Finding and working with the right lawyer?

What do you do in order to find a lawyer? Do you work with a lawyer at all? How do you know a lawyer is good?

I’m in the situation that I need to have terms of use for an online community run from Germany. Getting a lot of users onto the site without having terms of use is just asking for trouble.

I’m personally having a lot of trouble with bringing myself to work with a lawyer. I’m pretty hands on and I need to learn about the legal situation anyways in order not to code something for my online-community site that violates the law. Yet this hands-on do-it-yourself mentality might be a problem. I simply do not have the experience and overview that a lawyers has regarding the legal situation - despite spending a good deal of time on reading about court rulings, reading the actual laws and reading free advice on lawyers’ blogs.

The other reason why I have trouble to just have them draft something is that I have no clue how much time a lawyer needs to do such a thing and, subsequently, I do not know what kind of costs I have to expect. It’s troubling me since this is a shoestring-budget kind of business. Maybe hiring a lawyer is simply not the right way to go about this.

On the other hand, wasting so much time making a decision can be considered even more costly than just paying the lawyer. It’s just that time is a resource I have and spare money is not. Can someone give me a nudge in a useful direction?

In 10 years I have never needed to employ a lawyer.

My EULA was cobbled together from boiler plate.

The closest I have come was when Sony Pictures ripped off my software in a TV program. I spoke to a lawyer friend of the family and decided it wasn’t worth pursuing.

Obviously YMMV. Especially if you make software where a mistake could potentially kill someone.

In 10 years I have never needed to employ a lawyer.

That’s very interesting to hear. Thanks for sharing, Andy.

My software certainly isn’t so critical that it could directly threaten people. Information leakage (of personal content of consumers) and copyright litigation (for user-uploaded content) seem to be the worst case scenarios at the moment.

Obviously, it makes a lot of sense that the lawyers I’ve contacted make an effort to make me even more afraid of these than I already am - they’re solving the pain of being afraid of legal action and needing additional legal protection is their business. So making people afraid is good marketing.

When I mention something that could be done, I don’t ever hear “oh, but are you sure you need that in your situation?” all I hear is “oh, you’re so smart and reasonable for noticing that, sure, I can help you with that”. That might also have something to do with liability. Maybe they just can’t say what they really think because there is the faintest chance that doing what I suggested could actually help me at some point - if they’d disadvise doing it and it later turns out it would have been useful, they’d possibly incur liability.

The ideal lawyer for me would be one that lets me cobble together my stuff as I think it needs to be for the business and then they would review my documents for obvious mistakes in legalese on a per-page-cost basis (so I know what ballpark I’m getting into). Unfortunately, I have no friend-of-the-family-lawyer who specializes on the relevant areas.

I don’t have a problem with paying some in order to gain a bit of confidence that the conent of my legal documents doesn’t obviously violate regulations / laws. In Germany, terms of use are subject to a large set of regulations - and when you misstep slightly with a formulation, things become invalid and fall back to base-line German contract law. This seems to be different in the US where contracts are very explicit and contract law seems to allow for a lot of things that would be in violation with German contract law.

I’m based in Germany so maybe you are interrested in my thoughts. We have large organizations including banks and insurance companies. More than once I’ve been contacted by legal departments which demand changes to our licence agreement “or they will not be able to buy”. Our licence terms are written by myself (with other licence agreements as a blueprint) and have been reviewed once by a lawyer (this is much less expensive than you might think).

Now I simply have a policy that I refuse to change my terms for any client if they don’t pay the additional lawyer fees to get these reviewed again (Of course I word this different for the client).

This has worked out quite well so far.

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Our licence terms are written by myself (with other licence agreements
as a blueprint) and have been reviewed once by a lawyer (this is much
less expensive than you might think).

It’s good to hear about someone doing it in exactly this way in Germany. Sometimes I think I’m too daring to even think of just writing things myself using templates - all the people I know are very safety-minded. Then I look at what some people on here write and I think… whoa no one seems to pay much attention to these issues, they just build their businesses and wing it. I supect it’s the cognitive dissonance between the worlds I’m in that makes the whole topic of “legal stuff” hard for me to grasp.

Actually, I hired someone for the privacy policy, but what I can get on my budget is a pretty general policy template and someone who looks over the site by means of a checklist (that they did that and pointed out shortcomings of the site was useful, though, and taught me something). I did rewrite the privacy policy to include information about what my site actually does with people’s data. But changing the policy means that, in order to cover my back, I should have it reviewed.

Btw, do you do business worldwide or are you focusing on Germany/EU B2B?

This is what I tried to do (in Australia) and it didn’t go according to plan.

