Upon writing Practicalities of Securing a Law Book Publishing Agreement, I pondered on an aspect of that actual or potential experience which was addressed therein in only four bullet points, namely the issue of what is expected from publishers. It is the publisher, for the most part, which sets the rules of the game and drives the contractual conditions and process. As this is often a corporate entity negotiating with an individual, who is normally not represented by a publishing agent or a media lawyer, the parties are rarely equal, in terms of power and resources. There is nothing particularly startling, malicious or wrong with this, but it is wise for the author/editor (in effect, a supplier) to manage their own expectations.
The points previously made addressed the issues of early, pre-contact research, targeting, preparation, advice-taking and negotiation, the aim of which, in part, is to understand the mindset of the publisher and thereby smooth the path to a successful outcome. There are, however, several other factors which help to underpin good relationships and avoid disappointing surprises.
The need to conduct substantial research before contacting any publisher or even responding to enquiries from prospective publishers in search of an author or editor is critical. The reasons are as obvious as and similar to those applicable in any potential business relationship. However the benefits of prior research are greater still, when, as is the case, the legal and professional publishing industry is going through substantial transformation and, for example, an entity which might have considered itself to be a law publisher, ceases to do so and is no longer best structured to that end. This might be the case with the largest of the international professional information houses, with perhaps Wolters Kluwer being most vocal in its statement thereof. The indicators of their future directions, away from law publishing, are usually quite obvious. For example, Bloomberg BNA’s decision to change its brand name to Bloomberg Industry Group, might lead a prospective author or editor to speculate that dropping the BNA reference and not including words such as “law”, “legal”, “professional” and suchlike, signal a shift towards Bloomberg’s more generic business and financial data services being on offer. Taking a view on such indicators might prevent time-wasting, for almost certainly, such a shift, reflecting the fact that the market is shrinking, might mean that they will no longer offer an appropriate home for the special characteristics of the publishing relationship. One encounters prospective authors who invest substantial long-term effort and emotion in wanting to be published by a particularly favoured publisher, ignoring the reality that the latter has moved on. This can lead, almost inevitably, to disappointment and failure.
Even when the detailed research indicates that the target publisher seems to be the right one, to the extent that it is genuinely interested in publishing in the legal or professional markets, there is still much to discover. Chances are, as the market evolves, it will not be Thomson Reuters, Lexis Nexis, Wolters Kluwer or Bloomberg, the former two, at least, appearing to be confident about their current strategic developments in legal markets, but rather a smaller or even very small business or a professional/trade body of some sort, whose characteristics and structures are substantially different to what might be expected. Chances are, they will not be well-resourced, profitable and optimally effective in terms of sales, marketing and customer care. They may well appear to provide good emotional support and embrace their authors and editors as if they were family or close friends but that may not be enough, or indeed genuine. They are more likely to have issues of limited market reach, particularly in relation to foreign markets, take a defensive or hostile view on technological opportunities, be narrow on subject range and knowledge and relatively weak in their ability to negotiate with industry partners such as co-publishers, distributors and production providers. Their size and range of experience may, on the one hand, cause them to be desperate to attract authors, which may, in the short term, create an advantage. On the other hand, their decision-making and advice to authors may be based on their limited experience and the narrowness of their competence; it may be more subjective than objective. Inasmuch as the diminishing skills, capabilities and resources to effect meaningful law book publishing decline, there may be some level of increase in enthusiasm in the adjacent world of technology-driven legal information and guidance and this may be of interest to aspiring authors. The partnership of vLex and LexBlog might indicate, in limited ways, some of the evolutionary direction of law publishing.
At all times, it must be stressed that while the author invests time and reputation, in normal, though not all circumstances, the publishers provide the money and take most of the financial risk, which can be terminal in the case of some of the smaller businesses. Their guidance, rules and opinions expressed are almost certainly for their own benefit and survival rather than for those of the author, but their wish and objectives are to succeed to the relative benefits of both. Almost certainly, the individual publishing representative conducting negotiations, perhaps an in-house editor, will be honourable and acting in good faith but the pressures behind them might be otherwise. As Verna Milner writes, regarding the guidelines for the conduct of such negotiations, “If it were to be actually followed it would make so many lives far less stressed. Fewer editors on long-term sick leave etc.” They may be good people in not so good situations. In the dedicated law publishers’ defence, however, an author should not be surprised when their desire to deviate in the legal analytical text away from the narrow topic into fictional, spiritual and other unrelated fantasies is rebuked. Law publishers care and know about law and/or legal context and an author’s desire to introduce the book with analogies from Alice in Wonderland, Harry Potter, Ulysses or The Bible and its equivalents may be discouraged, not at all least in the interests of cost.
As with advice offered by the publishers, their contracts and the negotiations underpinning them are for their benefit to a much greater extent than they are for the author, so that the terms and drafting will be led by them. Often, they are taken or derived from such industry guides as Clark’s Publishing Agreements: A Book of Precedents, produced by law publisher, Bloomsbury Professional. One risk to note is where smaller publishers seek to adapt provisions of the precedents for their own benefit but without sufficient knowledge of law. It is possible to find agreements on offer which lack the fundamental requirements of contract law, thanks to amateur and self-serving adaptation. Of course, various bodies, such as the Society of Authors, exist to protect the interests of members, but legal authors are unlikely to feature significantly among them and be represented by agents. The issues surrounding Open Access law publishing present a whole new set of challenges and opportunities for the future. The use of content for journalistic, online, artificial intelligence, expert system purposes and in support of online transactional and algorithmic tools takes the relative simple into more contentious territory, sometimes for little reward.
There are basic criteria which any author or editor ought to expect but, as in any environment, are frequently absent; they include efficiency, effectiveness, good manners and respect, at minimum recognising that without authors there would be no publishers. Yet often one encounters delay in responses to correspondence and in decision-making, together with promises made and subsequently broken. Publishing schedules, the strict adherence to which should be at the heart of the special nature of law and tax publishing, are frequently disregarded or even non-existent. For balance, it should be stressed that legal authors and editors, amid their many familiar weaknesses and flaws, are often notoriously bad at maintaining schedules too.
The application of market-focused optimum quality standards of production, design and presentation ought to be expected from and encouraged by publishers. Usually, my own first search is to the back of a book to discover if there is an index and if it is an appropriate one. The same applies to tables of cases and statutes. I believe that the absence of them, in normal circumstances, is a good reason to be critical of the finished product.
One might expect great or even competent levels of subject knowledge from law publishers but to a great extent relevant training, sourcing of specialist in-house and permanent staff, setting and maintaining quality standards, industry knowledge and author care are things of the distant past. Authors frequently encounter the very opposites, reporting lack of continuity from publishing staff, little or no subject or market knowledge and the absence of specialist or generic editing. Such functions that do remain are usually outsourced to people without specific training or supervision, sometimes to third-party entities in the developing world. In terms of editorial protection, the external author or editor is sometimes on her/his own, and many publishing contracts will reflect this.
As is frequently said, “it’s a dirty job but somebody has to do it”. Be not deterred.