The other day I had the following exchange on Twitter:
It was in the context of whether a lawyer’s client should ever talk to the press or publicly discuss an ongoing case. (Spoiler: No.) But Dr. Kubik asked nicely if I would comment on it in my blog. So here we are. It’s all her fault!
She’s right in that this is not something that gets a lot of attention in law school. Even this quote from my torts prof would probably not be made in most law schools today:
“A woman comes into your office. Her husband was recently killed. It’s winter. She can’t pay the heating bill. Her children are hungry. So far as anybody can tell, her husband’s death was an unfortunate accident. She begs you to find some way for her to sue…
… The answer is *pound on the lectern* no! It’s not in the law, she has no case, and telling her otherwise is a breach of your duty to your client.”
But one of the most important – and least pleasant – duties of the attorney is to be able to say no to a client. I have had to say to clients, among many other things, “No, you cannot…”
- “…get out of this contract without incurring significant expense and/or risking major liability.”
- “…use that previously-trademarked name for your new business.”
- “…practice that patented invention without a license.”
- “…prevent that person from stating their unpleasant opinions about you in public.”
- “…make that pricing arrangement all your major customers are screaming for without risking the wrath of anti-trust regulators.”
I am a very good lawyer. And I have found ways to make a lot of things work that looked like they couldn’t be made to work at first. I firmly believe my job is not to say no, but to find a way to say yes.
But sometimes the answer is… *pound on the lectern* no!
And if you can’t say no to your client you have no business doing this work. Yes, it’s hard. Everybody wants to please, everybody wants to be liked, everybody wants to be a team player. But lawyers are, if you’ll pardon the expression, on the special teams. We have to be able to say, “Coach, I can’t make that kick,” if we really don’t think we can make it. Because otherwise the team will rely on us to do something that cannot be done. This will not only result in failure, it will make things much worse than they would have been had a realistic approach been adopted in the first place.
In the context of my discussion with Dr. Kubik, your client may feel they have been wronged, that their reputation is on the line, that they have been unfairly maligned in the public eye. They think it’s only reasonable to talk to that nice, sympathetic reporter and tell “their side of the story…”
*pound on the lectern* No!
If you haven’t already seen it, go watch this video: Don’t Talk to the Police.
Everything in that video goes for talking to not only police, but regulators, journalists, bloggers, and random people on the street. It could, theoretically, help you. But it’s unlikely to, you have no control over the outcome once you say anything, and there are an infinitely larger number of ways it could hurt you. We shouldn’t even have to have this discussion. If you must, the lawyer vettes every word in that statement first, and no questions.
That being said, of course your client has to speak publicly in the normal course of business to all of those people. And that’s fine, so long as all the personnel doing so understand their roles and their limits. By all means, communicate openly, freely, honestly and truthfully.
But once something has started to go wrong, your client’s livelihood, assets, freedom and/or life may be on the line. You must make clear to them that their feelings and desires to be understood are not only irrelevant, they may end up costing them everything. There’s a reason big companies issue those weasel-worded lawyer-lingo statements that everybody hates. Because you don’t get to be a big company without acquiring some smart lawyers. That’s you. You have to be the smart lawyer even when it makes the marketing people scream like they’re being tortured.
How do you do this?
You set forth risks clearly. You advise on the risks associated with alternatives. And you make sure you don’t get a reputation for exaggerating risks and being the lawyer who just says no to everything. In other words, you don’t be this guy:
But you don’t, I repeat you do not, ever minimize or dismiss those risks. You don’t leave one off the list because it’s just so unlikely, unless no reasonable attorney would include it. Stabbing Future-Gandhi is pretty bad. Alien invasion would severely disrupt almost any business operation. However, it’s okay to leave them off the risk table. Short of that, if it’s a possibility, you need to advise on the potential legal risk. And if they try to make you say a risk really isn’t a risk, you do not, ever, agree with them. It’s okay to agree that a risk is minimal. It’s not okay to agree that it doesn’t exist.
And in the end, you may have to ask them that question, just as I asked it: “Do you want to make a little more money/be understood, or do you want to avoid bankruptcy and/or jail?”
It’s hard. You learn from experience. And if you are a freshly-minted attorney, so new you still squeak going around corners, you may very justly fear irritating powerful/experienced/successful clients or giving up work you need to keep food on the table. I get that. I’ve been there. But it is your duty. And ultimately, it’s your assets and livelihood on the line, because if you don’t give competent advice, you are going to be liable for malpractice and open to sanction for it.
