Entertainment Lawyers in the Courtroom

Lawyer Courthouse           My first job as a young associate was with a transactional entertainment law firm – we did not go to court.  When a client found himself or herself in a legal dispute our amazing boss would negotiate a compromise 99% of the time – at least that is the way it seemed to me.  In my two years at that firm we had one client actually go to court.  In that situation we engaged outside counsel on behalf of the client to file suit and I accompanied the litigator to the court.  As it turned out the other party did not show up and my client got a default judgment.  That is the extent of my litigation experience!

It is not an exaggeration to say that as a young lawyer I did not realize that entertainment attorneys go to court.  Seriously.  The firm I worked for made deals (primarily for artists) and drafted and negotiated the contracts supporting those deals.  It was not until I left that powerful law firm and struck out on my own that I realized that quite a few entertainment lawyers go to court.

When I am asked advice about becoming an entertainment lawyer I usually suggest, among other things, that the lawyer or law student to whom I am speaking consider not only deal making and transactional law as a career but to be open to accepting entertainment litigation cases. Doing so increases the options and possibly the income – especially in the early days of solo practice.

My friend, Sawnie “Trip” Aldredge is an excellent transactional entertainment lawyer as well as a litigator.  I asked Trip to be a guest blogger for me.  I am pleased to post what Trip has to say about being an entertainment law litigator and hope that this will be of some benefit to you.  Here is his post:

 

            “Daddy’s a litigator, those are the scariest kind of lawyer”—Cher in Clueless

            When I first started practicing law, my partner and I basically took any case that came in the door while we built our entertainment law practice.  So, while we were learning to negotiate record deals and publishing deals, we were also doing divorces, landlord-tenant cases and the occasional criminal misdemeanor case.  I had been in the legal clinic in law school and found that I had really enjoyed the whole courtroom experience – which actually surprised me.

            Gradually, other lawyers started referring music litigation cases to me.  At first, these usually involved representing defendants in no-win situations but over time the cases became better and more rewarding – from royalty disputes to management breakups and ultimately to copyright and intellectual property litigation.  As in every other aspect of the law you learn by studying what other people have done before and by actually doing the work.

            Having the ability to actually litigate cases has really helped my practice.  I believe that when you truly understand what goes into trying a case, whether from the plaintiff’s  side or defendant’s side, and when you have an understanding of how a court is  likely to handle a matter, it makes you a better advocate for your client.  As a litigator, I have developed a sense of when it is appropriate to file a lawsuit and when it makes sense to back off and try to negotiate a settlement of a dispute.

           There are some significant downsides to trying to be both a transactional lawyer and a litigator.  It does not happen often but sometimes companies don’t want to deal with me on a contractual matter because I have sued them in the past. I reconcile this by knowing that if I had to file suit against this company or this individual then I was zealously representing the interests of my client – and at the end of the day that is what we as lawyers are supposed to do.

           It is also sometimes difficult but not impossible to run a litigation practice as a solo attorney.  The big firms will always outnumber you when it comes to man power.   However I have had a number of mentors over the years who have shown me that one can indeed merge a litigation practice with a transactional entertainment law practice and I can tell you that I am rarely bored.

            In my opinion, the music business is becoming more adverse; that is more and more companies are turning to litigation to resolve their disputes, often involving matters of first impression.  I can sense that knowing what goes into trying a lawsuit will become increasingly important in years to come.

         Be sure to check out Trip Aldredge’s Music and Law Blog.   Thank you Trip.

Staying Current in Entertainment Law – Meet, Greet and Read

Hand Shake MenIn any area of the law the practitioner needs to become familiar with the laws, rules and regulations pertaining to the attorney’s specialty.  And the practitioner not only needs to be familiar with the law but also to keep up with recent cases and other developments in his chosen area or areas of focus.  The same is true in entertainment law.  But in entertainment law the attorney also needs to keep up with what is going on in the entertainment industry that might affect the deals and agreements he is responsible for reviewing, negotiating and with respect to which he is advising his clients.

Knowledge of the industry, who the key people are,  and current trends in contract deal points are important to the entertainment lawyer.  Ultimately the goal is to be connected and gain information over lunch or a drink with key executives and others in the industry (including other lawyers).  But for the new entertainment lawyer that may or may not be possible.

