WAY OT: Apple V Apple. Legal lunacy?

[Alan Golub]

I hear you, Jeff. As a lawyer, publisher, and hobbyist software developer, I
hear you loud and clear.

I can't speak for the lawyers you've worked with, but only from my own
experiences in the legal profession after 12 years. Here are some things to
consider:

1. Most of the lawyers I have met and worked with are straight-shooters. To
try to make something complex out of what should be simple for the sole
purpose of creating legal problems down the road is a violation of the rules
of ethics and conduct that govern lawyers across the country. If you think
your lawyer is doing this, it's past time to find a new lawyer.

2. As in every profession, there are folks who are good at what they do, and
folks who are ... well, not so good. If your lawyer is doing something that
you feel is not your best interest, see if he/she can explain it to you in a
way that satisfies you completely. If he/she can't -- well, as long as it's
legal, you can instruct your lawyer to do it YOUR way. Alternatively, and
again, it may be time to find a new lawyer.

3. Contracts can be tough. I've negotiated my fair share, and I've litigated
MORE than my fair share of contracts that I DIDN'T negotiate. In drafting
contracts, lawyers call upon their expertise to try to anticipate problems
and pitfalls, and to make clear the parties' intent so that when something
bad happens, the contract spells out how things should be handled. The
problems come when the parties CAN'T agree -- then lawyers tend to massage
the language, perhaps making it ambiguous so that if a problem comes up, the
language at least ARGUABLY supports a view that favors the client. The idea
is that ambiguous language can at least serve as the basis for a good faith
argument that the contract should be interpreted a certain way -- in many
situations, this can be better than a contract that simply doesn't address
the issue at all. Mind you, the lawyer probably isn't intentionally trying
to make something ambiguous -- it just BECOMES ambiguous as he/she
negotiates one draft after another with the lawyer on the other side. The
end result is language that both sides can live with because neither side is
getting exactly what they want. When BOTH sides feel they have the upper
hand, it's usually the contract language that suffers, becoming ambiguous
enough to support both sides' interpretation.

And that, Jeff, is the stuff that law suits are made of. But a lawyer has
done his job when he's highlighted the potential problems/pitfalls for his
client, negotiated away from those problems as much as possible, and
explained the reason/rationale behind the whole process for the client to
make an educated decision about whether the deal still represents good and
fair value when negotiations are done.

Unfortunately, even then, there's no guaranty against litigation. When a
dispute arises, a litigator who truly represents his client's best interests
should recommend first and foremost that the parties try to work it out
without the filing of a law suit. Once you go down that road, it's usually
long and hard, and retreat gets tougher with every step towards the
courthouse.

Anyway, just my own thoughts in defense of lawyers who always, always,
always try to do right by their clients. Thanks for listening.

ALAN S. GOLUB, ESQ.
Dwyer Golub & Isabel, P.C.
16 Furler Street
P.O. Box 437
Totowa, NJ 07511-0437
(T)  973-785-4100 Ext. 103
(F)  973-785-4477
(E)  asgolub at dgilaw.com
(W)  www.dgilaw.com




On 5/16/05 2:32 PM, "Jeffrey Reynolds" <jeff at siphonophore.com> wrote:

> this has gone back and forth with apple corps beginning by suing apple
> computer for the name. that one ended up with an agreement apple
> computer wouldn't get into music. then it flared up again with apple
> doing some midi stuff a while back and was renegotiated some and i
> thought i remember something when itunes was starting that they were at
> it again some.
> 
> but with the success of itunes and garage band has probably gotten
> apple corps believing some more of the apple pie should be theirs again
> and as most large contracts written in legalese there is a lot of room
> for folks to try lawsuits.
> 
> every time i have put a contract through lawyer approval they always
> object to things being written in plain english that lay things out in
> black and white (even though it is completely legal and binding). They
> always seem to want the wiggle room for a lawsuit even when you the
> client want a nice clean straight forward document and the lawsuits
> could be against you!
> 
> jeff
> 
> On May 13, 2005, at 9:19 PM, use-revolution-request at lists.runrev.com
> wrote:
> 
>> Actually, isn't it the other way around?  It sounds like Apple Corps is
>> suing Apple Computer over distributing music.
> 
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