10/27/08 10/27/08

Ten New Rules of Legal Marketing

Legal Marketing has changed. It used to be enough to keep an ad in the yellow pages and belong to the Rotary Club. Not anymore. Times are tough, so I present to you Ten "New" Rules of Legal Marketing. Let me know what you think.

1. "My lawyer can beat up your lawyer" isn't a marketing strategy. "My lawyer will call me back before yours will" is.

2. Google tells me there are 337,000 "Full Service Law Firms” out there. Which one was yours again?

3. Unless the person who founded your firm 100 years ago is still alive and practicing law, he's completely irrelevant to every client who's thinking of hiring you.

4. Market to a "want" not to a "need." By the time your clients realize they "need" you, it's often too late -- for them and for you.

5. Your “keep great clients happy” budget should exceed your “try to get new clients” budget by at least 3:1.

6. Thanksgiving cards say you're thankful for your clients' business. Christmas cards say you're just like everybody else.

7. Having the scales of justice on your business card says you're a lawyer -- an old, stodgy, unimaginative, do-what-everyone-else-has-done-for-fifty-years lawyer. Same is true for your yellow pages ad.

8. Speaking of yellow pages, don’t abdicate your marketing strategy to their salespeople. They don’t know marketing. They only know how to sell you a bigger ad each year.

9. Your future clients have been living their entire lives online and will expect the same from you. If you’re invisible on the web, you won’t exist to them.

10. The single best marketing strategy in the world is to find your best clients and ask them, "How do I get more clients like you?"

Look for ten more rules next month. For hundreds of legal marketing ideas, check out my Marketing Category on this blog. And if you want to get these in real time, follow me on Twitter.

7/28/05 7/28/05

Five by Five Redux - Jennifer Rice

Last but not least are the wonderful suggestions of Jennifer Rice, the author of the What's Your Brand Mantra? weblog, and president and founder of Mantra Brand Communications, a brand strategy consultancy representing the voice of the customer within client organizations.

1. Focus. Pick a group like women business owners and learn what their needs are. The deeper you can understand a small group, the more effectively you can win business. You’ll begin attracting more new clients within that group because you’ll have built credibility and trust among other women just like them. Be sure to collect testimonials!

2. Find out how they perceive lawyers. Ask what their previous experience has been with lawyers; if they’ve had a bad experience, find out why. This will tell you what objections (logical and emotional) that you’ll need to overcome. You’ll be light-years ahead of the pack simply by finding out where she’s coming from.

3. If you’re a male attorney, check out how female attorneys market to women. Or find a female attorney with whom you don’t compete directly; learn new ideas and tag-team at networking events. Female attorneys are probably your strongest competition; personally, I prefer to work with women because the perceived trust level is higher. But a non-competing female attorney (or other professional like a CPA) can be a great advocate, referral partner and mentor for you.

4. Women rely on intuition more than men. Guys, you might think your argument is flawlessly logical, but women don’t make linear decisions. We pick up on small cues, usually subliminally, and incorporate emotion into our decision-making process. The end result is our ‘gut instinct’. If that bugs you, don’t try to get women clients. You won’t be on the same wavelength – which you may not pick up on, but women definitely will!

5. Yours is a relationship business; traditional advertising won’t be effective. Practice your listening and empathy skills on your wife, girlfriend, sister, and any woman that crosses your path. The quality of your relationships with the women in your life is a perfect barometer for your ability to attract female clients!

7/28/05 7/28/05

Five by Five Redux - Yvonne DiVita

We're hitting the home stretch here in Week One of the Five by Five. Up next for your consideration are the suggestions of Yvonne DiVita, a business and technology writer, president of Windsor Media Enterprises, LLC, and author of “Dickless Marketing: Smart Marketing to Women Online." Yvonne also writes the Lip-Sticking weblog.

Yvonne's responses:

The 5 Worst Mistakes a lawyer can make when marketing to potential female clients:

1. Assuming a condescending attitude. We know you went to law school, we accept that you know more about the law than we do---that's why we're there--but don't pat us on the hand with, "Don't worry, I'll take care of everything," blather or write your sales copy as if you're God.