In Nashville it has been my experience that when a new entertainment attorney comes to town or enters the business they are generally welcomed by the establishment.  Music lawyers are frequently in a position to bring new and worthy artists to the labels, publishers, performing rights organizations and others in the business.  Plus when it comes time to negotiate deals with the lawyers it is good to have a relationship with them.  Nevertheless, it still takes a long time to develop the type of relationship that will yield the current information that this post is about – the trends and current deal information.

Another important source of information for the entertainment lawyer is . . . the entertainment lawyer.  In Nashville we have a very friendly entertainment law bar.  We phone or email each other when we need to ask a question about the current state of affairs or when we are seeking advice on a legal issue that we might not have faced before.  I share freely as do 90% of my colleagues here in Nashville.  Don’t forget to make friends and join the entertainment law sections of your state and local bar associations.

Another important way to stay current is to subscribe to and read industry and legal publications.  In Nashville it is important to subscribe to Music Row.  I subscribe to Music Row and to Billboard and to a number of other entertainment and entertainment law related publications, both digital and hard copy.  There are a number of online newsletters and publications that I monitor on a regular basis, including David Ross’ Secrets of the List.

If you are new to entertainment law you also should read all you can about the structure of the business.  For more on this point read my blog post entitled “Learn the Business–Not Just the Law”.

In summary, you cannot rest on your laurels in the music law business.  Things change and it is important to keep up and continue learning if you are going to be of ultimate service to your clients.  Fortunately, there are many resources.  I invite any other entertainment attorneys reading this to contribute by leaving your comments and suggestions.

Entertainment Law Practice – Don’t Ignore the Small Clients

Lawyer and ManOnce upon a time in Tennessee I got my first client that was paying me six figures in legal fees every year.  My firm consisted of me, an associate and an assistant.  I didn’t have a strong desire to get much larger – I like the solo and small firm life.  I proceeded to aggressively represent my number one client and along the way learned a few lessons.  One such lesson is undoubtedly common sense to many of you but apparently not to me.  Or perhaps I just forgot to slow down and think.

The first lesson I learned was to approach my practice with this in mind:  Everything Changes.  Isn’t that a law of nature itself?  But there are things that I can do to increase the chances of change being in a positive direction rather than negative.

I had some wonderful years with that big client and a respectful number of others.  However, what I did not foresee was that the client, a music business legend, would begin downsizing.  And as he divested himself of companies and stress causing activities, I too began to downsize — but not on purpose!  Eventually the annual fees paid to me by that client leveled off at about twenty percent of what they had been at the highest.

I remember setting in my office one day and thinking that I didn’t have much to do.  And there was a lot less money left at the end of the month.  My associate was handling the bulk of the work and my main job had become reviewing and revising his work.  I was discussing the situation with an advisor.  I have never forgotten what told me.  He said that I had been focusing totally on the needs of the large client and had ignored the smaller clients.  Then when the large client fees dwindled I did not have a good stable of other clients keeping the business healthy.  He spoke as though I was not the first to stumble into this trap.  This all immediately made sense to me.  I did not need convincing.

I took action. I no longer needed an associate.  I let him go.  I also no longer needed a full-time assistant, a luxury for most solos.  I let her go and hired a part-time assistant.  I began to pay attention to all clients big or small.

Today my business is healthier than it has ever been.  If I don’t believe I can give a prospect the needed attention and service then I do not accept them as a client. I have large and small clients.  My assistant is still part-time.  I engage independent contractor attorneys to assist with the work load on an as-needed basis.

Again – the lesson:  I remember when things are going well that everything changes.  However, the change can be for the better if I pay attention to all aspects of my business.  And take care of all my clients – large or small.

Unauthorized Practice of Law – Entertainment Lawyers?

LicenseMost entertainment attorneys represent clients from states where the attorney is not licensed.  Isn’t that the unauthorized practice of law?

Recently I received an email from an attorney interested in entertainment law.  The question essentially had to do with whether he, an attorney licensed in and practicing in State A, can represent an individual who lives in State B in negotiations with a record company in State C.  This is an excellent question and I dare say there might be some difference of opinion as to the answer.

