First off, this from Laura Resnick. Thanks, Laura!!
—–
Hi Dean,
I was getting so many requests for referrals via private email, I decided to put a directory of literary lawyers on my website. Just posted. These five lawyers can all be considered personal referrals from me, if anyone’s interested. I will update the list as I get more recommendations from friends who’ve dealt with other literary lawyers.
FYI, here’s the links:
http://sff.net/people/laresnick/About%20Writing/Writers%20Resource.htm#Lawyers
Or the tiny URL: http://tiny.cc/gomwn
Laura Resnick
—
There may be others being added onto this list as time goes by. Thanks, Laura, for doing this.
Now I wanted to clear up a few fears some people have about lawyers.
First off, unlike agents, they are bound by rules, very tight rules of behavior. I know lawyers have been made fun of in this area, but they are bound and insured, where agents have no rules they follow, even though agency law puts some rules on them. They ignore them completely and writers have been afraid to take them to court. All of this is becoming even more clear with the trend toward agents become publishers.
Second, lawyers will often take you on with only a small retainer, something like $200. Payments can be set up ahead of time or if you are having an lawyer negotiate a contract, final payment can often be made out of the money coming in. Just set it up with the lawyer ahead of time.
Lawyers are not allowed to take a percentage of any agreement they negotiate. So their fee, often far, far less than 15% is a one-time fee.
Third, you can have a lawyer help you as much or as little as you would like. They can actually do the negotiating for you, or just advice you on what the contract says and what to ask for. You are in control. You do not give that control to a stranger.
Fourth, there are more IP Lawyers coming into the field every day. Laura has five on the list and I know of good experiences writers have had with three of the five. I don’t know the other two. But I do know of a wonderful lawyer who might be joining back into this area of the law shortly.
Fifth, they do not require that they get all your money and your paperwork before you do. In fact, they will not touch the money besides what you give them as a flat fee.
The agent systems is going down quickly.
—Get away from giving the 15% forever.
—Get away from giving a stranger all your money and all the paperwork for that money before you see it.
—Get away from people who wouldn’t know a conflict of interest if it bit them.
—Get away from a business that has no rules or regulations and is known for theft from writers.
Get to lawyers, folks, for help with contacts and other aspects of publishing. Trust me, even the worst joke about lawyers is better than the reality of literary agents in this modern world.
Thanks, Laura, for putting up the reference list. You have just done a great service for this new world of writers trying to take back control of their own careers in one way or another.
Great post, and a great list of lawyers in the link. Any writer who can work out a fee schedule they are comfortable with with these attorneys will be well-served by any of them.
One thing people need to appreciate about using a lawyer instead of an agent is the alignment of interests. Your lawyer looks out for only your interests and has no personal stake in the outcome beyond achieving a desired result for the client. They are not emotionally caught up in the deal, they are not afraid of alienating the other side or pissing them off. They are only concerned with getting their client the best possible deal under the circumstances.
All of the recommended lawyers have years of industry experience and will understand the contracts and the real-world business implications of those contracts far better than most agents.
Fingers, exactly. No emotional attachment at all except to do you a great job. No connection to an editor or publisher at all. No fear of screwing up another client’s deal by doing a hard negotiation on yours. And so much more.
I hope it helps people! But it was mostly a service to =myself=… in the sense that I was getting tired of answering emails about it. (I don’t mean that crankily. It’s a GOOD THING to ask for personal referrals for a literary lawyer. But it was getting time-consuming enough that I needed a better system than individual discussion with every person who sought out this info.) And, in fact, I’m very pleased that it was getting out of hand–I am VERY GLAD that more writers are taking more control of their rights and their career–and, in doing so, seeking the assistance of qualified legal counsel when needed.
Several background details about the directory:
I specifically contacted and ASKED every attorney on there if they wanted to be in the directory, i.e. if they’re taking new clients. So the people listed there have AGREED to be listed there. You may find one of them too busy at any given moment to deal with a new client immediately (so if your case is urgent, that person might not be good for you on that occasion), but they are all taking new clients.
I also spoke to another attorney who was very interested, but too busy at this time to take on new clients. So we’ll talk again later, after several if his current cases are concluded.
I will add other names over time, but ONLY on the basis of personal referral from someone I know. That means some good lawyers will not get on the list; but it’s the best way I know of ensuring I don’t recommend any bad ones–and NOT making a POOR recommendation is that single most important thing to me in this directory, rather than having a lot of names on it. I am very confident about the five people recommended there. Consider them personal referrals from me. They may not all suit you as individuals (and that’s a factor to consider in hiring a lawyer: “Am I comfortable dealing with this person?”), but they are all good resources.
Also, since a lot of people haven’t dealt with a literary lawyer before, I’ve included a couple brief essays on my website, linked to the directory: “Why Should A Writer Hire A Lawyer?” and “Laura’s Advice About Literary Lawyers.” Just outlining the parameters of working with a lawyer, how to choose and hire one, the way such an association typically works, etc. To link directly to those pieces, click here:
http://sff.net/people/laresnick/Excerpts/Lawyers.htm#WhyHire
Finally, I’m asking people not to ask me to recommend ONE of these people in particular. I’m happy to make referrals and pleased people want them, but I’m not interested in matchmaking. Link to their online profiles and see whose self-presentation and background seems to suit your needs. Contact them and see who you find the most informative or the best to deal with, etc. That’s how you choose. I’d have to know the writer and the writer’s problem VERY well (much better than I want to, unless we’re close personal friends) to be able to cherry-pick the right lawyer for any individual from this list.
Anyhow, hope the directory comes in handy for people!
Laura,
Again, thank you!! This is wonderful and perfect and will help a lot of writers. Thank you.
Fingers wroteL: “They are not emotionally caught up in the deal, they are not afraid of alienating the other side or pissing them off.”
Indeed. This is one of the huge differences (as is the alignment-of-interest and the objectivity you also mentioned) that I discovered when I quit working with literary agents and started having my contracts negotiated by a lawyer, instead.
I have NEVER heard from my lawyer certainly key phrases I regularly heard from my agents whenever the agents were refusing a request I made or rejection a solution I proposed in negotiations or business conflicts with the publishers. Phrases such as, “the publisher won’t like that,” “the publisher won’t want to do that,” “the publisher won’t agree to that,” “you’ll make the publisher mad,” “the publisher won’t go along with that,” “what the publisher would rather you do is,” “what the publisher wants is,” “the way the publisher will see this as a good deal is,” “the publisher will consider that too much trouble,” etc., etc, etc.