2. Passing out flyers that have only men's pictures on them or heavily promote the executives in your firm--who all happen to be male! Or, looking around us for the 'man' in our lives.

3. Going overboard with pink. Guess what: Pink used to be the dominant color for boys. It was considered a watered down red and too ferocious for girls. Girls were dressed in blue. This is pretty much a 'christian' concept, notice that the Virgin Mary is always in blue. Today, women have adopted pink wholeheartedly, but that does not mean you should have a pink flowery background on your website or throughout your offices. Trying too hard to appeal to us using the color pink will backfire every time. We know frivolity when we see it!

4. Immediately calling us by our first name. Not many women openly admit this, but we are selective about getting personal with people. Getting to a first name basis is our choice, not yours. It's Ms. or Mrs. or Miss, and only Jane, Jill, or Sally if we offer that option. Business etiquette dictates a formal introduction. If you rush right into using our first name, we may not show it, but we're bristling inside.

5. Talking over us. Two ways this can happen: on your website or in your sales literature, using too much legalese...find a way to simplify your information without making us feel stupid. (hire a writer, if need be.) If we're visiting you in your office for the first time, don't interrupt before we're finished explaining why we're there. You may instinctively know what we mean after only a sentence or two, but let us finish anyway.

6. Oops...you only asked for 5. Okay...never mind.

Now, the 5 best things a lawyer can do to secure a female's business:

1. Make eye contact. In your literature, put women's faces in prominent places and use women's names---either clients who have given you permission to use their names, or made-up clients that represent smart, savvy women...yet, ones who may be overlooking critical needs you can provide.

2. Offer free consulting. I'm not saying you should "give away the store" but if you want our business, show us how knowledgable you are about what we need (there's that listening thing from #5 above), and that you not only can meet our needs but that you want to partner with us to solve whatever issue it is we came to you with.

3. Follow the lead of banks and offer specific programs aimed at women. Develop workshops for women entrepreneurs, for widows, for women entering into business partnerships, for single Moms, etc.

4. Expand your marketing focus to women in all walks of life. Approach women executives differently than you would approach stay at home Moms...do this by having separate marketing materials that speak to the individual's needs. Notice how financial firms have separate marketing materials for each service they offer, and they portray men and women together and separately.

5. ASK questions...and expect answers. Once in awhile, bring the stay at home Moms together with the business executives and entrepreneurs and listen to what they talk about. Build a community of women networking to solve family and business issues; they will ultimately see you as one of them and bring you more business.

6. Market 'couple' seminars or workshops to women not men. Show women and men together. Real life consists of real people, both male and female.Use the word partner...partnerships exist between couples, married, engaged, or merely cohabitating, and partnerships also exist between you and the clients you serve, making this word a powerful introduction to a long-term relationship.

7. Oops...there I go again...overkill.

7/28/05 7/28/05

Five by Five Redux - Anita Campbell

Our third distinguished participant is Anita Campbell, the founder, president, and chief consultant of Anita Campbell Associates Ltd., a business consulting firm specializing in helping businesses in the technology, retail and varied services sectors grow. Anita is also the co-author of the Small Business Trends weblog, most noted for its "Power Blog Reviews."

Anita's contributions to this week's Five by Five:

When entertaining, choose an entertainment that is not a sporting event, unless you know for sure the woman is a sports fan. One law firm I know invited half a dozen clients to a hands-on crafts class in making metal lanterns at the local museum. Intended to build creativity and encourage easy bonding, it was one of the most memorable client entertainments I have ever experienced. I can't recall a thing about any of the baseball, basketball, or (yawn) football games I've been invited to over the years. But ten years later, I still have the lantern and vivid memories of the experience.
Show visible commitment to women's business in general. For example, volunteer to serve on a Powerlink (an organization dedicated to advancing women's business) advisory panel. Speak at local meetings of NAWBO (National Association of Women Business Owners). And, make sure you have a user-friendly bio in your marketing materials detailing this kind of commitment.