If one really wants to be thorough the I would suggest that research of the laws and cases in all three states is called for.  The unauthorized practice of law statutes are generally focused on the protection of that state’s citizens and talk about whether an unlicensed person is practicing law in their state for valuable consideration or soliciting their citizens for such legal representation.

Reality:  I do not know any entertainment attorneys who only represent clients who live in the state in which the attorney is licensed and has his or her primary law office.   Most have a national clientele.  As one very successful entertainment lawyer replied when asked the question: “I am practicing law in Tennessee regardless of where my client is”.  In truth he was.  He was even sitting at his desk in Tennessee when he answered the question.  He was not going into the jurisdiction where his client lives to practice law.  The client either comes to Tennessee to see him and/or conducts most if not all of his or her business with the attorney by telephone, email, video chat, text message or some other form of electronic communication.

Caveat.  I am not talking about making a court appearance in a foreign jurisdiction.  Clearly one not licensed in that jurisdiction may not do that (with some exceptions like small claims court, etc.).  However, most states make arrangements for an attorney from another jurisdiction to appear in their courts if properly introduced to the court by an attorney licensed in that state.

The question of traveling to another state to solicit clients is probably risky as is physically going into another jurisdiction to negotiate the terms of an agreement.  To the best of my knowledge most of the entertainment attorneys I know do not do either of the foregoing – but some do.  In my case (and the case of most of the entertainment lawyers I know) my out of state clients have initiated the contact with me in my home state, either in person or by some electronic medium, and all negotiations and transactions are conducted while sitting at my desk in my office which is in Tennessee.

I do not claim to be an expert on this subject.   If you are concerned I would suggest that you conduct your own research on this question and confer with a knowledgeable professor if you are still a student or know any law professors.  And I definitely will appreciate it if any practicing entertainment attorneys who read this would also comment and confirm what I have said or correct me please!

Entertainment Law – Go Where The Work Is!

Travel the Globe

I was practicing entertainment law in my hometown of Memphis, Tennessee when an older (and undoubtedly wiser) man came up to me after a regular meeting I attended and said:  “I don’t understand why you are here.  Why don’t you go where the work is?”  Memphis had had a great run of artist signings in the early to mid 80s — there was a lot of rock and R&B talent being signed to major and independent record deals.  But by the ‘90s the buzz on Memphis rock/pop bands had waned and a lot of the R&B talent had or was moving to Atlanta which was fast becoming a recording mecca for that genre of music.  I actually had a young R&B trio (my clients) call me from Atlanta one day and tell me they were there for a visit and were not coming back!  I assume they came back to get their personal belongings but it was clear that they were going to continue their career in Atlanta – not Memphis.

I was 45 years old when the man came up to me after that meeting. When I was asked why I didn’t go where the work is it was as if a light bulb lit up!  The big “DUH!” Suddenly for the first time I related entertainment law to any type of work.  For example, if I wanted to build automobiles then it would probably be best if I moved where automobiles are built.  So, the way I saw it I had three choices: (1) Expand my practice to areas other than Entertainment Law and stay in Memphis; (2) spend more time (a lot more time) in one or more of the entertainment business centers (then LA, NYC, Nashville and to a lesser degree Atlanta) and stay in Memphis; or (3) relocate to where the work is.

My first boss in entertainment law was Joel Katz, in Atlanta.  Joel is my model for the number (2) choice above.  In the two years I worked for him it seemed to me he was living in hotels in New York, Los Angeles or Nashville every week.  He must have been gone as often as he was in the office if not more.  He was (and still is) a great deal maker, rainmaker and relationship person.  Because I didn’t feel like I had the personality or skill set to be like Joel, I ruled out number 2.  I also ruled out choice 1 because I had never done anything but entertainment law and I wanted to keep doing it.  I was already making regular trips to Nashville and over the next couple of years I began to make more trips there and opened a small branch office in a building owned by a client.  In 1995 I moved myself, my associate and my assistant to Nashville and opened an office on Music Row.  I loved it from day one.  Over the next few years I became a part of the industry in Nashville.  And for me it definitely turned out to be where the work was and still is.

I am not so foolish as to believe that every lawyer must take my path to be an entertainment lawyer.  I didn’t move to Nashville until I had a good client base there.  I grew where I was planted and expanded my client base with travel and networking.  If you have had a different experience then please let me (and my readers) know about it.  I would never insist that my way is the only way!