The closest my lawyer has ever come to saying ANYTHING remotely like all of that is “publishers resist doing this,” and the possibility of resistance has NEVER stopped her from proposing something to them on my behalf. Indeed, now that I have someone strictly protecting -my- interests in the deal, rather than primarily-or-additional protecting his/her own relationship with the publisher and also rather than protecting his/her own effort/income ratio (an agent’s commission doesn’t change on the basis of working harder on the contract, so I’ve always found them frustratingly reluctant -to- work harder on it), I have been AMAZED at how MUCH is negotiatable in a publishing contract and at how surprisingly flexible publishers are when a negotiation is handled by someone who is persistent and skilled–By which I mean, another feature of negotiations handled by agents was that they tended to treat most propositions on a yes/no basis, and as soon as the publisher said “no,” the agent typically treated that request/item/clause as refused-and-finished now. Whereas my lawyer makes counter-proposals… and one of the things I’ve noticed is that when responded to with a counter-proposal… publishers ALSO make counterproposals… and thus you’re not dealing with the inflexible granite monolith which agents had regularly led me to believe was how publishers treated negotiations; instead, now you’re in a real negotiations. And the results have consistently been more favorable to me than my agent-negotiated contracts were.
If you want a contract negotiated, get someone whose expertise is in contract negotiation. Not a laid-off editor or wanna-be writer who decided to try agenting because it’s a job without qualifications or requirements.
Laura and Dean,
It’s like you’re psychic. If such a thing existed in the real world.
I was just thinking the other day about how I’d play it if/when I got into a situation where I’d need an attorney’s services for a contract or something. My answer: email Dean and/or Laura for advice on who the best lawyers in the field are.
Well, that’s one more thing checked off the to-do list. Muchas gracias.
As somebody who was just about to send one of those e-mails asking about this very thing, I have to say that this was incredibly well-timed and will be very helpful. Thanks!
The obvious advantages of professional lawyer over non-professional agents aside, I find that when I talk with the business class about What I Do For a Living, having the word Lawyer in my vocabulary instead of ‘Agent’ is a lot more effective. “Hey, maybe this guy does have a Real Job(tm).”
They read the New York Times. They ‘know’ writers (read: literary types) can’t make a living ‘unless they teach MFA’. But when we talk about our respective small businesses, they see that my writing business is not so different: Work goes in, and money comes out.
I just spend a lot more time alone, inflicting wear and tear on keyboards.
In addition to contract negotiations, btw, problems which my lawyer has worked on, for an hourly fee, and which is precisely the sort of thing I invariably wound up All Alone With when I dealt with agents instead (who, in my experience, were consistently resistant to doing any work that didn’t directly lead to new commission income):
* Assisted me when a publishing house simply stopped sending me royalties or statements, and ignored all my attempts to contact them about this. The agency which had “represented” me in that still-in-force deal -also- ignored all my attempts to communicate with them about this. (Upshot: My lawyer and I got all rights reverted, so that my book wouldn’t become part of the bankruptcy the publisher was evidently heading for (they’ve since disappeared entirely), though the money owed to me was a lost cause.)
* Assisted me when I discovered a major house was e-pirating a book of mine and the publisher ignored all my attempts to contact them about this. (The same agency as above again ignored all my attempts to contact them about this. My lawyer got it all sorted out.)
* Assisted me (and continues to assist me) with my ongoing problems with one of my former literary agents, who has repeatedly neglected to send me paperwork and fiscal statements from old deals, while -simultaneously- refusing to consent to split-payments, which would (please, dear GOD!) ensure that -my- money and -my- paperwork stops going to HIM rather than to ME.
Problems like this emerge all the time in a career. When I was “reprenseted” by literary agents, though, it was always my problem to handle alone. Sometimes agents were openly resentful that I asked them to assist me with career problems that arose; sometimes they expressed polite sympathy, but nonetheless declined to DO anything. I found that the whole concept of the agent being someone who ensures the writer is NOT alone with problems like this was disturbingly inaccurate. It’s is only since I started working with a lawyer INSTEAD that I now actually DO have someone who assists with me such problems–and, like I said, such problems do inevitably arise in a career from time to time.
A lot of good information flowing here.
Here’s another. Once you have decided on a lawyer for problem X ask them what YOU can do to shorten up the billable time. A good lawyer will be sufficiently busy not to want to spend time being a clerk. Anything you can do to make their time more efficient is money left in your pocket. The other advantage is you will only be paying for the lawyer, not the law clerk. Its surprising how little pricing difference there is between the two in some practices.
Lest I come across as putting attorneys on a pedestal, as as one of those writers who believe speak as if their agent is God, spouse, parent, best friend, and Pope all rolled into one…
I think there are two key reasons the attorney-author relationship works so much better (at least for me) than the agent-author relationship did.
One is, as already discussed, the agent has education, training, expertise, licensing, and ACCOUNTABILITY in their professional practice. None of which is true of agenting.
The other is: The role of the lawyer is very clear, very specific, well-defined, and distinctly limited. While it is a role that requires training, expertise, etc., I think these specific, clear, finite parameters also make it MUCH more feasible for someone to fulfill this role well.
I think, by contrast, the role of literary agent is too broadly defined, also too vaguely defined, contains far too many expectations, has far too many gray areas, is too reliant on individual character and circumstance and moodswing, is too reliant on individual interpretation and rationalization, and is too heavily based in leap-of-faith trust between people who, in fact, scarcely know each other. I’ve come to the conclusion that these are inherent flaws in that just make it a poor business model for most writers most of the time–and certainly for -me-, at any rate.
I find it much easier to work well and get satisfactory performance from an associate in a situation where the role, services, and expectations on both sides are so clearly and consistently defined and exercised.
Laura, all excellent points. Here’s what I would tell anyone looking at a book contract: Nothing ends up in a contract on accident. Every clause has a purpose, and if the person representing you cannot explain what that purpose is and where the various negotiating points are in each clause, that person is not fit to represent your interests. The answer should never be “that’s just the way publishing works” or “all book contracts have that.” Those are non-substantive cop-outs. Lawyers won’t give you those kinds of answers. They should be more than happy to take the time to walk you through what everything means, because it all means something.
And, as you said, it’s all negotiable. But you can only negotiate what you understand.
