say, a copyright lawyer. There is so much more to copyrightlaw (and law in general) than I ever could have imagined without having gone through all of law school. There is the interplay between the statutory scheme and constitutional issues, and how it works in day-to-day business, and how the courts interpret all of it, and more.Unless you immerse yourself for three years in intensive, undistractedstudy (hello,law school) and then get out there in the trenches, you just can’t know. I sure didn’t. Even after all that, you still have to do what I do: spend a ridiculous amount of time reading cases and highly technical academic articles to learn more, every day, just to keep up.

But I was one of you before law schoolone of those who even debated the woman who would become my mentor, Carolyn Wright, on legal questions that appeared in places like the old APA Forums. I look back on those debates with more than a little embarrassment. I thought I knew the law well enough to challenge her opinions when, really, I knew just enough to probably frustrate the hell out of her when she was trying to help by teaching the community the (actual) best practices (I will always appreciate her grace–not once did she later say “Do you remember…?”).

Now, after practicing for years, I know what itfeels like to be challenged by people who think they know more than they do. I have the headdesk-induced scars to prove it.

The most frustrating thing that happens in my practice isnt when the opposition pulls some chicanery or even when I get called names by defendants. Nope, the worst is when someone comes to me with a question which I answer based on my expertise (and often I do additional research to make sure my info on that particular issueis current), and then s/he doesnt like the answer, saying, Well, I feel that youre wrong.

First, you dontfeelthat Im wrong, youthinkI am (language matters!); and second, if you arent going to trust my opinion, then you shouldnt ask for it. Thats not me being petty, thats me knowing that I cant do the bestfor you unless you trust me when it comes to legal issues. My job is to fight for you and to have your back, but I cant do any of that if you dont trust that what I am telling you is the best, most accurate answer and advice based inthe law that I can give you. I’m not making stuff up or telling you what I think you want to hear–I’m being 100% straight with you. Im happy to talk to you and explain what I can, but in the end, you just have to trust me.

There are ethics rules that say we have to do what is best for you, sure, but I think most lawyers actively want to do what is best for our clients; that means telling you the truth, even the hard truth. None of us lawyers likes having to tell a (potential) client bad news. We know its unfair that a screwed-up copyright registration can scuttle an otherwise beautiful case and that the Copyright Office makes it damn easy to screw up (especially the published/unpublished thing). It sucksthat if we cant get you statutory damages (register, please) or documentthe value of yourlicenseis $10K we cant get $10K for you. It’s frustrating as hell that while any normal human can see your work has been knocked off, stylistically, proving its actually an infringement isn’t so clear and itwould cost gods own wallet to litigate and we could still lose, so we cant take the case on a contingency fee basis. And it’s not easy to tell you that you cant not do X now (without repercussions) because you agreed in your contract to do X.

Lawyerswant to be able to help people; thats why Ido what Ido (honestly, I think all good lawyers still hold that as their first principle). We look for ways to sayyesto whatever it is that you want, to enable you to achieve your goal, to fix the wrongs, promote the good, and to defend your rights, but sometimes we have to saynoornot like that you cantorwell, you can try it, but heres what youre risking, orit just isnt worth that much, or even,it sucks, but justwrite the check and move on. Your job, then, is to trust your lawyer; s/he is offering you the best advice possible.

I (and others) have describedlaw school like military bootcamp for the brain: a law student is stripped of her old way of thinking and taught a new way in her first year, then trained to use that new way to alevel of competence in the next two years. Then, we go out and apply it all in the real world, honing our knowledge and skills as we go. Maybe the Vulcan Science Academy is a better analogy, actually, because we learn toprocess a ton of data with dispassionate logic. But the best of us also reintroduce humanity to the practice and become weird hybrids of logic and compassion. That’s what I shoot for (and I know others that do the same).

The result of this training is that lawyers think strategically as well as tactically about each of your issues and formulate a plan to achieve yourobjectives, if at all possible; or to minimizethe bad stuff, if not. There is balance and judgment involved. Its tough work that requires more time and energy than you know. And that’s not me being egocentric–it’s just like howyour work is much more complicated and subtle than any outsider ever understands. Your work is pretty miraculous to me, even whenI don’t care for it aesthetically.

So, to have the best relationship with your lawyer, you dont have to like what you hear, but you do have to trust that it isseriously considered, bestadvice, with your best interests in first position.

Oh, and if you don’t think it really is, then don’t hesitate to get a second opinion from another lawyer.
But don’t be surprised ifthe answer is pretty much the same.

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*This is true for all of us–we all have those areaswhere we think we know more than we really do.