Intellectual Property

Intellectual Property: Selecting a Good Lawyer

Entertainment and intellectual property law cover a very broad spectrum of legal issues involving contracts, patents, trademarks, copyrights and more. The level of expertise of lawyers specializing in these areas can vary from generalists in the field to experts in sub-specialties that may range from information technology ("IT") to transactional entertainment law, which would include the representation of producers, writers, actors and directors. Thus, you should first focus your search for lawyers on those who hold themselves out as having expertise with the particular type of legal issues or problems that you are facing.

If you're in business and already have a working relationship with a lawyer, you may want to start there, as many business lawyers have developed some degree of expertise with intellectual property matters. At a minimum, this lawyer could initially assess your legal situation and try to come up with a game plan to deal with it.

If you don't already have a lawyer, a great place to start your search for one is right here at lawyers.com. You can do a free search to come up with a list of lawyers by using the Find A Lawyer search box that can be accessed from anywhere on lawyers.com. (You should see a search box on the right side of your computer screen.)

To do a search, go to the first part of the Find a Lawyer search box where you can "Select a type of lawyer" for either a "personal" or "business" topic. Use your mouse to scroll down the areas of practice and click on the area that fits your needs the best. For example, if you are looking for an entertainment lawyer, scroll down the choices in the "personal" topic menu until you come to "ENTERTAINMENT." If you want an intellectual property lawyer, scroll down "business" topic menu until you come to "INTELLECTUAL PROPERTY" and choose the sub-area that best fits your situation.

Then, in the second part of the search box, type in your hometown, insert your state, and click on the Search button. You should be able to pull up Search Results with a list of lawyers' in your area.

If you don't pull up any names, try broadening your search. Follow the search tips that were provided in response to your unsuccessful search, or click on Search Help. Ultimately, you will be able to pull up a list of names.

To hire the best lawyer you can for your situation, it is critically important to take the next step of accessing background information for the lawyers on the list you have pulled up. You should easily be able get a lawyer's biography either by clicking on his or her name, or by clicking on the "More info . . ." link that appears in each listing. If the lawyer has a Web site, you should check it out by clicking on the hot link that may also be provided in the listing.

As with most areas of the law, there are lawyers who primarily do transactional work, and those who do litigation. So if you want to register a trademark or apply for copyright protection, you probably need an intellectual property lawyer who focuses on transactional work. If your legal issues involve a lawsuit, you will probably also want to look for a lawyer with litigation experience in trying entertainment or intellectual property cases.

If you have a patent issue, you definitely will want to talk to a patent lawyer. The law involving patents is so specialized that lawyers must specifically apply for and be given patent bar licenses before they can practice in this area.

Now that your search is focused, use the following guidelines to do some initial screening on the list of lawyers that you have and narrow it down to three or four prospective candidates:

  • Look at biographical information, including whatever you can find on Web sites for the lawyers and their law firms. Do they appear to have expertise involving intellectual property issues in the area in which you need a lawyer? If they profess to have expertise in this area, they should certainly have a good Web site with lots of information on it.
  • Use search engines to surf the Internet. Do searches under the name of the lawyer and his or her law firm. Can you find any articles, FAQ's or other informational pieces that the lawyer has done that that give you a level of comfort? Cross check your references by doing searches using key words such as "intellectual property attorney."
  • Ask other people in your line of business if they have heard of the attorneys and what they think about them.
  • Contact your state bar association or visit their Web site to find out if the lawyer is in good standing. Is he or she a licensed patent lawyer?
  • Check out online directories or the yellow pages of your telephone directory. Does the lawyer advertise? If so, do you find it compelling? Helpful? Tasteful?
  • Check out the online archives of your local newspaper or other publications, such as Daily Variety or Hollywood Reporter. Has there been any publicity about the lawyer or the cases that he or she has handled?

Consider any special needs you have. For example, could you benefit from an attorney who speaks a language other than English?

You shouldn't necessarily cross a lawyer off your list just because he or she didn't have the time to meet with you on short notice. Good lawyers are busy, so they may not be able to spend as much time as they would like with prospective clients. You should also anticipate that whomever you hire might have to delegate a lot of responsibility to his or her staff. How does the lawyer's staff treat you? At a minimum, you should expect to be treated courteously and professionally by both the staff and the lawyer.

The chances are that you will have to pay any attorney who you retain on an hourly basis, although many entertainment lawyers represent talent on a percentage basis (usually 5%). Rates can be competitive, so it may be to your benefit to shop around. However, lawyers with a good reputation in this area are going to charge more. It is sometimes worthwhile to pay more for a lawyer or a law firm with a great reputation in a given area of expertise.

Is this a one-time problem or a recurring situation? If you are involved in a litigation matter, it may be a one-time experience such that you want to hire the most tenacious litigator you can find, even though it will pretty clearly not be a longtime relationship. But if you have a business where you are routinely dealing with intellectual property issues and problems, you should think about retaining a lawyer or a law firm with broad resources to assist your business on a continuing basis.

While he or she may end up delegating work to new associates, you will probably want to hire a lawyer with at least a few years of experience.

Look to see if a lawyer is affiliated with associations that cater to your needs. For example, prominent associations for lawyers specializing in representing businesses on intellectual property matters include American Intellectual Property Law Association. Many states have their own associations.

Having a lawyer who is involved in a chamber of commerce, software associations or other local organizations may also be a good sign, depending on your legal needs.

Although it may be less important when you are already operating in an online environment, you will probably want to hire a lawyer with a local office.

Before you hire a lawyer:

  • Ask for references. You want to talk to people who could comment on the lawyer's skills and trustworthiness. Ask if it is okay to talk to some of the lawyer's representative clients. Get a reference from a bank and from other lawyers.

  • Ask about conflicts of interest. Does the lawyer represent any opposing or interested parties?

  • Ask for a copy of a firm brochure and promotional materials. Crosscheck these materials against other sources and references.

  • Ask to be provided with a copy of the lawyer's retainer agreement and have it explained to you before you decide on retaining the lawyer or the lawyer's law firm. You may end up paying a lot of money to the lawyer who you retain, so make sure you understand what you are signing up for.

    Use your common sense and gut instincts to evaluate the remaining lawyers on your list. You'll want to be comfortable with the lawyer you hire. You want to choose the best lawyer who you think will do the best job for you.

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