If your client wants to act against legal advice about something that will “just” get them sued/cost them a lot of money, you have a little more leeway. You can continue representation (document everything!) and try to mitigate the result of the action. Who knows, you might even be wrong!
But if they want to do something that could get someone hurt, or violate criminal law, or be considered an act of moral turpitude, you have to make clear to them that you cannot continue to represent them. (Don’t lead with this, obviously.) And then you have to back it up. Here is another quote, from the first legal conference for General Counsels I ever attended:
“Repeat after me: I’m not going to jail for the shareholders.”
Don’t go to jail for the shareholders. Don’t get yourself disbarred for the shareholders. Don’t get yourself sued for malpractice by the shareholders for the actions of corporate personnel.
Learn to say no.
And, if you have to, pound on the lectern.
Had an interesting Twittersation last night with Dr. Sara Kubik, a Ph.D. in Technology (and current third-year law student.) First I Storified it, which I’d never done before, so here’s that:
But I thought I’d expand on some of my points a bit.
1) Losing a lawsuit is the only thing worse than winning a lawsuit.
Lawsuits suck. They purely suck. It doesn’t matter how good your case is: every lawsuit I’ve ever brought, I brought because someone had out-and-out stolen from my client. No fair use defense, no inadvertent infringement defense. Likewise (I am really good at picking clients) every time one of my clients has been sued, the claim could at best have been described as “colorable.” That’s a legal term of art which means “I probably can’t report opposing counsel to the disciplinary commission for filing frivolous lawsuits.”
And I’ve won every time.
(Well okay we settled one but it was pretty favorable.)
My clients still had to go through a very distracting, draining legal process which cost them a lot of money up front. While we recovered costs of suit in most cases, sadly I’m not as good at picking lottery tickets so we never got a zillion-dollar payday. Maybe that would make a suit worth it, but frankly given the level of disruption they cause a business that’s what it would take, if I cared about money. I had to file most of those suits because there were intellectual property protection concerns. In that respect, I won – my clients’ IP was protected. But I wish I could have found some other way.
2) Rocket Lawyer/Legal Zoom/Et Al and their impact on the legal profession.
Okay, I can unpack that a little. I have seen people get work from “inexpensive legal services providers,” (hereafter, “ILSP”) without naming names (and not necessarily either of the two providers given as examples) which required extensive additional legal work to… well, to fix, to be blunt. I know other lawyers have had similar experiences.
Without knowing how much of what kind of legal work ILSP provide, I can’t give accurate evaluations of whether they are cost-effective in the long run for individual clients and/or society. I admit that freely. But the numbers I used above in the Twittersation seem, if not provable, plausible. It only takes one actual court case or even the preparation for one to wipe out the savings from a very large number of inexpensive legal services.
The people who work for ILSP are, one fervently hopes, licensed and competent attorneys. But given the nature of such operations, they simply can’t become as familiar with a particular client’s needs and issues as a personal counsel can. The numbers don’t work. That extra hour to review, that extra bit of specialized knowledge… they are not worth saving a hundred bucks over. In legal services, as in few other things, you get what you pay for.
3) AI and the future of legal work.
My reference to “Happy Fun Space” is a shout-out to Iain M. Banks’ “Culture” novels, where we are told some AI become so computationally powerful that they spend their time in simulated universes of their own design, which they call”Infinite Fun Space.” The “Singularity” is a hypothetical point in history where human beings or their AI colleagues become so powerful that they can transition mankind to a post-scarcity society. In short, once we get AI powerful enough to do what I do, they’ll be so powerful we won’t have to do anything at all. (This could go really wrong, or really right, depending on whether we get AI of the type Scott Alexander refers to as “Moloch” or “Elua” in his amazing essay Meditations on Moloch.)
However, even absent Skynet or Mother, AI will still have a significant impact on the legal profession as technology advances. There are already AI (though they aren’t true AI, they’re agents) which can draft simple contracts or help people protest parking tickets. For parking tickets, this is probably okay. But even for simple contracts, I am not convinced this is a good idea at all. I am fond of saying that an AI could probably safely do a big chunk of my job… but part of the chunk it could not safely do is accurately determining which chunk it could safely do. Any transaction more complicated than buying a pack of gum at the drugstore is inherently individual. AI aren’t there yet. Human programming isn’t there yet. Subjective judgment and experience are holistic and intuitive and that’s just how it is.