Nominate the woman whose business you are trying to get for a business or community award. Ask her to serve on a charitable board with. Do something such as this to demonstrate that you hold her in high professional regard. Women like to be around lawyers who make them feel intelligent and worthy.

In a professional services business, your best bet for getting business from women, or from anyone for that matter, is referrals. Ask other professionals in adjacent but different fields for referrals. Create referral circles, for instance, with an accountant, a financial advisor, a marketing consultant, and a management consultant. Make sure that you seek out women professionals in creating these circles.

This is something you should always do, but be especially sure you do it when you are entertaining a woman. Be respectful with female support staff at all times. Same goes for female wait staff in restaurants. If you want to get business from women, you need to show sensitivity to women's issue. That's tough to do when you're belittling female support staff or berating a female server in a restaurant.

7/28/05 7/28/05

Five by Five Redux - Michele Miller

Up next is Michele Miller, author of the great WonderBranding: Marketing to Women weblog. She is now a partner in the Wizard of Ads, Inc. marketing firm, serving clients across North America. Michele is also the author of "The Natural Advantages of Women" (Wizard Academy Press), the audiobook that has been hailed for its concepts, principles, and new scientific information that explains how the female brain is "hardwired" for personal greatness. To watch a video of Michele, click here.

Michele's five ideas on the topic of the day:

R-E-S-P-E-C-T.
When marketing to a woman, never forget that her greatest strength lies in her individuality. You are not expected to treat a woman as being someone “special;” you are only expected to acknowledge and deal with her as an equal. Always assume that your potential client is smart and saavy. If you address a woman from that perspective, it will shine through your presentation and open many doors that are normally closed tight against the “typical” lawyer.

Give her the 4-1-1.
With four times as many connections between the left and right sides of the brain, women process information at very high rates of speed. They are not only masters of multi-tasking, they are expert gatherers of information and thrive on the word “share.” Approach your marketing from the “educational” angle and you will have clients for life – blogs, newsletters, free seminars, etc. are all excellent tools for positioning yourself as the lawyer who “cares and shares.”

Make it memorable.
Have something in your marketing toolbox that might not normally be associated with an attorney – something that shows you’ve connected with your potential client. Listening is key – what if you followed up an initial consult with a note or small gift that is related to a topic she discussed? It could be anything from the stock market to knitting. You have to go the extra mile here, but it creates clients for life.

How is the world inside your door?
Too often, business people forget that marketing is everything you do each day. Consistency of message is not just restricted to your marketing materials, website, ads, etc., but must extend to your office, and staff. Is your office conveniently located – is the parking lot safe? How is your office decorated – does it have a built-in comfort factor, or is it sterile and uninviting? What kind of magazines do you have in your waiting area…. is there reading material for both genders? How is the phone answered? The personal experience factor of a potential client is one of the biggest factors in your marketing campaign – the better the experience, the better you are at branding!

Who rates first?
As Howard Schulz, CEO of Starbucks says, “The customer comes second… employees come first.” He knows that if you focus on the happiness and stability of your employees, it naturally rubs off on to customers and clients. Are your employees given a “psychological contract” to try, succeed, and even sometimes fail if it’s for the betterment of your business? If they have your trust and training, they provide a confidence that often resonates more clearly to potential clients than anything you can do on your own.

7/28/05 7/28/05

Five by Five Redux

Just over a year ago, I asked five seriously cool women bloggers for their five thoughts on the following question(s):

What are the five worst mistakes a lawyer can make when marketing to a female potential client?
Alternatively, what are the five best things a lawyer can do to secure a female's business?

As I head to the Blogher conference, and after reading the posts again, I’m still amazed at how spot-on these women were. Ignore their advice at your peril.

7/26/05 7/26/05

Whew!

1718 posts in two days. I’m beat. I will have some pretty cool news to share with you on Monday, but until then, I’m doing “real work” for the next few days, then heading for Blogher on Friday. In honor of this wonderful event, I’m going to repost my first Five by Five from just over a year ago where five amazing women answered this question: What are the five worst mistakes a lawyer can make when marketing to a female potential client?

