January 14, 2012 @ 22:42:06
Perception of the Law
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‘Law’ means different things to different people.

For lawyers, law is about what is legal and what is illegal.

For academics, law is about what rules should exist to govern people.

For activists, law is a vehicle to achieve larger goals.

For most clients, however, law is seldom anything more than a matter of risk management.

If the potential benefits that a client may derive with a lawyer’s help are smaller than the lawyer’s bill, then there is no point in hiring the lawyer, even if from the purely legal standpoint, the strategy suggested by the lawyer makes perfect sense.

Likewise, there is no reason to hire a lawyer if the cost of hiring the lawyer in order to reduce or eliminate a certain risk is higher than the damage that the client may suffer multiplied by the likelihood of that risk ever materializing.

Lawyers who do not look at their work in context of their clients’ needs and businesses do their clients a big disservice.

Here is a short case study that illustrates how I do things differently.

A TV channel wanted to use a song in one of its productions that would only be broadcast once. The channel invited the song’s composer on the set to talk to the audience about the song. The arrangement was that no money would be paid to the composer for his appearance or for the use of the song.

From the purely legal standpoint, the only correct way to deal with this situation was for the parties to enter into a very detailed license agreement depicting what the TV channel did or did not have the right to do with the song. Drafting such an agreement and then negotiating it with the TV station would have taken many hours of lawyers’ time. It would have also created a document that neither of the parties really needed.

What I suggested was that the parties act on a handshake – without any agreement in writing at all.

It meant that the composer could legally sue the channel at any time for unauthorized use of his song, thus ensuring that the channel would not want to use the song outside that one specific production. On the other hand, I made it clear to the TV channel that if it only used the song as stated (that is, only as part of the production of which the composer was an integral part), then the composer would never sue it for what was technically unauthorized use – because it would ruin his reputation as a reasonable and trustworthy person, while the potential award that he could receive in the result of a potential litigation was minuscule.

The channel agreed. No written agreement has ever been concluded. The show aired as planned, once. Combined legal costs of both parties were very close to zero.

Context matters.

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