Can You Afford an Attorney? Can You Afford Not to Hire One?

/ Tricia Drammeh

Attorneys are expensive. Few of us starving writers can afford to hire one, but when faced with a publishing contract, can you afford NOT to hire an attorney?

Before I get into the meat of this post, I want to make a few things very clear:

  • I am not qualified to give legal advice. (That’s why I’m telling you to hire an attorney.)
  • There will be no legal advice offered in the post. (Except for the repeated plea for you to hire an attorney.)
  • I am not naming names (publishers, agents, authors) nor will I be shaming authors who have fallen for a publishing scam.
  • Please don’t name names in the comment section. The publisher or agent you declared to be the Great Satan, might be the next reader’s BFF. Let’s all be friends.

The prospect of publishing your first novel can be both exhilarating and overwhelming. By the time your manuscript has been polished to perfection, you generally have a good idea where you’re headed in regards to your publishing options. Let review those options briefly:

  • Query agents in hopes one will accept you and find you a kick-ass contract with a Big Publisher
  • Directly submit your manuscript to small, independent publishers
  • Sign with a Vanity publisher who will publish your manuscript, generally at a cost to you
  • Self-publish

I’m not here to tell you which option is best for you, because I don’t know you or your personal situation. Even then, I wouldn’t venture to tell anyone else what to do with their intellectual property. I am not an expert. What I can recommend is that you hire an experienced attorney to look over any legal documents you might sign–before you sign them.

When you finally (after months of querying and rejection, in many cases) receive a contract from an agent or publisher, it’s only natural to want to sign your name right away, but DON’T! A reputable agent or publisher will understand if you need to take a few days to seek legal counsel. I know you’re smart. I know you read all John Grisham’s novels and you might think you know how to interpret a simple ten page contract. I know your cousin Jimmy went to law school for a year before he got kicked out, and he told you he already learned everything he needed to know. Unless you or Uncle Jimmy are licensed attorneys, you aren’t qualified to review that contract. Sorry, but you aren’t.

There are all sorts of scary things in a publishing contract–things you might not find in a real estate contract or any of the other contracts you’ve encountered. Some of these strange clauses might seem reasonable when you’re still basking in the warm glow of someone else telling you your book is good enough to publish, but you might see these clauses in a new light once you’ve worked with the publisher for a while and things aren’t going the way you expected. Is there a first rights clause? Is there a time limit on it, or did you just sign over rights to all your future work until the end of time? Is there a reversion clause? What happens if there are major errors in the final manuscript and the publisher refuses to fix them? Or, if the publishing company is composed of a married couple who decide to divorce? There are so many, many things I haven’t listed here, or haven’t even thought of, and you need an experienced, licensed attorney to make sure you are protected.

Not all agents and publishers are reputable. Not all agents and publishers are competent. While seeking the advice of a licensed attorney might put your mind to ease that the contract is in order, the attorney might not know whether or not the agent or publisher is experienced, or well-respected in the industry. It’s up to you to do a bit more research to make sure that choosing to sign with the agent or publisher is a good decision, or a good match for you and your book.

There are some excellent writer’s resources out there that can help you vet publishers and agents. Some of these sites even have forums where authors (both published and unpublished) discuss common publishing contracts and clauses to watch out for. While these sites are great places to visit in order to get an initial feel for a publisher or agent, I do have a few cautions:

  • P&E lists recommendations (good or bad) for various publishers and agents, but many small publishers are not listed at all because they’re too new. Don’t assume that ‘no news is good news.’
  • Absolute Write is a wonderful site, but be careful not to substitute the advice of an author for the advice of a licensed attorney. If things go badly, the author on AW can’t help you in court.
  • Writers Beware breaks down the differences between small publishers and vanity publishers, but I’m not sure how often they update their Thumbs Down lists. Again, don’t assume that ‘no news is good news.’ Just because your prospective publisher or agent isn’t listed on their site doesn’t mean you should sign a contract with reckless abandon.

So, how can you tell if the agent or publisher you’re considering is a match made in heaven? Sometimes you can’t. Sometimes things don’t work out. It happens. But, a carefully constructed, well researched contract which has been tweaked and approved by a licensed, experienced attorney could be the difference between you spending a couple of tough years with a lazy agent, or you spending eternity locked into a contract with an incompetent publisher.