For instance, say you’re an attorney for a private, closely-held company which is subject to significant regulatory restrictions. (Yes, this is an example from experience.) You want to redraft the bylaws for your client’s corporate entity. Here are just two things an experienced lawyer will think about which have nothing to do with the actual bylaws.
a) You only have a handful of shareholders. What are their estate arrangements? If one of them passes away or becomes incompetent, will their ownership interest pass to an individual or individuals who will need findings of suitability? Or worse, who can’t get findings of suitability? What will that mean to your client’s regulatory compliance?
b) Maybe you’re lucky and your client’s ownership structure is such that it qualifies for WBE or MBE status. (Don’t know what that is? Does the AI?) First, analogous question to the above. Second, are you sure the bylaws structure control such that in the event of a shareholder conflict, you always have the outcome required to satisfy the WBE/MBE certification agency?
Did whoever programmed your “Makin’ Corporations!” AI/agent think about things like that? Did they KNOW about things like that? Do they keep the program constantly updated with legal, business, and tax strategic background? Can you sue them for malpractice and report them to the bar if they don’t? This is the kind of thing I mean when I say that 999 times in a thousand, the client may save a small amount of money, and the thousandth time, they may end up bankrupt, in jail, or both.
Anyway, those are my thoughts on the matter. Comments invited.
I had the honor of being a speaker on two of the panels at CVGLS 2016, and as always (well, they’re two for two) it was a great time and I met a lot of cool people. First, congrats to Ross (@loadinglaw) and Suzanne (@zedthegamer) for organizing another great summit. Thanks for inviting me and I hope we do it again soon!
To briefly review the panels:
The Changing Scene of eSports
I was on this panel, so it was great. You can find the written materials I referred to several times at this link: MarcWhippleCVGlS2016
Thanks to my fellow speakers Jason Greenglass, Ryan Morrison, and Lydia Picknell. I covered the basics of gambling law in the US and talked about just a few ways you could run afoul of them when developing video games, and why the Daily Fantasy Sports operations like FanDuel and DraftKings were kicking up a lot of dirt that might land on us. Jason and Ryan talked about the legal aspects of eSports, player contracts, et cetera, and Lydia talked about them from the perspective of a player/coach/owner. (Yes, she’s a female eSports team coach and owner. Fear her!) We had a lot of fun and everybody seemed to enjoy it very much.
Recent Developments in Video Game Law
I was on this panel, so it was great.
I was on this panel with Greg Boyd (who also moderated, to the extent we let him,) Patrick Sweeney, and Ryan Morrison, again. (Ryan and I were on stage literally all morning and people still stayed!) We covered the basics of intellectual property law, always a hot topic in video game development, as well as advertising and other matters of current interest. We also got into crowdfunding a little bit – just enough to reveal that it is fraught with peril, especially if you want to give backers equity or a right to some of the revenue stream, so you really, really need a lawyer!
Privacy, Harassment, and Free Speech in Video Games
I was not on this panel, but it was still pretty good.
While this panel covered a lot of important issues, it focused on the problem of harassment in the video gaming world. Lydia told some powerful stories about the things she’d encountered as an eSports professional. Sadly, a lot of the really excellent questions more or less boiled down to, “How can we use the law to make people nicer?” To which the legal answer is ultimately, “We can’t.”
Video Games and the Right of Publicity
I was not on this panel, but it was still pretty good.
This was probably the legal-iest of the panels, with lots of actual case law and real-world examples of using other people’s likenesses (not just their faces – their names, their voices, you name it) and the trouble it can cause. “Don’t, unless you’ve talked to a lawyer,” was probably the takeaway from this panel.
The History of the Video Game Industry in Chicago
I was not on this panel, but it was still interesting.
While I won’t try to recount the stories, I will point out something that was said multiple times. One of the developers worked for Bally when they were making arcade games – the typical dev time was a few months! It was very much a pipeline process: electrical engineers and the first game artists would come up with a game, program it, make master copies, and then it went to the assembly line for mass production. What he said was, “If you didn’t finish your game on time, people got laid off.”
That’s still an important concept for developers to keep in mind: the publishers have marketing slots. If you don’t finish your game on time, they lose the slot. Somebody else gets the spot on the shelf or the promoted marketing page on Amazon/Steam/etc. It’s not a question of whether your game is good or it sells: those are equally important but different questions. You have to finish on time or somebody who was going to try to sell your game has no product. That’s never good. If you finish on time and give them the product, you make their lives a lot more pleasant. Even if the game isn’t great (so long as it doesn’t suck) that’s worth a lot for next time. Relationships and reputation are still important, even as assembly lines lose their importance in the world of gaming.
Thanks for reading, and see you next year!
I attended MAGFEST 2016 in National Harbor, MD (just outside Washington, DC) this weekend. MAGFEST is a major computer game conference with an emphasis on music and creativity. And wow was there a lot of creativity on display!
