A lawyer has years of specialized education and professional practice in contracts, legal language, the laws that apply to contractual agreements, and contractual negotiations. I negotiate the money (i.e. the advance sums) for my publishing deals myself, since placing a monetary value on my work is a question of what the market will bear, rather than a question of contract law. But once that's agreed on, I bring in my literary lawyer (i.e. a lawyer who specializes in this industry) to negotiate the rest of the contract, for the following reasons:
A publishing contract with a major house is a long and complex legal document; it clearly makes sense for me to hire someone to assist me with it who is an expert in this area. I am knowledgeable about publishing contracts (and I certainly ought to be, after so many years in the business), but I am not an expert on legal language or contract law. Moreover, a literary lawyer, as someone whose full-time profession includes negotiating many publishing contracts, has more extensive knowledge of recent trends and parameters in publishing contracts than I do.
The publisher has a lawyer or legal department advising them on their contracts; therefore, it would make no sense whatsoever for me, as the other party in this binding legal agreement, not to have a lawyer advising me, too. Handling legal negotiations inexpertly on my own would put me at a clear and foolish disadvantage—and why on earth would I want to do that to myself in my professional business transactions and contractual negotiations?
A publishing house's boilerplate contract (which is what is presented to you if you're entering your first negotiation with any given publisher) was written by the publisher's lawyers or legal department, and its terms (sensibly) favor the publisher, not the author. Therefore, every boilerplate contract presented to you by a publisher must be negotiated to create a fair balance for you, the other party in this long-term, binding, legal agreement.
(Note: This is equally true of boilerplate agency-client agreements, and certainly true of increasingly prevalent scenario these days wherein literary agents are setting themselves up as their own clients' publishers (wherein the author is being "advised" on the publishing contract by the agent, who is, er, the other party in the agreement—a stunningly unethical situation).)
Contractual negotiations are a learned skill—one that (good) lawyers are trained in during law school. Additionally, when disagreements lead to tension during negotiations (ex. exactly how the warranty clause should be worded), it's better for your relationship with your editor if those disagreements are discussed between your legal representative and the publisher, rather than directly involving you. I have also found that contractual negotiations require a great deal of nagging at most houses (i.e. publishers tend to be geologically slow about responding during negotiations)—and, again, it's better for your relationship with your editor (and probably also better for your nerves and stamina) if your legal representative is the person prodding the publisher for a response on a regular basis.
What do you mean by "literary lawyer?"
Like many other forms of business, the publishing world is specialized. Do not retain a lawyer for your publishing business who is your well-intentioned brother-in-law or spouse, your family lawyer, someone who represents football players, or who deals in real estate law. That is no more intelligent than visiting a dentist because you need glasses. Retain an attorney whose regular professional practice actively focuses on or includes representing writers in the publishing industry.
How do I know if I need a literary lawyer?
If you have a contract to negotiate in the publishing world (usually with a publisher; sometimes with another sort of media entity acquiring subsidiary or derivative rights to your work; or possibly with a literary agent who has sent you an agreement to sign), it's wise to have a lawyer advising you and negotiating on your behalf. These are business contracts which commit you and your work, usually for many years. Unless you know exactly what the contract says, completely understand its ramifications, and are skillful in negotiating better contractual terms for yourself, you would be well-advised to retain a literary lawyer.
(Remember: Every company that puts a contract in front of you has a lawyer or legal department advising them; it makes no sense whatsoever for you, as the other party in that negotiation, not to have legal advice, too.)
You may well also need a literary lawyer if you have a legal problem arising from your writing career. For example: if you're accused of copyright infringement; if your own copyright has been violated (ex. plagiarized or pirated); if a publisher has violated the terms of its contract with you, or if a publisher is claiming that you have violated those terms; if you and a literary agency have a serious dispute which you cannot resolve; if you want to make a will which includes disposition of your literary estate; and so on.
In general, how does a literary lawyer function?
A lawyer works on the basis of hourly fees, rather than a commission on your earnings (a commission is how a literary agent works). You will be billed for and will pay for any time the lawyer spends working on your behalf, and the bill you receive should itemize how the time was spent. The lawyer should clarify with you up front what his/her fees are, and you may be asked to pay a retainer fee (ex. one hour of billable time) in advance at the start of the association. The billable time will usually be divided into reasonable increments (such as 10 or 15 minutes) so that you're paying for a few minutes, rather than a whole hour, if you and your lawyer exchange a couple of quick emails, for example.
(Remember: Any time the attorney spends on your business—emailing, talking by phone, reviewing documents, etc.—is billed to you; so interact wisely and use the time efficiently.)
You can and should discuss the parameters of what the lawyer's duties will entail on any given matter. Also, keep in mind that a lawyer's role is limited and specific: An attorney doesn't market and sell your work, advise you about the marketplace, or strategize your next career move with you; he advises you about legal matters. (Note: I negotiate the advance sums in my contracts myself, and I only ask my lawyer to negotiate the contractual clauses. However, based on what you and your lawyer determine, s/he may also be willing to handle the monetary negotiations for you; it is not the attorney's role, however, to advise you what your work is "worth" or how much money to ask for, expect, or settle on. You will be in charge of decisions about the sums involved, even if you pay the lawyer to communicate with the publisher about it.)
You should also discuss your financial parameters with your lawyer. If you're working with limited funds and need to budget your use of the lawyer's time, say so clearly.
For example, let's say that paying a lawyer to negotiate the contract would eat your entire advance. In that case, perhaps you can arrange to pay one hour's fee for the lawyer to review the contract and advise you about it, and then you can conduct the contractual negotiations yourself, armed with this information. This is perfectly feasible with most small-press or foreign-rights contracts, for example, which are usually short and simple. (The contracts at most major houses are very long and complicated, however, and it would be wise to scrape up the money to have the lawyer deal with it for you, since those negotiations can be complex.)
(Also keep in mind: Once you have your own well-negotiated boilerplate at a publishing house, your subsequent negotiations at that same house will probably be much shorter and quicker (since you'll typically be starting from the contract terms you all agreed on last time), and so your legal fees for subsequent contractual negotiations at the same house will usually be much lower.)
Finally, a lawyer may sometimes be unable to work on your legal matter due to a conflict of interest. This is one reason it's good to have a back-up plan; if my attorney couldn't handle something for me due to a conflict of interest, I have a personal shortlist of which literary lawyers I'd contact next. (The lawyers on my own shortlist are listed in this directory.)
How do I choose a literary lawyer?
Getting personal referrals/recommendations from other writers is a good way to start whittling down your choices.
You can consider everyone in my Directory of Literary Lawyers a personal referral from me. This isn't a list of every reputable literary lawyer out there; this is a list of lawyers whom I know personally or by reputation (i.e. they've worked with friends of mine).
Next, take a look at their website profiles, and decide whose background or self-presentation seems to suit you best. Then approach one or more of them via phone or email; and choose the one whose response makes you feel the most confident or comfortable.
(Please do not ask me to recommend a specific lawyer to you. I am happy to make personal referrals of these attorneys, but I am not interested in matchmaking.)
Then if you're happy with the service you get, stick with the lawyer; if you're not satisfied, move on to another one after your bill is paid. Retaining a lawyer (and dropping one) is much less complicated than hiring or firing an agent, since it's a much simpler and more clear-cut type of business association. However, finding an attorney you're generally happy with and choose to keep using over time is the best scenario, since that lawyer then becomes familiar with your business issues, with your way of doing business, and with the various players in your business dealings.