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Legal Eagle

Using the law

Q: Specialist solicitors

I have been working successfully in the industry for a number of years and still use a firm of high street solicitors. I have been told I ought to use a firm which specialises in my line of work. Is this necessarily true?

A: No, not necessarily but in some cases there could well be material benefits in doing so, though at a cost. Theatre industry work, like any other area of specialist expertise in the legal profession, is often, but not always, best carried out by a lawyer of experience in dealing with that type of work, because the probability is he will be able to do it more quickly and comprehensively, and with a greater in-depth knowledge of the subject than would otherwise be the case. As a specialist, his hourly charging rate is likely to be higher than otherwise. While there should be some saving in the amount of time spent on the job, the specialist is still likely to prove somewhat more expensive.

However, one can imagine circumstances in which it will make little, if any, difference. You do not say what type of work you do, whether you are an actor, producer, writer, director, designer or whatever, whether you are involved mainly in transactional work, production contracts, performing on stage, exploitation of copyright material or agency services and so on. The need for legal services and the depth of expertise required varies according to type. For example, most performing artists are engaged on standard forms of contract with little permitted variation and it should not be beyond the wit and wisdom of your average solicitor to reach for the precedent book or telephone Equity in order to get his hands on an appropriate form, if indeed his client has not already had one submitted to him. There are a variety of other collective bargaining agreements negotiated between unions and theatre managers/producers regarding standard terms for engagement of industry professionals and in many such cases there may be no need to involve lawyers at all. Reliance is often placed on the agent to do whatever is necessary in a standard form of contract, free of additional charge to the client. This is one reason why there are so few real specialists in this area of the law.

Where the work relates to a dispute about an alleged breach of contract, most competent litigation lawyers are capable of assimilating sufficient technical knowledge of a subject, possibly aided by experts' reports, to be able to conduct the litigation with the requisite skill. After all, court cases relate to a huge variety of subjects, many of them highly technical, and it would be impossible to find lawyers, including judges, who are experienced in every technical area involved.

When it comes to approving or drafting non-standard contracts for the theatre industry, most solicitors' offices are equipped with Encyclopaedias of Precedents, covering this and most other areas of the law. I have little doubt that, whatever the job confronting him, your average, competent, commercial lawyer would, with a bit of research, be able to get the job done but not necessarily as well as a specialist. The problem is to know when specialist advice is needed and when not, which is largely a matter of instinct. Your agent, if you have one, should tell you if he feels out of his depth and whether or not a non-specialist lawyer will suffice.

The specialist scores over the generalist in that the specialist, from years of practical experience, knows the pitfalls, knows the many little wrinkles from which he can squeeze added benefits for his client and is familiar with the terminology of the industry. When it comes to negotiation, the specialist is streets ahead, because he can speak with the confidence of having encountered many similar situations in the past, from which he is likely to have built up a database of his own personal precedent-bank on which to draw in case of need. If he is negotiating with another specialist of equal experience, the negotiating process should be more rapidly completed because each side will appreciate the futility of wasting time and energy in arguing unmeritorious points with the other.

The worst scenario for the client and the professional alike is where a non-specialist, with no prior experience of the particular type of transaction involved, having to feel his way as he goes along, finds himself negotiating a document with a specialist lawyer on the other end. The danger in such a case is that a great deal of time and effort will be spent on arguing about points which should never have been raised in the first place, or which, if raised at all, should have been rapidly conceded. Both clients will end up paying more in legal fees for a job which has taken longer than necessary to complete. Then again, it may be that some points will be too readily conceded out of a reluctance to appear naïve, or possibly through sheer ignorance.

In relation to contracts for the exploitation of copyright material, a good working knowledge of copyright law and experience of the scope and limitation of rights normally granted and reserved respectively and the extent of the royalties and advances normally required to be paid in the particular circumstances of the case are a huge advantage which will very likely result in the client ending up with a much better deal and a greater degree of protection than otherwise. In some instances a knowledge of the industry and how it works is more important than others and sometimes it is essential. Production contracts for big-budget stage musicals which, if successful, are expected to travel round the world, are a good example of the type of case where a skilled specialist is highly desirable.

The above are just broad generalisations to which there are obviously exceptions. I would need to know a lot more about your work and the frequency and extent of your need for legal services, before I could give you a more definitive answer to your question but I conclude with these personal observations - the mere fact that you have been using what you describe as a firm of 'high street' solicitors, is not of itself indicative necessarily of a lack of expertise in the area concerned. In the course of a long professional career I have encountered many excellent firms of that general description, some of whom have appeared to have a high degree of expertise in some quite esoteric areas of the law, and I suggest that, before discarding your high street firm, you should discuss this whole issue with a senior partner in the firm and canvass his views. I am sure he will be up-front with you about the level of expertise his firm can provide and whether you will be better served by moving to one which can offer a greater degree of specialist expertise. After all, the firm seems to have been doing your work satisfactorily for a number of years, so even if it was in unfamiliar territory to start with, it may by now have acquired sufficient experience and expertise in that area to induce you to stick with it.

First published 17th March 2005