I was there as an invited panelist. My presentation, entitled “Third Party Trademarks vs. Your Game, Your Dreams, and Your Money,” was part of the MAGES Legal sequence, and given in collaboration with three great attorneys from well-known law firm Banner & Witcoff. It was an honor to be up there with them. If you’d like to see the materials from my presentation, I’ll have a link here in a day or so, or follow me on Twitter and wait for me to post the link.
First, heartfelt and grateful thanks to:
Sam Castree of Crawford Intellectual Property Law, for the invite, the Legal panels, logistics, and candy from Russia. Sam, you are aces.
Tasker, Jax and their merry band of LARPers, whose games were fantastic and a great way to enjoy the festival if your ears aren’t quite up to some of the… louder stuff. Brilliant, creative, and engaging people. This is the kind of thing I hope to encourage by assisting creators in dealing with business and legal matters.
The doctor of psychology at the Gaming and Immersion panel whose name, shamefully, I forgot to note, for being open minded to my alternate theories on the psychology of game immersion and loss of self.
My fellow presenters Steve Chang, Ross Dannenberg, and Scott Kelly. I really enjoyed collaborating with lawyers of their caliber, and dinner was great fun.
And the MAGFEST staff for their hard work, friendliness, and overall ability to make 20K gamers behave themselves!
Here are my thoughts on the panels I attended:
The other MAGES Legal Panels – They were all great. You should be very confident in hiring any attorney who presented. Special shout-out to Suzanne Jackiw (@zedthegamer) and Ross Hersemann (@loadinglaw) for being young lawyers with mature advice!
What Games Get Right and Wrong About Reality: Expert’s Perspectives – This was really interesting. The experts knew their stuff and were very personable. Lot of good observations and thoughts on how to do better.
Bootlegs, Counterfeits, and Lies: Fakes In the Video Game Market – Went to this on a whim. Though it was a bit chaotic, the panelists knew their stuff and I learned interesting things. They also responded with good humor when they learned that they had two IP lawyers in the audience.
The Worst Panel You Will Ever See at MAGFEST – Exactly what it said on the tin. At least for me: it was apparently aimed at long-time MAGFEST insiders/volunteers. Even for them it seemed rather random, chaotic, and obnoxious. I left early.
Video Game Industry Real Talk – I was blown away by how good this panel was. Though young, the panelists were the real deal, knowledgeable and honest about both their successes and their failures. They were having fun, but they were laying it down. If the hopeful indies in the audience were paying attention, they got their money’s worth.
Therapy and Tabletop Role Playing Games – This had a lot of potential, but to be brutally honest the panelists lost control. At one point, an audience member went up on stage and started plugging her book. Now, I’m pretty sure she (and many of the other people who co-opted the talk) had legitimate issues of their own, but it was hard to stay engaged when half the panel was audience members meandering through their ill-defined rambles. The panelists did have some interesting points when they managed to get in a few words.
Therapy and Gaming -Same people put this on as did the prior one. Same objections, plus it seemed a bit redundant. Left a few minutes in.
Brains & Games: Designing Videogames that Incorporate Mental Health and Human Experience – Enjoyed this. This panel had a similar demographic to the prior two, but the panelists maintained control. Good information on using games to implement self-improvement and mental health assistance programs, including a CBT reinforcement game and games to help with grief management.
LARPs by (among others?) Damocles Thread Development – The ones I did were the Fallout “Vault 71” game, the “Not Shady, Just Fierce” werewolf social game, the Witcher “From Novigrad with Love” game, and the “Gaudete Sunday” Victorian Tea Party game. (Best quote: “I did not anticipate that this game would need combat mechanics.”) They. Were. Amazing. I had so much fun. And extra kudos to the storytellers for dealing with huge turnouts as well as anyone could be asked. Even with the crowds things happened, people participated, and a good time was had by all. If you see DTD putting on LARPs at an event, GO.
The Mind’s Eye: Gaming and the Role of Immersion – The moderator lost control of this one, and didn’t seem willing to stop the endless tide of look-how-smart-I-am questions or just outright I’m-just-going-to-pontificate-for-a-whiles. That being said, it was a fascinating subject and the panelists were extremely knowledgable and insightful. Very glad I attended despite the runaway parts.
That’s it! Thanks for reading, and see you next year!
I’ll be giving a panel talk on “Third-Party Trademarks in Video Games.” In other words, if you want to put a Coca-Cola® sign on the street in your game world, can you? Should you? How should you do it if you want to, can, and should? I’ll be at the conference all weekend and am always glad to talk law, technology, pop culture, or the random topic of your choice.