I wrote some helpful hints about getting over the intimidation factor when hiring an attorney in a comment to Kris’s column last week. At her suggestion, I’ve turned it into a blog post:
http://anniereed.wordpress.com/2011/08/01/lawyers-are-just-people-too/
I hope this helps.
Thanks, Annie. Great post. Read it, everyone.
It took me too long to part with agents and go with an IP attorney, but I finally made the move about a year ago.
I like many things about an IP attorney, including the fact that they don’t get 15% for life, but you know what I like best? They listen to me. An IP attorney does what I want done, the way I want it done, and doesn’t try to get himself a better deal. He knows what he’s getting paid upfront, and he works for me.
Too many agents seem to work for themselves, rather than for writers they represent.
An IP attorney puts me fully in charge, and does so without arguing. He works for me. I pay him, not the publisher, and it makes a huge difference. This, I think, is where the real difference lies.
Spot on the money, James. An IP lawyer works only for you, and that is a HUGE difference. They don’t have other clients to worry about with the same publisher, they don’t have relationships with editors, they just do as you ask. It is one of these “duh” moments for me as well. Realize, folks, I went to three years of law school. Yet when I came into publishing I thought nothing of giving an untrained person the right to negotiate for me, the right to negotiate contracts, and all my money and paperwork. The myths in this business are strong and with this huge change going on in the industry, it’s time we clean out some of the more insane myths. And trusting a stranger who doesn’t know contracts to negotiate for you is just about as insane as it gets, right up there with giving them all your money and paperwork on that contract and then letting them decide when you get money.
Three years of law school and I went right down this myth as well for almost 20 years. Now, seven years without an agent, I am selling more. And having a ton more fun.
As someone who spent quite a bit of time on the Dark Side of the Editorial Desk — both as editor and as counsel — and has dabbled in more than a few publishing contract issues (I’m scanning old files as I write this to avoid buying another four-drawer filing cabinet before a planned move), I’d like to point out another difference between agents and attorneys:
They inherently have different skillsets.
As a group, agents are vastly superior to lawyers as salespersons, particularly through making and exploiting personal connections. (Well, except the kind of lawyers who end up in politics, but you know what I mean; there’s something about actually understanding the Rule Against Perpetuities and equitable tolling that makes it impossible to be an effective salesperson.) Never ask a competent lawyer to be a lawyer while trying to get an editor’s attention with a manuscript: If the lawyer is actually following the ethics rules at that moment, the disclaimer will put the editor to sleep, and you don’t want a lawyer who isn’t always following the ethics rules.
As groups, agents and lawyers are about equal in effectiveness at face-to-face negotiation in order to reach an agreement in principle. There’s not that much difference between what an agent will get you for an advance versus what a lawyer will get you for an advance. If all you care about is the money, there’s not much difference. But if all you care about is the money, you’re not reading this blog.
As groups, lawyers who specialize* in literary properties are vastly superior to agents at dealing with the non-numeric gotchas in publishing contracts. It’s not that agents are inherently stupid (a few are), or inattentive to detail (a few are), or arrogant about how powerful they are and how that means they can ignore the details of the contract (disturbingly more than a few are); it’s that agents can’t see the unexpected stuff so easily. Consider the nameless agent who allowed a definition of electronic book in contracts she negotiated that also included audio rights, even though she thought she was reserving audio rights; or the agents who think that a bankruptcy-reversion clause has any meaning whatsoever; or the agent who did not catch that the publisher was taking ownership of the author’s natural name as its own trademark, and thereby tying that name to the publisher forever.
I’m thoroughly in favor of authors who intelligently supplement their own skill sets with appropriate expertise from licensed professionals. (Agents are not licensed professionals… but they do have some helpful skillsets, especially if — like me — you’re one of the three worst salespersons in the Western Hemisphere.) The caution that I’d add, though, is that a lawyer cannot, and ethically will not, do long-term business planning for you; you need to tell the lawyer what that plan is so that he/she can tailor contracts to your needs, not the other way around.
* Yes, using the word “specialize” (or any other form of that word) is technically an ethics violation (really). The constipated old white male insurance-defense lawyers who created that unenforced rule while believing that a public that understands what a “special team player” is in football won’t understand that “specialist” doesn’t necessarily mean certification by the bar can bite me.
Thanks, C.E., great points.
But only one quibble I have. Agents don’t have a lot of skill sets these days. Most agents I know are afraid of selling anything these days for fear of messing up a relationship with an editor. Thus books that used to be completely publishable are not getting out of an agent’s office. So I slightly disagree. A salesperson has to want to sell something. Agents now don’t even try unless the book is “perfect” for their editor friend. Ten years ago I would have agree with you on this, CE. Now, I think a writer is the best salesperson of their own stuff.
And I don’t agree anymore about agents and lawyers as groups being equal effectiveness in negotiation. Agents have far, far too much baggage with the other side and thus will give away deals that they should fight for their client, where a lawyer will not do that. So that I disagree with completely. Maybe ten years ago they might have been equal. In this new world, agents work basically for publishers. And that hurts writers all the way down the line.
Thanks for the comments. Great stuff.
I’ve already done a post on this on my blog (a drive-by posting, since I need to get back to fiction writing). Great stuff here!
And a hearty thanks to Dean, Laura, Kris, and Annie. Thank you for all you’ve done to help us.
You can also fire a lawyer if you aren’t getting the results you need because you aren’t bound with representation for the lifetime of the book. With the nearly infinite shelf-life of ebooks, this is going to be vital. I’m noticing authors are dealing with books they wrote long ago more and more, and that trend will probably continue. On one hand, you aren’t as good as just your last offering; you’re as good as the weakest story in your digital library because nothing goes out of print and out of the reader’s sight. On the better hand, older books can still bring in cash, which is always good for slower months on the newest books.
I enjoyed working with my lawyer for my stepson’s custody case, oddly enough. Once my book is published and earns out, I will probably put an IP lawyer on retainer just for that rainy day when I need legal advice.
Elizabeth, yes, a huge advantage. You can fire a lawyer. One writer just fired an agent and the agent threatened to sue her. Stunning. But shows how really silly and desperate agents are getting these days. With a lawyer, if it’s not working out, you just say thanks and walk away. They have no “interest” in your work. That’s a wonderful plus for lawyers.