What can you afford?

13 thoughts on “Can You Afford an Attorney? Can You Afford Not to Hire One?”

  1. A very important post. It’s always so tempting to reply to the first publisher that tells us we are the jazz, but it is vital that we consider the source and make sure that we are headed down the right path with the publisher/agent.
    –JW

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  2. TRICIA…GREAT ARTICLE. I PERSONALLY USE LEGAL ZOOM AND IT WAS THE BEST INVESTMENT OF MY ASPIRING AUTHOR CAREER. I HIGHLY RECOMMEND THEM AND YES AN ATTORNEY IS ESSENTIAL FOR EVERY AUTHOR…LEGAL ZOOM WAS A PERFECT FIT FOR ME AND MY LIMITED INCOME.

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  3. I agree with all you have said. I worked in the Music business for most of my life and spent my time telling young artists to get an attorney, don’t try and be a legal-eagle and either do it themselves, or get ‘someone’ with a little knowledge to vet contracts. I know about music publishing/production contracts and what should and shouldn’t be in them and can go through them up to a point; the point when an attorney needs to over-see it and sign off on it. I know too many people who have singed the first deal offered, often for peanuts, and then lived to regret it. It might seem expensive to pay to have it looked at (some music lawyers charged £400 per hour), but the expense and cost to an artist later on can be many many more times the original fees and devastating. The Stone Roses, The Kinks, all lived to regret not getting proper advice. I do hope writers will heed your advice too. Congrats on your blogging award…I nominated Gerry so am so happy she has nominated you. Good luck.

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  4. Thanks for stopping by, Jane. It was truly an honor to be nominated by Gerry. She’s wonderful, isn’t she?

    If a writer considers their true career goals, they may discover they don’t need an agent or publisher to achieve their goals. Even with a reasonable contract that is favorable to the typical author, a particular writer might discover they prefer to manage their own career by self-publishing. I just hope writers will think twice before signing a contract with anyone. What seems like a good idea at the time, but not seem like such a good idea a year or two down the line.

    Thanks for your comment!

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    • You are so right Tricia and of course there are always options. I know writing is different in many ways to music (per my last reply) but when you are inexperienced and ‘green’ and anxious to ‘make it’ common-sense does often fly out of the window. These days it is great that we can self-publish, Indie-publish, and possibly get taken up by a publishing house of varying influence, so all is not cut and dry. But it is important not to jump in the deep end with both eyes closed. So now I am hoping my recent novel (a co-write) which will be wending its way to an Agent next month, will find a home – otherwise we (my co-author and I), shall be considering the alternatives. Only three more books to finish…simples! Great to meet you by the way.

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  5. Great words of wisdom here. There is much at stake when it comes to your written words and so important for people to do their homework.

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  6. SUCH an invaluable post, Tricia!

    Gosh yes…

    It is a strange fact that so many authors like myself, spent years meticulously researching our novels, down to every detail, yet when you are approached by a publisher who is interested in your work and thinks it’s great etc, it can be SO seductive! Suddenly caution goes out the window and your sensible side is utterly swept aside by the excitement of it all! But you are TOTALLY right, if you do not do your research into the contract and the publishing house itself you could well be regretting it. As Jane said, if you jump into the first contract that is offered to you without thinking twice, not only are you likely to be signing a poor contract for peanuts but you may be signing over rights that should be yours or as you said Tricia, signing over your cherished work to an incompetent publisher. Very VERY good advice, Tricia. I’m afraid there are many of us writers who DO fall into these pitfalls with devastating results. As you said, always take the time to think, if the publisher is reputable they shouldn’t rush you into signing and always always do your research and get legal advice. Forewarned is forearmed!

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    • Agreed Sophie, a mine field for the uninitiated and ‘green’ and even those of us with contract experience have to get proper advice in the end….I have seen many regret it. I understand the Society of Authors offers a reasonable service vetting contracts and advising….so that might be a route to go for some. Good luck with your ventures ladies/gents.

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