I put all the documentation together, contacted a lawyer I’d been referred to, and asked for an indication of cost. They said $2000. Not a quote as such, but promised to contact me before exceeding that amount. That was more or less the most I was willing to pay, but like you, I thought: better safe than sorry.

They started reviewing the documents, a bit of back and forth, I get some feedback. And then they send me an invoice for $6500, with about a third of the work still to be done.

I questioned this, and they hit me with “well, it wasn’t a formal quote or estimate; you need to pay for the hours we’ve put in; going forward, if you contact us via email or phone we’ll charge you in minimum six minute blocks.”

It’s hard to engage with a service provided where they won’t give you an idea of cost up front, and when they do, don’t consider themselves in any way bound by it. I’m sure this isn’t all lawyers, but I simply can’t afford another experiment along those lines in order to find a good one.

(I also suspect that any good lawyer is going to be beyond my reach: if they’re any good, then they’ll be charging through the roof.)

Thanks, Daniel, for being so open about your experience. Maybe me being careful here isn’t that wrong after all.

It sounds to me like it’s really important to get everything in writing - specifically, the commitment not to exceed the hard limit without getting back to ask. That they ignored that is really bad.

The other thing seems to be… the more documentation I’d deliver to them, the more time they need to spend to read it and think through it. If I present barely any documentation, it’s a quick read but probably not comprehensive unless they’re clairvoyant. I suspect the actual challenge is to present things in a way that makes it easy and quick for the lawyer to do their part. What would be very interesting to me is how much you gave them to read that they could end up at such a quote?

My impression so far regarding writing terms on my own is… it does take time to turn a cheap template into something useful. It’s interesting, though, because I learn things I should probably know anyways.

I sent them the documents that I wanted reviewed before they said $2000. So they should have had some idea.

After the fact, they told me it would have been faster and cheaper to use their in-house boiler-plate as it would have needed less review.

Some questions:

  1. If your TOS clash with German law, and thus reverts to German law, what kind of fallout would you expect from that? Would you lose customers? Would you need to refund customers? Reputation damage?

  2. When would that get triggered? Audit? Complaint?

  3. In the case of a complaint, and especially if it gets to the point of litigation, are you going to be in a position to hire lawyers anyway?

I’ve reached the conclusion that there’s no point in getting to hung up on lawyers. If the relationship with my customers sours that much, then they can easily sink me with their in-house lawyers. The question of getting legal advice up-front, then, seems pretty much moot. (So I’ve come full circle since this thread, where many counseled that lawyers are an unnecessary expense.)

After the fact, they told me it would have been faster and cheaper to
use their in-house boiler-plate as it would have needed less review.

That’s horrible really. In particular, the part about them first saying they’d stop and notify you when they hit $2000 - I’m pretty sure that would be illegal over here (or at least I’d hope so). I do understand that there’s a huge difference between the legal situation and actually winning one’s case in practice.

At least the lawyers I contacted say that creating terms from scratch is likely cheaper. I can understand hat reusing something they trust will take them less time.

Your questions help a lot. Considering the possible consequences is definitely better than getting trapped in reading lots of lawyers’ copywriting (that is most likely at least a tiny bit biased) on the issue - incidentally, you find a lot of these sales pages when you search for information on the law, SEO is big in lawyer-land.

Regarding 1), I think that simply reverting to German law isn’t the bad part, usually. (Except for some really weird cases where courts decided that, when you don’t have a SLA you guarantee 100% uptime - and similar such nonsense that opens the doors for legal trolls).

What can happen when TOS clash with the law is that competition laws give my competitors the right to send an adhortatory letter (that would be the answer to 2)). The consequence of that would be that I need to pay their lawyer fees (those they incurred through sending that adhortatory letter) and that I’m forced to sign a declaration to cease and desist that is enforced by penalty (which is no big deal as long as I make no mistake in setting up the document). The interpretation of law in court does evolve over time and so it can happen that a phrase that was fine a few years back is now a perfectly fine reason for sending such a letter. According to the copywriting of the lawyers, there’s a huge horde of rampant legal trolls that do nothing but sending such letters. How big the grain of truth in that claim is is unclear - I couldn’t find useful data on that.

I don’t really expect there to be any kind of legal action between me and my customers. The overwhelming majority of my customers won’t even have legal departments (and many would likely be very hard-pressed to pony up the money for a lawyer themselves, so they’d be more interested in resolving conflicts in an unbureaucratic way). I’m going to have generous money-back policies anyways and will be open to hearing and resolving complaints and problems - the goal is to make people happy so they stick around.

The time factor involved in litigation would be very annoying and troublesome - the publicity, however, might be useful. Whether I’ll be in the position to hire lawyers if someone or some unlikely event came along to sink my project largely depends on whether I have enough of a fan-base to support the project. While I could spend our family savings to hire lawyers, this would really be a last resort kind of thing.