I’m not much for raising my head in the business scene among writers, but I was intrigued when Barb referenced this topic. It is becoming of greater concern to writers at all levels of the industry. But along with the pros and cons, one comes to me instantlyr (which may have already been mentioned elsewhere).
When you use a IP lawyer, that individual is negotiating a deal based on the product or products to be contracted to the specific publisher. Therein is a hole in the work that has to be done for re-sale of the same said product. A good agent or publisher or both is responsible for seeking out that resale, namely foreign rights. Unless you are prepared (and capable) to do that work yourself and have the resources necessary, then an IPL is not going to be any help in this.
Among the writers I know who are truly working on their products full time (not selling them but creating them), they do not have the time to do this nor the time to cultivate the necessary resources. On the other hand…
Of the foreign (re)sales of the books I work on, 3 of 6 occurred from non-USA publisher contacting me, and then I would forward them to the appropriate representative(s). 1 of the 6 was a spin-off of a previous foreign rights deal, and 7th occurred in once country where a previous deal didn’t work out. So only 2 of 6 (or 7) came about by any effort of the foreign rights holder, and likely those occurred based on the foreign publisher seeking out the primary foreign rights holder and not the other way around. In other words, having an agent and publisher isn’t always going to be and active/productive influence upon gaining resales for any product.
For some, the issue of foreign rights is not of primary concern; for Barb and I it is. At a guess, since I don’t have figures handy, its a notable source of income if not sizable.
There are hidden downsides to not having full time representation for all dimension of the products a writer produces. They are sizable ones for those who know what it is about. This is something to keep in mind as a counterbalance when looking at any new business paradigm in the writing/publishing industry. I’m not saying its a deal breaker for changing your ways, but it might save some unpleasant surprises if you think about it. I’m simply saying that the IPL route has some missing parts, and strategizing ahead of time to be fully prepared to make up the difference yourself will save you from a dumb-struck shortcoming after the fact. To jump off the agent-publisher marry-go-round, you will need to think of the worst, of what is or will be missing that falls in your lap alone, and then you’ll make the step with much surer footing. This is not about arguments against the step, it’s about making the step with eyes wide open. And that has not always been the case in actuality or discussions.
J.C., maybe ten years ago I might have agree with you. But wow have things changed. Kris and I make a ton more overseas and Hollywood and audio and gaming deals WITHOUT an agent in the mix then we ever did with an agent. It becomes clear that all small deals were just getting turned away by the agents. Not even presented to us, where getting $800 from a translation deal in Italian is good by us. It wasn’t worth the (two) agents’ time.
And I am afraid that most agencies, except for the large ones, have no overseas sales divisions. They work with either another agent here who then works with agents in each country, or they do nothing. Nothing is the norm. So your point about agents can help you get more deals is just flat wrong I’m afraid. The nice world of electronic publishing and e-mails allows any writer to work with any publisher anywhere on the planet without a string of agents in the way.
And yes, you are right that a lot of deals some through your publisher. In fact, most do.
For me and Kris the issue of foreign rights is a MASSIVE concern, not just a primary concern, because there have been years lately where we made more money overseas or in other secondary rights than we made direct to traditional publishers.
I agree that a writer who doesn’t like to be “taken care of” by the agent myth must be pretty solid in stepping away from the myth of agents. No doubt. If you are the type of person who likes to always be take care of, you might want to get some help besides an agent. But for those of us who like to take care and responsibility of our own business, having an overseas publisher come directly to us is wonderful. The contracts are simple, everyone speaks English, (needed for me since I have such a poor grasp of other languages), and they are very friendly.
Plus, interestingly enough, they pay royalties. Never have Kris or I every managed to either get a royalty statement from any overseas publisher through the two levels of agents, let alone payments. But suddenly, without the two levels of agents, we get money and statements. Wow, what a stunner. Wonder where that money was going all those years? Certainly not to us.
And by the way, on this topic, overseas agents are far, far worse on ripping of US writers than even US agents. We have been stolen from by two major US agents and all of it concerned overseas money.
Anyway, J.C., not sure exactly what you point was. I agree that if a writer gets away from the mentality of “take care of me” that agents push, then they must take responsibility of their own career. That I agree with. And I agree that overseas and other sales outside of standard advances from domestic publishers is critical. And can be done better without an agent or agents in the mix.
And I think it is much, much better to have a negotiator who is only focused on the deal at hand and doesn’t have baggage with the publisher or other clients.
Thanks for the comments, J.C.
“Lawyers are just people too” I wholeheartedly agree, we tend to forget that we all deal with fellow human beings, and not some robot out to get us. Or worse the writers that believe Agents and Publishers are near deity. No. We all are humans. That is what I say to myself when I approach the flowerlady to buy some flowers. Yes for some reason I fear florist! Don’t tell!
I’ve always wondered why writers weren’t represented by lawyers (as opposed to literary agents), especially when I realised that agents were indirectly being used as a filter by publishing houses… In which case, the loyalty of the agent could be questionable if push came to shove (ie it benefits them to get the sale to the publishing house no matter what – and thus receive their commission – as opposed to safeguarding an author’s interests fully).
It’s good to see a post like this. The legal profession has its ups and downs but lawyers are definitely regulated more strictly than literary agents are, and there really is absolutely no conflict of interest whatsoever between their interests and the interests of the author they represent. It’s a fairer and perhaps more level playing field when the person going to bat for you in negotiations is looking out purely for your interests. It might mean that negotiations could turn more hostile because the other party (publishing house) might find it harder to get what they want, but isn’t that the point of being represented by someone? To get what YOU want out of a deal, even if it’s not what the other party wants? What’s the point of getting a deal if the contract bites you at the end? Unforseen circumstances crop up in life and publishing all the time (esp in current times). And every single clause in a contract really is there for a reason. A clause may sound vague/straightforward to a layperson, but certain terminology in contracts has consequences in court that can bind an individual’s rights more viciously than they realise…
Am not trying to say that all literary agents wouldn’t look out for their clients’ interests as well as lawyers would btw, but I think the potential for abuse is higher with unregulated agencies than it is with the legal profession. Oh, and yes, that one time fee system sounds good:) Good to see the benefits writers could get from consulting lawyers has been articulated so clearly.