See ya next week!

1/29/05 1/29/05

Five by One - Serving Latino Clients

Quite some time ago, I asked several bloggers to participate in my next Five by Five, and answer the question: What five ways can lawyers better serve their Latino clients? I had a devil of a time rounding out my panel of five, but the one person who stepped up right away was Juan Guillermo Tornoe, author of the fantastic Hispanic Trending Blog. He posted his response to my question on his site here. Go check it out.

11/26/04 11/26/04

Five by Five - Ambivalent Ambroglio

Our final contributor to the Law Student Edition Five by Five is another anonymous law student, Ambivalent Imbroglio -- the only two-time 5x5 contbibutor.

1. Make classes smaller - especially in the first year. Classes of 100 or more people are an incredibly inefficient way to learn. They are an efficient way to move people through a degree program, but they are not a good way for those people to really learn anything. Law degrees should not be mechanically mass produced like automobiles. If you cut classes to a maximum of 20 students, you could cover the same amount of material twice as fast because you could approach the material much differently. Large classes allow for almost no discussion; therefore, law professors generally assign too much reading and spend all their class time trying to get one or two students to superficially summarize that reading and pull out one or two main points that the professor thinks important. Guess what? We can get the bulk of that from a commercial outline, and we don't need to mortgage our entire future for the pleasure. Other graduate programs in the humanities and social sciences offer a better model for classroom learning. There, classes are generally "seminars" of 12-16 students. A typical class begins with the professor doing exactly what most law professors do-asking some basic questions and highlighting some main points to make sure everyone has read and understood the material. The difference is, in a class of, say, 20 or fewer students, everyone can ask questions and all of this introductory matter can still be covered in a tiny fraction of the time it would take to do the same thing in a class of 100. In these smaller classes, professors then often give a mini "lecture" on the material, offering background that wasn't in the reading, and bringing in new material and perspectives for students to consider. Then the professor will generally begin asking more serious, in depth questions of individual students about the material, and the majority of class is discussion. This allows students to raise whatever issues or questions they'd like, and it ensures that those questions get treated seriously and that everyone can learn from both the questions and the answers. Finally, so much discussion exposes indefensible views and biases, while giving a fair airing to those for which legitimate arguments can be made. Having spent four years in such classes, I can say that they were much more difficult intellectually, and therefore much more rewarding. But more important, they're simply a much better format than the 100-per-class model for addressing the complex moral and ethical issues at stake in every area of the law. I won't attempt to seriously address the financial repercussions of cutting every law school class to a max of 20 students, but possible ways to cut current expenses include: cutting faculty pay by 20-40% at the top and 5-10% at the bottom (enough good people are dying to teach that this won't damage faculty too seriously; if you're a law professor in it for the money, you should get out, anyway); spending less money on aesthetic improvements (flatscreen monitors that are nice to look at but largely useless, lots of wood panelling, leather couches) that do very little to improve education but merely attempt to raise a law school's U.S. News rank; locating law schools in lower rent parts of cities and towns, etc.

2. If you must have large classes, make use of teaching assistants. Since it could be a while or never before law schools get to smaller law school classes, then fergoodness sake, make better use of your top 3Ls by employing them as teaching assistants in those enormous classes. Three-five TAs per 100 students could meet for an hour a week in small sections to lead discussion of the issues that get skimmed right over in class. They could also manage web discussion boards and class blogs where students would be encouraged (and required) to participate in the conversation. The goal of all of this would be to get every student engaged and thinking critically about the material, rather than simply trying to memorize rules and cases to regurgitate on an exam. The TAs could be paid or volunteers, but the experience could be good for a couple of credits for 3Ls-especially those who think they might one day like to teach.

