How to hire a software audit law firm – Top 5 Tips
We get calls all the time from companies both large and small that have hired a lawyer to represent them in a software audit. Then, after the case gets going, something happens (a “red flag” is raised) where the business owner begins to question their lawyer, whether a corporate in-house attorney, or outside counsel hired specifically to represent them in a software audit (for example with the software alliance, SIIA, Microsoft or Autodesk). Sometimes it is a crucial admission of willful copyright infringement that leads to a staggering settlement amount (yes, we have seen demand in the neighborhood of half a million dollars or more – yes, for software). Other times it is not feeling like their attorney is fighting for them. Sometimes it has to do with the settlement terms. At any rate, when you get into this position and feel like a change of counsel is required, we can help.
CLICK HERE FOR OUR VIDEO ON POTENTIAL COPYRIGHT DAMAGES.
CLICK HERE FOR OUR VIDEO ON POSSIBLE PIRATING / INFRINGEMENT DEFENSES
Top 5 things to look for in a audit firm
1. Look at their website, do they handle intellectual property law?
One of the first big problems I see in clients that are considering switching law firm is that when they tell me the name of the lawyer and I check their website it looks like attorney practices in family law, or general contracts law, or something along those lines. While this does not automatically mean you made the wrong decision, this area of law is extremely unique and if your attorney has never dealt with companies like Autodesk (cases handled through Donahue Fitzgerald firm) or BSA (which uses a team of regional lawyers) it can often be difficult for them to understand the dynamics of the audit, and to know what a good settlement amount it (and then to make sure you get the best terms in a settlement agreement). At any rate, this is one of the first things I would look for as an indicator whether or not the proposed or current attorney might be a good fit.
We actually had one client call us again and again. They had an attorney who had “watched all my videos” (which is flattering) but apparently he could not work his way through the audit to the satisfaction of this clients and they kept calling. This is not the best position to be in obviously. In these cases you might do your company justice by thanking the old lawyer and retaining our firm. Just something to think about.
2. Does your IP lawyer have specific software audit experience?
The next question is does your lawyer have verifiable EXPERIENCE in this area of law? How many cases have they handled? How long have they been practicing in this area of law. For one, I can tell you I see new “copycat” lawyers coming up all the time trying to get into this area, or in the are of copyright law in general, and if you have not been in the trenches so to speak, handling an audit that could lead to hundreds of thousands of dollars in legal liability is perhaps not the best move for your company. For officers and directors of a corporation or LLC, you have a duty in most cases to make sound business decisions. This is even more important to note when officers and directors themselves are sometimes threatened with legal liability (personal liability that could attach to the homes and other assets) so it is crucial to make sure this is not the lawyer “first rodeo” so to speak. Ask them how many cases they have handled with the BSA (if they don't say 50 or more I would probably pass). As for Autodesk audits, same thing, there are serious benefits to your firm by hiring a firm that knows the players at the other firms, and knows the general range of deals that can be had. There are many different negotiation techniques depending on what firm is handling the case. We know the players in this area, and they know us.
3. Do they have client reviews that you can see?
Some lawyers will say “oh don't worry I am a trial lawyer, or I have handled hundreds of mediations I can handle a simple software licensing review.” These counsel need to be closely examined. Do they have verifiable results they can point to or do they just feel confident in their services? We have a slew of client reviews on our attorney Avvo review site. This shows a small sample of clients who were willing to recommend us in copyright and/or software cases. Lawyers who cannot show you this evidence, may have an hard time really selling your case and obtaining the best results you are entitled to push for. For example, a copyright counsel that agrees to pay an infringement penalty of 3X, may not be doing you justice as might the seasoned software negotiator that may be able to save you thousands upon thousands of dollars simply by knowing which buttons to push. In this area of law, experience matters more than anything and we are one of the tops, if not the top technology and Intellectual property law firm in California, and likely nationwide. We have handled a slew of audits for companies both large and small across the United States.
4. Does your attorney have experience in the federal courts?
When new lawyers retained, it is common for attorney on both sides to look up the website and profiles of the other attorneys on their website. One thing we look for is to see if the auditing lawyer has experience in federal courts. This is important because in some cases the negotiate gets heated and threats of lawsuits, and sometimes even report the software pirates to the authorities for copyright crimes can surface as ways to try to get leverage in the negotiation. When the discussion turns in this direction, its important to know if the person you are going up against has legal experience in federal courts (where these copyright infringement types of claims get filed). For us, we have a vast amount of experience working in these federal courts around the United States and we love it there. Many other attorneys don't love it because these courts work on a different set of rules call ed “The Federal Rules of Civil Procedures.” So, having a lawyer not worried about these difference in laws and legal standards can be a big hindrance to your case, and this highlights the importance of hiring an audit defense firm that has the experience, know-how, track record of success and a record of strong advocacy.
5. Do you have a good “vibe” and personal experience with your lawyer?
This is last, but should not be least. Your software counsel is your life line. You want someone that (a) answers your calls with an hour two, (b) explains things in clear language, (c) explains the strengths and weaknesses of your case and (d) Can help you fight for the best possible financial deal and terms of settlement and to clear up any loose ends. We are strong advocates for our clients because we know what's at stake = money, and potentially your business reputation if a confidentiality provision is not able to be negotiate allowing the software publisher like Siemens, Solidworks, Adobe or other who may wish to issue a ‘press release” to help their “anti-piracy” campaigns. We can help minimize the legal exposure in this area.
Bottom line, if you do not feel like you are getting this level of service from you software licensing team, you are free to get a second opinion. And if you decide that you would rather use our law firm that continuing with what you are using now, you have a right to fire that counsel, and hire us to finish the case. We never advocate for business owners severing the relationship, (as that has to be an independent decision), but once made, usually there is no issues with transferring the case over to our firm (its your file after all) and we can help take the case across the finish line.
Contact us for a free initial consultation
If you want a free initial review of your case call us at (877) 276-5084. While we will not provide “second opinions” or criticize another lawyer's work, we will discuss your case in general terms and will give you an idea of what we think we can do for you. We offer low flat rate legal fees for non-litigation software audit cases.