Care and Feeding: Lawyers

it is a common defect in man not to make any provision in the calm against the tempest

At some point in your career in game development, you will likely encounter the lawyer. The lawyer is a misunderstood creature, not so unlike the developer. Lawyers solve problems. Like developers, you need to be able to understand, and communicate with the lawyer in order to reach a resolution for your problem. Your ability to understand enough about law to communicate with the lawyer is directly proportional to the value which you will receive.

This discussion will be from the perspective of United States law, though the concepts, and not the specifics, are my intent. I am not a lawyer, and this post is not legal advice. It is my hope that I can bring some of my experience to the developer community, from the perspective of a developer.

About the Lawyer

At all times it is important to recognize the lawyer’s first priority: they are advising you with regard to what is legal. You may be concerned about your bottom line; about your production schedule; about creative issues — those are not their priorities. They shouldn’t be their priorities, and the lawyer knows this. When dealing with a lawyer, you are also inevitably dealing with an opposing lawyer. That other lawyer also has one priority: they are advising their client, your opposition, what is legal. The opposing parties lawyer can be one of your best allies because of this. It is crucial that you understand this mindset. It will cause you frustration if you don’t, but can be a great asset if you do.

The lawyer gets paid whether you get the result you want, or not. You will likely sign something to this effect as part of your engagement. You may be required to give them a retainer; a sum of money which will be used to pay expenses. This is their way of saying, “I am going to need to do a lot of work on this, and I’m not going to just assume you can pay me.” This isn’t a vote of no confidence, it simply reflects the lawyer’s experiences with people: they do, and say stupid things which get them sued. The lawyer gets paid, end of story. Just budget-for, accept, and understand this.

The lawyer is a creative thinker. The lawyer, and the developer, are not so different. The lawyer must think abstractly, and then apply that thought into a very rigid set of terms and rules. Legalese reads like legalese because the specific terms and phrasing have defensible meaning, not to create some kind of arbitrary barrier to entry. The law is comprised entirely of abstract concepts which have been recorded in a precise language, with the intent of eliminating ambiguity. Do not short-change yourself by thinking that legalese is just some useless, syntactic garbage (or (you (will (not (get good-value (from your-lawyer)))))).

The lawyer hates having their time wasted. The single most valuable resource to a court, or a lawyer, is time. For example: They sent you their red-line on a 5-page contract two days ago, and you walk into a meeting having not read it, they will not be pleased (but they’ll still bill you). Remember, it’s your name that will be signed to that contract, not theirs. They will tell you if a clause in a contract is legal, but they may have no way of knowing if it will screw up your development plan. Your ass is on the line, so read contracts like your studio depends on it; because it just might someday.

The lawyer understands that you do not know the law. If you go in with a highlighted copy of that same 5-page contract and say, “I don’t understand these parts,” they will respect you. If you are in a meeting, and they use a term you don’t understand, ask them about it. If that term seems important, go home and look up more information so you can better understand the concept.

Key Terms

This is by no means a complete list of terms or concepts, but they are probably the top three that will keep you out of trouble.

Discovery

Not as thrilling as it sounds. This is where the opposition asks the judge to make you hand over information they feel is relevant to their case. If you are having conversations that you don’t want found by someone in the future: don’t do them in written form. If you are thinking about texting your buddy something funny that someone would consider evidence: don’t. The time to think “oh shit that would look bad” is not after you get the subpoena; it’s before you make the communication. There are exceptions, and information which is protected from discovery, as well as ways to challenge requests, but if you don’t want something found during discovery, the time to think about it is before you put pen-to-paper (in this case, the pen can be electronic).

Attorney-client privilege

Stuff you say to your lawyer isn’t subject to discovery. There are exceptions, as always, but the one thing I want to highlight is this: this is communication between you and your lawyer. If you get an e-mail from your lawyer, and forward it to someone else in the company, you have likely made that e-mail subject to discovery. If you get a detailed itemization of time spent from your lawyer, and you stuff that into the folder to send to the book-keeper, you have made the details on how the lawyer spent their time subject to discovery. You should always, always, always ask your lawyer any questions you have about attorney-client privilege before you engage in the communication about-which you have questions.

Indemnification

If Alice indemnifies Bob, this doesn’t mean that Bob is free-and-clear should some feces be on an incoming trajectory. All it means is that Alice will defend Bob to the extent of their resources. That last bit is important. If Mallory comes along and sues Bob, and can out-spend Alice…Bob is still going to be in trouble. Indemnification from Alice may be no more protective than a wet paper-bag.

Meeting Your Lawyer

So you need a lawyer. The best time to choose a lawyer is when there is no pressing need, but I’ll be realistic about things: you need a lawyer; you needed one last month. This means you are soon headed to some sort of meeting which will likely be held around a gigantic wooden table. If they offer you water or coffee, for the love of god use the coasters which will be placed conveniently nearby. The chairs will be comfy. This first meeting is important. It will set the tone for your relationship with your lawyer. Your preparation is key. You are walking into a meeting with someone who likely knows little, or nothing, about your business. It is your responsibility to explain to the lawyer your business in terms of the business they understand: the law. I will say that again because it is important: the lawyer does not know your business better than you do; they can’t. The lawyer has several clients, and they get paid whether you get the outcome you want, or not. You are a team with your lawyer, they are not a one-man show.

They will want to see relevant documentation: contracts, milestone requirements, communication logs, and the like; but you probably guessed this. What you forgot was that those contracts are for a game; those milestone requirements are written in ‘developmentese’; and those communication logs have conversations assigned to people they don’t know. So do some extra work: write a list of terms, abbreviations, acronyms that are used in the documents. List out who is who in communication logs; what is their position, how are they related to the case, and anything else that is relevant to the context of the communication. When they are re-reading these items later, that extra work will pay-off in spades.

Go Forth, and do Great and Legally Defensible Things

You are a team with your lawyer, and the effectiveness of your team is directly proportional to your ability to communicate. The burden of understanding is on you. They will likely keep practicing law even if your studio goes out of business. Don’t enter into the arrangement thinking that you handed the lawyer some information and they’ll take care of it all. Understanding is key to communication. Look for the common ground between your professions, welcome your new ally, and work with them for the betterment of your studio.

Above all else, address potential legal issues before they are crises, and you will prevail.