3. Forget about "blackletter law" for the first semester or year. The first semester should be general legal history and theories of what law is, where it comes from, the possible ends it might serve, different legal systems around the world, and a basic introduction to major schools of thought about the law ("crits," formalists, law and econ, social justice, etc.). This new "context" curriculum for the first semester should also include serious examination of the difference between practicing law in the public interest v. practicing in the private interest-and isn't simply that one of them pays more money. Why rearrange the first semester or first-year curriculum? Because this would teach students what it means to ask questions about what they learn and show them where to look for both the questions and different perspectives on their answers. How can you think critically about a law and econ approach to torts if you don't know what "law and econ" means or what it stands in opposition to? You can't. And where in the current typical first year/first semester curriculum is a law student supposed to learn this? The idea seems to be that one of the 1L profs is bound to mention what law and econ means at some point, but the random approach is no way to show students the terrain on which they're going to live and work for their legal careers.

4. Drown professors in fines and peer opprobrium when they encourage students to become evil - even or especially when such encouragement is only implicit. From day one, my law school experience has been peppered with little jokes from professors and administrators through which they express their assumptions that their students are going to graduate and immediately begin doing anything for money, regardless of the moral or ethical consequences. These jokes come with a sort of wink in the form of, "I know none of you would ever rob six American Indian tribes blind, but the attorneys that did sure made a lot of money!" Ha. Ha. Ha. These jokes seem to come almost unconsciously from faculty, probably as a sort of cynical defensive mechanism they've developed to protect themselves from being paralyzed with horror by the awful things that lawyers sometimes do. However, here's where faculty need to take a serious stand; they should be condemning such humor and behavior in the strongest terms, making an example of any faculty member who feels it is professionally acceptable to suggest to students that, while it's officially wrong to lie, cheat, and steal, as an attorney, that's what you'll get paid for. The point of this reform is larger than putting an end to this form of dark humor in the classroom; the real objective is to require faculty to model good professional behavior to their students and to accept nothing less. This could be the beginning of a profession-wide renewed commitment to ethical lawyering. Faculty could join collectively in condemnation of every scandal that hits the news involving attorney misconduct, spending 5 minutes in each class pointing out what the attorney did wrong, and making sure every student understands that such behavior is a disgrace to the profession-not with a joke and a wink, but with serious and uncompromising disdain. The ABA could follow up by demanding that state bars institute serious, effective, and efficient malpractice grievance and punishment systems to help weed out the "bad apples" and begin showing the public that lawyers really aren't the slimy subhuman species they so often appear to be. So long as the profession-at every level-tacitly endorses lawyer crime, lawyers will continue to be criminals.

5. Make clinics, internships, and externships mandatory, and/or make a J.D. a two-year degree. Breadth in education is great; however, law students pay too much damned money to waste time in a third year of law school simply for the sake of being more well rounded. The law degree could be a 1-yr. degree plus a 1-2 year apprenticeship, or it could be a 2-yr. degree with no apprenticeship, and the world would not suffer one bit. In fact, society would benefit b/c more law students could get through law school with small enough debt loads that they could actually afford to work in the public interest instead of the corporate/private interest. Seven states already offer ways to gain bar membership w/one year of law school or less; more schools should support such programs and encourage them in their own jurisdictions.

11/26/04 11/26/04

Five by Five - Anthony Rickey

The next guest is Columbia law student Anthony Rickey, author of Three Years of Hell to Become the Devil:

First of all, thank you to the [non]billable hour for inviting me to one of his "Five by Five" forums. Before giving my five answers, I'd like to explain a bit of where I'm coming from. At the beginning of my 1L year, Scheherazade of Stay of Execution recommended that I read Patrick J. Schiltz, On Being A Happy, Healthy, and Ethical Member of an Unhealthy, Unhappy, and Unethical Profession, 52 Vand. L. Rev. 871 (1999). If you're a law student, or considering becoming a law student, I can't recommend it more highly. (Then go to Westlaw, check the papers citing it, and read some of the folks who disagree with Prof. Schiltz. It's a good habit to get into.)

I picked up two things from the piece. First, that there the profession of law contributes to a chronic unhappiness among many of its members. Second, addressing these flaws may involve a lot of small steps, but it also requires a great deal of what we used to call "blue-sky" thinking back when I held the august title of "online strategist" and advised my clients on how to change their business processes.