Essentially, hiring lawyers raises the stakes by having another legal bill on the table. Over here, the loser pays it all. Since I currently do not have a limited liability legal structure thingy under which to operate, that means I’d be paying someone’s legal bill with my family savings anyways if I am ruled guilty. Maybe that’s really what I need: Some kind of limited liability corporation.

I read the other thread and that’s why I find it even more interesting to hear how things played out.

Hmm… I can think of another way how to get lawyers to comment on TOS: I could pick apart my TOS and submit the parts I’m insecure about as questions to QA-sites - the ones where you place a bounty on the answer. The worst thing that can happen is probably that no one answers (at least I know I won’t be spending more than expected).

I didn’t actually end up paying any more than $2000. I used the power of vague threats. (“I don’t want to take this any further, so could you please confirm by close of business that you’ll accept $2000.”) Surprised it worked on lawyers, actually.

That is a potential draw-back if you have competitors who want to fight dirty… but then, they’d have to get a lawyer to review your TOS, and if you’re only liable for the cost of sending the letter, and not the cost of the review, then it could actually be a cheap way to get your TOS reviewed…

I didn’t actually end up paying any more than $2000. I used the power of vague threats.

Well, they knew you were right. By showing them that you knew that too, you made it clear that this wasn’t a case where they had a realistic chance to “convince” you to pay for something you hadn’t even requested. Looks like some kind of business food chain thing for me. I suspect that, for lawyers, it would be pretty embarassing and reputation-damaging if they went to court over this and lost. So… yay for standing up for your rights!

if you’re only liable for the cost of sending the letter, and not the
cost of the review, then it could actually be a cheap way to get your TOS reviewed…

Haha, that’s a nice way to look at it if it worked that way. Unfortunately, the liability extends to any “damages” I’ve caused through my violation. So even if they can’t request I pay their effort of reviewing my TOS, there’ll be something that drives up the cost and if it’s imaginary damages that I’d have to dispute.

There’s always the option to fight back, though, if it gets particularly funny: E.g. when they aren’t even real competitors and the lawyer is their cousin, or their main business income is from sending friendly letters to “competitors”.

Sounds similar to patent trolls. What a pain. When faced with rent-seeking freeloaders like that, it can really take the charm out of starting a business.

What will you do in the end? Lawyer or not?

I’m writing these terms myself now - because it’s really in my best interest to have terms that exactly cover what I need. For that I bought a standard template for 7€ and I’m looking at similar websites’ TOS. So basically, I’m doing what you did.

When I change something, I research what the law says (legal texts, court rulings, and lawyer blog entries that discuss the matter without driveling on about the horrible consequences you face if you don’t employ a lawyer) in order not to make any totally obvious mistake and in order to understand what I’m actually requesting my users to agree to.

I’m pretty much done with the rewriting - now the biggest issues are

  1. finding out if the clauses in my terms are valid, and
  2. finding out whether I’m missing something that could be important or helpful.

For some clauses, I trust myself to successfully do 1). For some I don’t. I’ll make a list of clauses that I’m insecure about or which are particularly important to be correct. Then, I’ll have only the important clauses on the list reviewed/replaced by a lawyer.

Regarding what to do about 2), I’m unsure. Did the lawyer find clauses that were missing in your TOS during review?

The most important clause is really that I can change the TOS later and terminate the contracts with those people who don’t agree to the new TOS. If that clause were invalid it would be pretty bad.

No, they didn’t find any missing clauses during the review. My situation was a little bit different. It was actually two documents they were reviewing. One, a subscription agreement to cover the software. I’d written that. The other was a professional services agreement to cover any customisation, integration, training, on-boarding, and so on. That was the customers standard services agreement. They did feel that several of those clauses ‘over-reached’, and suggested they be removed or modified. That was probably the most valuable part of the review.

It sounds like you’re being very thorough. Perhaps too thorough? I often struggle to allocate my time to the activities that are most likely to contribute to my success, so I know it’s difficult sometimes to determine just how vital something is or isn’t to the viability of your business.

Have you time-boxed getting these TOS finalised? Don’t let the perfect be the enemy of the good!

They did feel that several of those clauses ‘over-reached’, and suggested they be removed or modified. That was probably the most valuable part of the review.

That makes a lot of sense to me. That would be very valuable to me too.

Have you time-boxed getting these TOS finalised? Don’t let the perfect be the enemy of the good!

You’re right, I’m trying to be too thorough and it’s also procrastination to be working on these for so long instead of doing something that will actually lead to something useful. Goal: be done with it tomorrow and start review process with external help.

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