And am off to read Annie’s post now…
Dean wrote: “But only one quibble I have. Agents don’t have a lot of skill sets these days. Most agents I know are afraid of selling anything these days for fear of messing up a relationship with an editor. ”
I agree with Dean on this one, C.E.–in my case, due to the triumph of experience over hope. I have experienced time and time again that literary agents refuse to send out books that, when -I- send them out, sell; that literary agents abandoned a project after 1-4 rejections, which -I- then sell by sticking with it; that literary agents whom I queried over the years, as well as those who were representing me at the time, declare projects unsaleable which -I- then sell on my own; and that my advance levels actually =increased= and my waiting-time on submissions (and payments) actually =decreased= when I shed literary agents from my career and started submitting and selling on my own.
Yet I would certainly not describe myself as a salesperson. I would say that my ability or talent at sales is average or below-average, and that I’d be disastrous at a sales career. (I’ve got sevreal friends who are very successful in sales, and their way of operating is something I admire and couldn’t emulate. It’s not in my personality.)OTOH, I -am- competent, resourceful, and persistent–and I have experienced time and time again that those qualities have made -me- more effective at selling my work than my four former literary agents were (and also more effective, it would seem, than various agents I’ve queried who looked at my work and considered it unsaleable)… So I am VERY skeptical about the description of literary agents as being good at sales.
Some of them certainly are. In much the way that some of them are no doubt natural blondes. IOW, statistically, it seems likely that there are bound to be some literary agents who are very good at sales. But my own experience is that it’s NOT a common trait of the profession–it’s just -supposed- to be a common trait of the profession.
Having said that, though–a writer who is NOT resourceful, persistent, and competent at business would be at a serious disadvantage in self-representation, and should therefore probably put real effort into finding a good agent. THere is no one-size-fits-all answer for how to run a writing career, and if “you” (generic “you” here) are the sort of person who will give up on a bok and never send it out again after 1, or 3, or 5 rejections… probably you should NOT be handling your own sales.
Dean wrote: “You can fire a lawyer. One writer just fired an agent and the agent threatened to sue her.”
Yes, the ill-defined complexity of agent-author relationships often leads to VERY hard feelings when the author leaves.
One of my former agents threatened to sue me, too. The threat was in the context of an angry, accusatory, personally insulting letter that the agent sent in response to my (yes, really) courteous and professional termination letter. WHY was the agent threatening to sue me? I have no idea. Apparently just because I didn’t want to be a client anymore. There was another agent (no longer around) who was notorious for threatening to sue EVERY client who left; every one of them. (The agent subsequently became the target of multiple lawsuits from clients, btw, for mishandling of monies.)
The only agent who ever IMMDEDIATELY got out of my life and left me the f**k alone after we parted company was the one who dumped me. Bless him! The three that I fired kept messing with me (one of them is STILL messing with me), causing me no end of headaches and irritation after I left–including, in two cases, also causing me legal bills.
Getting rid of a lawyer is SO much simpler. You just pay your outstanding bill and GO.
C.E. wrote: “As groups, agents and lawyers are about equal in effectiveness at face-to-face negotiation in order to reach an agreement in principle. There’s not that much difference between what an agent will get you for an advance versus what a lawyer will get you for an advance. ”
I can’t address the advance thing, since I negotiate my own advances. And even if I paid my lawyer to negotiate the advance for me, I would be the one determining the sums–and I frankly think the main reason I’m getting better advances on my own than my agents got me is that I ask for more than they did. (In truth, I have found that getting the money I want, and also getting an offer raised, isn’t =nearly= as difficult as my various agents claimed money negotiations were.)
But in terms of face-to-face negotiation to reach an agreement principle on anything -else-, I have to say that I have so far found my lawyer FAR more effective in this regard than my various former agents were. Quite apart from the fact that my lawyer asks for a lot more (both her own legal recommendations and the things that -I- want in a contract), one of the key things I’ve noticed is that this is just someone with -better negotiations skills- than my various literary agents possessed. he is calm, courteous, civil, unemotional, persistent, creative, and very resourceful in negotiations. It has really shown me that negotiation is not, as I believed when working with agents, a mysterious talent, but rather a learned skill… and that the SKILL level of reaching an agreement principle in hands-on negotiations was, I now realize, pretty poor in my various literary agents; and noticeably much better in my lawyer.
C.E., I am with Laura on this one. Of the five different agents I have been close to either with me or Kris, a lawyer, even just a mediocre one, would have been a thousand times better negotiator than an agent. My agents gave away things in agreements that just had me shaking my head. Even not a lawyer me knew better and got them changed when I pushed. And I had one agent who didn’t bother to even read the contracts because they were “media” contracts. Sometimes an assistant read them, and I sure read them carefully since I was signing them. But my agent never read a one. And never asked for a change. I did, often, but my agent never did. Why did I keep the agent in question? Simply because I was into the agent myth and also I wanted someone to chase the money. But I don’t need that anymore either.
(1) Alex: I resent that. Cartilaginous ichthyoids are apex predators, not mere humans. (Note to the humor impaired: Yes, that is tongue in cheek.)
(2) Dean: I don’t think I was clear enough on something; perhaps I should have said that agents and lawyers are, as groups, about equally ineffective in reaching agreements in principle, for somewhat different reasons. (They may still be more skilled than a particular author in question, if only due to the problems with setting a fair price for one’s own child as opposed to for the neighbor kid.) Agents, as a group, are better at negotiating for bigger (multibook) transactions and in long drawn-out proceedings, auctions, and that sort of thing. Lawyers, as a group, are better at making sure that what the publisher gives with one hand it doesn’t grab back with the other, at the broad level of agreements in principle. It tends to work out about the same in the long run; they each produce a flawed process, but probably fewer flaws than a neophyte author would him/herself… if more flaws than you would garner.
Your other (first) point depends a great deal on who we’re including among “agents.” For a certain proportion regardless of definition, you’ve got a point: They’re living in the past/on reputation/on connections/on Pluto. That’s true even among AAR members; I could name half a dozen AAR members I wouldn’t want handling my garage sale, let alone my intellectual property. If one expands beyond AAR members, though, the proportion that fits your dismissive description becomes disturbingly high. So I have to concede that what you’ve described is a concern; I was merely trying to contrast a skill set that an agent is supposed to have with a skill set that lawyers, almost uniformly, do not. It’s sort of like comparing the marksmanship of trained infantry soldiers with that of avowed pacifists… and if you know much about actual marksmanship in the infantry (hint: it’s the most realistic aspect of Star Wars), you’ll understand the wryness I’m trying to invoke…
C.E., the clarification I would certainly agree with is that marketing/selling a book is NOWHERE within the lawyer’s job description, nor should any client ask or expect it of the lawyer. So whether or not the lawyer has sales/marketing skills (and most likely, no, the lawyer does NOT) is a moot point, since the subject has no business entering into the author-lawyer relationship. An author who is either unwilling to submit and sell (or constitutionally incapable of submitting and selling) his own work should definitely NOT seek a lawyer as the solution to -that- particualr problem. In much the way that you don’t go to the dentist when your problem is that you need glasses.