So, I'm taking my host's question very broadly and marking down the changes I would make if I had an infinite amount of political and social power, an unlimited budget, and more than enough rope to hang myself and ever co-conspirator I could ever hope to muster. These suggestions come from the perspective of a student skeptical of the justifications for leaving the practice of law as a profession rather than a business, so take them with however much salt you think needs to season them. But here goes.

1. Eliminate the ABA's accreditation system. The requirement for ABA accreditation of law schools preserves little but the high price of becoming (or retaining) a lawyer. To the extent that these are "one-size fits all" rules, they prevent us from coming up with new and innovative ways of addressing the problems of lawyers and legal education. From online law schools like Concord to more traditional ideas of apprenticeship, there should be more than one path to a career in the law.

Did you know that the following are requirements: Every law school must have its own law library (Standard 601), and these may not include only electronic sources (Standard 606); that library must have a full-time director (Standard 603), who must be responsible for library policy in association with a dean (Standard 602); every full-time faculty member must have their own office (Standard 701)?

None of these seem too unreasonable in themselves, until you think of the innovations they forbid. Why shouldn't all the law schools of New York City get together and contract out library services to some McLawLibrary? Why shouldn't first-year full-time professors be made to share offices if it meant more could be hired? And why shouldn't a school be able to survey its library usage and decide that for some things, paper is just a thing of the past? Does anyone really think that ignoring these requirements would result in substandard lawyers destined to fail the bar exam or underserve their clients? Is having a single micromanaged standard for the whole nation really in the best interests of justice, our economy, and our students?

2. Increase the signal-to-noise ratio in evaluation: One of the most frustrating aspects of my time in law school has been exactly how bad most signals of student success actually are. It's a familiar chestnut among first years that you will get your best grades in the classes you felt you did worst in and vice-versa. Not only is this true, it fosters an immense cynicism: many of those who are successful feel more lucky than justified, while many of those less fortunate have little guidance for the future. A number of the latter students comfort themselves with the idea that the whole system rests upon random chance--and to a degree they may very well be right.

In my best courses last year, I had a number of assignments throughout the course, generally graded by TAs. These helped me guess at what I could expect on the exam. Even better were those professors who encouraged us to pick up our papers after the exam and review what we'd written. One professor had a simple and direct rubric for figuring our grades; another had a multi-layered, multi-level grading process explained in exquisite detail. The former professor gave me one of my worst grades, the latter one of my best, but either way I understood how and why I'd received what I did.

In too many other cases, a review of my exam revealed a bright and shiny letter grade and a few squiggled comments that I swear to God reminded me more of classical Japanese than anything approaching English. When asked, one professor said that grading was a more holistic process, too difficult to pin down numerically. I can understand that feeling, but that's not an excuse: good feedback is what makes academic growth possible. Lack of feedback just makes the process look arbitrary.

Oh, yes, and by the way: make any grade curve center around something sensible, like a C+. B/B+ centered curves just increase the noise-level involved in grading because there's not enough differentiation in grades. An A should mean something extraordinary, not just "good."

3. Move EIP to the second semester of 2L year. I'm not giving away any secret here: at many law schools, most students accept crushing debt burdens in exchange for the promise of dramatically-increased future earnings. While there's always the pro bono contingent, many of us are going through this whole system because we want a job. Change how one gets that job, and every other motivation shifts.

At the moment, too much of legal job searching focuses on the first year of law school. With the early interview process starting about the same time as 2L year, the only thing employers see is first-year grades. Since most students expect to work for their summer firm--or at least they hope for an offer--1L grades become overemphasized. This makes no sense at all to me, because first-semester 1L grades measure two different things (to the extent that they measure anything at all): what one has learned in a given class, and how fast one has picked up on a very new and often very foreign system. In many cases, I think the second factor is much more important than the first. But if a law firm is hiring for the long haul, is this really the quality they're looking for?