Nor should any client ask a lawyer to give him career-planning guidance, discuss publishing market trends (though my does certainly DOES discuss publishing -contract- trends with me), evaluate or edit a manuscript, or discuss what advance sum a book is “worth” (which is a market question, not a legal one), intervene in a dispute with the editor about the strictly editorial matters (ex. “your” editor thinks your protagonist is a tedious jackass, whereas you think your editor is a tedious jackass).
OTOH, if “you” and your editor can’t come to an agreement about the MS, and you don’t want to write a whole ‘nuther books as a replacement MS (which one or two of my friends have done to rescue such a situation)… your lawyer can look at your contract and tell you clearly and accurately what your contractual options and obligations are now… and will do so =without= the pressure that your agent might place on you in order to serve his own agenda (i.e. not damage his relationship with this editor or publisher; not put him in the position of trying RE-sell the book elsewhere, which he may not feel like doing; not put him in the position of telling you that he refuses to repay =his= share of the advance money that you’ll have to pay back to get out of the contract, so you’ll just have to go deeop into the hole over this mess wherein his editor-pal to whom he sent your MS turned out to be a jackass, etc., etc.). A lawyer will just explain that under the terms of the contract, here’s what you must and must not do, and what you can and cannot do.
I looked over the list of IP lawyers Laura provided (thank you, Laura!), and then browsed their websites. One of the firms (the top one) refers to itself as an “Attorney & Literary Agent” which seems to me to be somewhat worrisome. I’m not understanding that kind of hybrid operation.
Lee, actually a couple of agents who are lawyers are moving to being more lawyers than agents. Not sure how Elaine’s path went, but so far four or five on the main workshop list have used her for just lawyer stuff and she was great.
I would imagine it’s just a full-service kind of thinking for those who want to be taken care of more, so an agent aspect can be brought in. Or it just might be a title and not much else. At least as an attorney, she knows what is possible under agent law and what isn’t. (grin)
Thanks Laura and Dean for your referrals to Elaine English. She helped me with my first romantic suspense series sales (coming out from Sourcebooks in the spring -shameless plug). She was great. We had an initial interview about attitude, aptitude, and service types, then we simply got down to business. Her communication was timely, clear, and she was more than willing to explain details of clauses I was unclear on.
You can find some details of it on my blog at: http://www.mlbuchman.com/?p=12
And regarding my final comment about agents… Almost a year later, and I still have trouble imagining why I would use an agent, ever.
Lee wrote: “One of the firms (the top one) refers to itself as an “Attorney & Literary Agent” which seems to me to be somewhat worrisome. I’m not understanding that kind of hybrid operation.”
Lee, that’s my lawyer. I asked her about it when I hired her, since I wanted to be SURE there would be no crossover and no attempt to turn me into an agenting client, etc.
What she about it is that, after years of being a literary lawyer, she was looking for an additional challenge, since she knows contracts so well now. So she decided to devote -part- of her professional time to being a literary agent.
I’ve been her legal client for about 4 years. I know absolutely nothing else about her literary agency (except that it’s small and not currently accepting clients). The subject has never come up. I do know that she’s specifically a romance-and-women’s-fiction agent–but I also know this appears to have no effect on her behavior as a lawyer. She was very conscientious in handling my legal problems with a major romance house (and, in fact, told me she thought I was letting them off too easy–but I was sick to death of them and just wanted to get them OUT of my life; and pursuing further legal action would have kept me involved with them for much longer); and although I can’t say more than this (it’s not my story to tell–it’s the story of a bunch of my friends) she is currently handling a huge problem for a large group of romance writers viz one major romance program (one of them told me the other day that her intitial salvo in the legal dispute was “kick ass”).
HOWEVER, having said that–if you feel incomfortable with that combination of professional hats, don’t approach this lawyer. Your position is not unreasonable, and if it IS your position, then own it. There are other excellent choices on that list and no reason whatsoever to make a compromise about which you feel uneasy. If I were unfamiliar with Elaine when I needed an attorney, perhaps I’d have felt the same. As it happened, I was very familiar with her reputation and had known about her for years, because she had worked with quite a few friends of mine. I felt pretty comfortable anyhow; and more so after I asked her about the agency wing of her business,
The main thing to know is that, in my experience, I would honestly never even know she also does some work as a literary agent if I hadn’t looked on her website. In terms of my relationship with her as a legal client for 4 years, the subject has never come up (except for the time -I- brought it up).
Thanks, Dean. Ms. English is located in the DC area which is a big plus for IP issues like trademarks, copyright, etc., but when I saw “…& Literay Agent,” it gave me pause.
I wasn’t talking about detail-level negotiations, where lawyers (as a group) are supposed to be superior. When it gets to questions like “How are we defining ‘out of print’, and is reversion automatic or on demand?”, trust the lawyer — that’s the lawyer’s expected area of competence.
What I was referring to was the ability to reach a general-principles agreement — “OK, three-book deal with an option on the fourth for a $100k advance with a 36-month delivery window.” Lawyers have a disturbing tendency to jump into the details before it’s time to consider the details… like when the author wants a $125k advance and the publisher is still saying $50k. It’s a different weakness than that typical with agents in reaching agreements in principle, especially in serious nonfiction and hoity-toity archly “literary” fiction… but detailing how would start getting into client issues, live litigation, and some really appalling misconduct.
Thank you so much for the lengthy reply, Laura! You’ve specifically answered the uncomfort I had about the combination. These days, it doesn’t hurt to be a bit wary. It was more the unexpectedness than anything else.
One legal ethics caution:
“Lawyer and agent” is technically what’s called a “multidisciplinary practice” — just like “accountant and tax attorney,” or “real estate broker and commercial real estate lawyer.” This can be a real pain in the butt.
Washington, DC — where Ms English discussed above is — has well-developed, tested, robust rules on multidisciplinary practices. Lawyers engaged in them have a good idea of what’s allowed, what isn’t, and what’s grey.
New York, however, does not. Not only has the state bar punted the issue more times than Our Gracious Host has railed against publishers underreporting and withholding royalties, but New York just completely changed its attorney ethics rules last year (joining almost all of the rest of the country). In short, the rules on multidisciplinary practices in New York are very much in flux, very much un/underenforced, and so grey that a leading authority on legal ethics refuses to discuss multidisciplinary practices in New York, even though that’s where he teaches!
More disturbingly, several “famous name” old-line New York agencies have been purchased by lawyers after the deaths of their respective founders over the years, and I could not in good conscience refer my worst enemy to any of them, even if that enemy specifically dared me to do my worst.
Now this is not to say that no New York lawyer (such as Mr Wolf from Ms Resnick’s list; he’s done good pro-author work) is appropriate; it is only to say that one must be extra cautious with New York-based lawyer-agents combinations, because the rules are quite unclear. And putting lawyers into situations with unclear rules… well, just remember that there are only three lawyer jokes — the rest are all true.
Also–and please note, this is sheer speculation on my part–I think lawyers with publishing-law expertise were probably less in demand a decade ago than they are now. My impression is that the legal practice of EVERY lawyer in my directory has gotten busier since I first learned of these individuals 5-15-20 years ago.
Back then, I didn’t know anyone who worked without an agent or who used a lawyer instead of an agent. Now, it’s increasingly common. Back then, I knew very few writers who’d enter a legal battle with an agent or publisher, rather than just roll over. Now it’s more common to fight back. Back then, I hardly knew any writers trying to get their rights reverted by publishers, because most writers considered their old rights not worth anything. These days, writers are entering into legal battles with publishers over those rights, because they ARE valuable now. Back then, fewer writers knew their rights or had any idea how to find a literary lawyer; now, thanks to the internet, anyone who WANTS to learn their rights as a writer has that opportunity at hand, as well as online access to information and assistance.
All of which suggests to me that a lawyer in this field is probably busier today than was the case a decade ago.
Laura,
Wow, I hope you are right on all that. I would love the fact that writers started standing up for themselves. Great trend. I love it.
C.E. wrote: “What I was referring to was the ability to reach a general-principles agreement — “OK, three-book deal with an option on the fourth for a $100k advance with a 36-month delivery window.” Lawyers have a disturbing tendency to jump into the details before it’s time to consider the details… like when the author wants a $125k advance and the publisher is still saying $50k.”
This is something I have no experience with, in terms of lawyers’ skills, since -I- do that part of my negotiations. I contact my lawyer AFTER the publisher and I have agreed on the advance sum, how many books, and the deadlines.
Thanks for the clarification, C.E., about geography viz multidisciplinary practices. I had no idea!
To further clarify, none of the NYC-based lawyers in my directory have multi-disciplinary practices. One or two of them (such as David Wolf) teach a class at a law school in addition to their legal practice, but none of them practice as literary agents.
Wolf, btw, as you can see if you click on his profile-ink in the directory, is the lawyer who represented a bestselling writer last year (and won the case) when her former agent sued her for “his” commission on a deal she made TWO YEARS AFTER firing him.
If anyone’s interesting, I’ve blogged today at the Ninc blog about the conflict of interest that arises when literary agencies decide to generate profits by self-publishing their clients:
http://www.ninc.com/blog/index.php/archives/literary-agents-self-publishing
I’ve been on the editorial side, as well, and from my experience, agents, even the best of them, have no very little power as a salesperson.
What the few really good agents out there have is the ability, and the track record, of finding books that will sell. The material sent in by such agents is read by the highest editor in the house, and if she likes it, is passed on to an acquisition board. But even the best agents get a bunch of “Thanks, but no thanks” when they submit material by new writers.
The material sent in by the great majority of agents is treated no better than slush. I’ve spent too much time reading such slush the last few years. I didn’t even know what came from which agent. The publisher sends me manuscripts, and I can say no to any of them. Only when I really like one does it go to the acquisition editor.
Books do not sell because an agent is a good salesperson, but because the book itself shows promise. Enough to convince some very tough-minded, market-oriented people that it will turn a profit.
In fact, the biggest complaint I have as an editor, and the complaint I hear most often from other editors, is that agents, even the best of them, seem deathly afraid to submit anything really new and different. They simply don’t want to spend time and energy on a book that doesn’t seem like a certain sale. This keeps an agent in the black, but means just about everything editors receive is same ol’, same ol’.
Publishers can only publish material they see, and since agents have become the gatekeepers, all publishers see is whatever agents think they should see. This is one of the failures of the current agent system.
I’m the first to admit that many self-published books are horrible, but one big strength of self-publishing is that anything can be published and distributed, including material an agent, or even a publisher, would be afraid to take a chance on because it is so new and different.
James, I agree completely. Sales skills have little to nothing to do with selling a book these days. The book and the topic of the book and the quality of the storytelling (not writing) are what sells the book. Agents can only screw it up and get in the way. That’s why I tell all writers to ignore the guidelines and just go direct in one fashion or another to editors who can buy the book. Why put a step into the process that can only stop you or hurt you? It just makes no sense to me.
I have said this over and over and over, but of the over 100 novels now I have sold to traditional publishers, not one of them was sold by an agent. NOT ONE.
That means my first novel did not sell with an agent. And not a one since. I know people ignore that and think they should have agents in the middle of everything, but why???? They can only hurt you these days, folks. Run, get an attorney to help with the negotiation and contracts. Work with your editors directly. Or indie publish.
James: “In fact, the biggest complaint I have as an editor, and the complaint I hear most often from other editors, is that agents, even the best of them, seem deathly afraid to submit anything really new and different. They simply don’t want to spend time and energy on a book that doesn’t seem like a certain sale. This keeps an agent in the black, but means just about everything editors receive is same ol’, same ol’. ”
James, I am SO GLAD you shared your views on this from the editorial side. (I also invite you to contact me privately at laresnick@sff.net if you’d be willing to write a post about this as an industry guest on the Ninc blog. Every Wednesday, we host a non-member who works in some capacity in-or-related to publishing. Entirely up to you, but I would love to see you discuss this same issue on the Ninc blog.)
Certainly my own experience is that one of the most time-wasting, frustrating, income-impeding, and career-damaging aspects of working with literary agents was their reluctance to send out my work. The series which has so far been most lucrative and successful for me… is a project I couldn’t ever get an agent to send out, not the ones who worked “for” me, and not the ones I queried after leaving them. And yet when -I- sent it out… I got offers within weeks.
I also wrote a book several years ago which was a Rita Award finalist (those are the RWA awards) for Best Contempory Romance of the year (I lost to Nora Roberts) with a novel which DearAuthor.com named last year as one of the 100 best books in the genre. It’s currently my best-earning self-published backlist ebook. Yet it’s another project I could never get an agent to send out. (Well, no, actually, -I- researched the market, -I- came up with the submissions list of editors, and I talked my then-agent into sending out. After a few rejections, that agent balked and insultingly castigated in a highly-personal, highly-offensive 3-page letter–which was when I knew it was time to start packing my bags. Other agents declined to handle that project thereafter, saying things like, “Women don’t want to read this.” And so on and so forth.)
On the final-ever round of agent queries I ever made, back in late 2006, one of the rejections was very classy, but the rest were snide-to-rude (one young agent, for example, declared that a well-reviewed published novel I had included in the package would really have benefitted from -her- editing… er, never mind that a respected senior editor with 25 years experience had edited it), and most of them declared both submission projects in my submission package were unsaleable.
I sold one in a $75,000 deal about 8 weeks after receiving those comments. Another editor didn’t want to get into a bidding war, so instead asked to meet with me in person to discuss what else I was working on and “how to get you under contract here” because that “unsaleable” proposal had made such a good impression there. Needless to say, this was an EYE OPENING experience for me. Yet another editor approached me out of the blue and made me an offer on something else a year later. I’ve been writing for good advances as fast as I can ever since getting agents out of my way. I’ve never even submitted the second “unsaleable” project in that 2006 package, because I’ve been too busy selling and writing books to get to it. But I really want to write it, and I WILL get to it… and I consider the fact that multiple agents declared it “unsaleable” not only completely irrelevant… but probably a sign that it’s good, fresh material which I can sell for a good advance.
I have recovered from my own recent agent debacle enough to feel amused by the fact that there is a “profession” out there which makes lawyers look good. (I am a lawyer!)
This post is to say once again what an incredible service all of you are doing in posting your experiences so that others like me can see them. All this information told me I was not alone, that my experiences were not unusual or somehow my fault.
Reading the comments following the Knight Agency and Bookends agency decisions to turn publisher makes me think that a few of you here have literally started a revolution by empowering writers with all this information.
Thanks again.
Thanks, Teri, for the kind comments. I figure the more writers understand, the better off all writers will be, including me. (grin)
Isn’t it amazing how those of us with legal training still just dive into the silliness of agents in this business without thinking? A lawyer friend of mine just used to shake his head at the stupidity of it while I was buried inside the agent myth, yet I was unable to hear him. The thought and myth of having an agent is so powerful, it trumps years of logical business training and three years of legal training. No wonder most writers can’t escape that myth of needing an agent to take care of them.
Hope you have now escaped back to the reality of the world of business. (grin)
I have, Dean, thanks. The rights for my out of print book have reverted to me, and I’ve contacted the artist who did the cover asking if I can have permission to use her art work when I reissue my book. I am busy at work with my book to be published next year, and learning to be my own agent. I’m also writing.
I didn’t believe I had a choice. I thought I HAD to have an agent because I believed those form rejection letters that said ‘get an agent.’ Most of the writers boards say ‘get an agent.’
During the year or more I knew my agent was lying his head off to me, I didn’t say to my husband, “I want a better agent,” I kept saying, “I wish I could do this myself instead of going through an agent.”
I wanted to quit because it seemed so absurd, but I honestly didn’t think I had a choice.
About why the myth is so powerful:
I was hanging out on the writers boards over the past few years when a new writer among us landed an agent, did a year of revisions at his request, and then had him sell the book for a half million dollars. Then he sold rights all over the world and sold movie rights. (If I said the name, you’d recognize it.) She’s a very rich girl right now. Her book will be published in the next few months.
All the new writers watched it happen. Now, how do you tell new writers that sitting and waiting for that to happen to them is the equivalent of buying lottery tickets instead of going to work every day?
Teri,
Impossible to tell any new writer otherwise, even though the agent had NOTHING to do with the sale of the book. The writer, with a little belief in her own work, could have mailed the book directly to an editor, the editor might have suggested the same revisions or maybe better ones, or left the book alone, and it would have sold for the same amount. Writers never think to give credit where credit is due. Agents don’t sell books. Good stories sell themselves. All agents do is help scared writers get good stories into the right hands, the exact same thing a writer can do for themselves and not get charged the 15% and all the problems.
So yeah, watching an agent do that to a new writer and have luck is like winning a lottery. What bothers me is the rewriting. How many agents will screw up a great book with rewriting? Far more than they will help that’s for sure.
It just makes me sad that agents get and take credit for such sales when in reality it had nothing to do with them. The writer could have gotten the same deal with a good IP lawyer. Maybe a ton better BECAUSE THE BOOK WAS GOOD ENOUGH TO DESERVE IT.
Good storytelling sells. Nothing else.
P.S.
The myth is powerful for lots of other reasons, too. It’s nice to feel there’s someone in your corner. Also, it’s hard to read the daily postings on Publisher’s Marketplace and not feel dazzled by the things an agent can do.
It was only when I read every word on this website and people like Laura that I truly understood enough to find the courage to strike out on my own. For example, another thing which is explained to writers by the major writers boards is “an agent with any clout can get you a quick response from editors.” When I sell my own books, it takes about a year. Then I read the discussions in these comments from folks like you and Laura and learned that waiting a year to sell a book is fine as long as you’re not just sitting around waiting– you have to keep on writing meanwhile.
T.
Teri, what people don’t know about those listing on Publisher’s Marketplace is that a bunch of the sales were done without agents. But then when the writer gets the offer, they hire an agent to help them because they don’t know about IP lawyers yet and thus the agent gets their name on the listing and it looks to the public like the agent sold the book.
FYI, I’ve already added another lawyer to the directory, Daniel Steven. He’s been highly recommended by a friend of mine in the mystery writing community, where he has worked with varous writers and with MWA. (Which is not to say his practice is limited to mystery! But the friend who made a detailed recommendation that I contact him about inclusion in the directory, is a mystery writer who knows him from that perspective.)