Ideally, I'd get rid of the connection between 2L summer positions and final jobs, but I assume that this is driven at least partly by the law firms. Failing that, moving the entire process to the second semester of 2L year would increase by half the amount of information a law firm had to observe from a transcript. And at schools where 1L classes are fixed, some of the information would be much more indicative of an individual student's personality: that 2L semester is much more likely to include electives at most schools.

4. Describe the whole lawyer, not just grades. When I was searching for my 1L summer job, I was struck by an odd contradiction in my law school's rules: I wasn't allowed to put my GPA on my resume, but I could send a transcript to prospective employers. Now, most law firms have some serious resources devoted to recruiting. Wasn't it reasonable to expect that they'd just plonk my grades into a database that would spit out a GPA for them? (And indeed, this is what many of them did: I heard one recruitment coordinator typing my grades as she asked me about them over the phone.)

There's a lot of this in law school: when faced with the fact that the evaluative techniques are too rough to be truly meaningful, systems are put in place to artificially underemphasize them. The feeling seems to be, "The information revealed by our current technique (a grade-point) is imprecise, so let's have less information."

This is backwards. As already mentioned, a lot of this problem could be resolved by recentering grade curves and grading more granularly. But wouldn't it be better to have multiple systems of evaluation, each of them summarized on the transcript?

For instance, if a school truly wants to emphasize pro bono work, put the number of pro-bono hours a student has worked right on the transcript--and put it first. Want to give a student a chance to shine in his or her own particular area of interest? Let him or her choose an elective in the first year instead of competing in a uniform set of classes. Allow and even encourage students to do extracurricular legal work, pro bono or even for-profit, and put it on the transcript. Even better, if a school thinks a student's GPA doesn't accurately reflect the depth of the student, find a way to factor such things into the GPA itself.

5. New paths for students start differing new paths for professors. Too much of law school is built around "standard" patterns. Law students take the LSAT, get into the best school they can, work one or more summers at a firm, and end up an associate at one of those summer firms. Students compete to be on Law Review, and then compete for clerkships. Very rarely does anyone ask why. As Dahlia Lithwick puts it, "Not since the days of the Tonka backhoe and Malibu Skipper will you have so lunged for stuff in which you have no real interest, just because everyone else is lunging."

What struck me this summer was how much further up the line this consistancy goes. This summer I received an email from a student--not at my school--quite bitter about not having made law review, angry because now he'd "never become a professor." I tried to search out some advice--some page helpfully titled 'How to become an academic even if you didn't make law review'--and was shocked at how little I could find. The advice was almost always the same: get on the (not "a") journal, clerk as high up the chain as you can, and then start the application process after a few years of practice.

There's a certain sense of "as above, so below" to this system: so long as the majority of professors have the same background, they're going to tend to guide pupils through the same set of experiences. Students will see how their mentors have advanced, and emulate them. I'd love to be taught by a professor who was granted tenure not because of a particular piece of scholarship (a "tenure" article), but solely because of his skill with students (perhaps "tenure" students) or his prior history in practice. The mere existence of such teachers gives hope to those who, for whatever reason, choose a different path for their own career.

That probably sums up my five answers: law school and the legal profession will flourish when success can be reached by differing paths. Students should be able to enter the profession in different ways, free of the stultifying hand of the ABA. They should be evaluated honestly, but in ways that reflect the differing skills and values that they bring to the school, and that they will take with them into practice. And no matter the path they took to become an attorney, they should be able to follow that path straight back into academia.

Now, certainly that was enough rope to hang myself. As I said, take it with a grain of salt: it's a very large question, and if I knew the answers, I wouldn't be a student.

11/25/04 11/25/04

Five by Five - Jeremy Blachman

The third spot in our Law Student Five by Five is held down by Jeremy Blachman, author of the eponymous Jeremy's Blog. Jeremy is a 3L at Harvard who is not going to work for a law firm. Here are his five answers to our question, "What five things would you change about legal education?"

1. Okay, I’m going to start off bold. I think law schools ought to exert some collective energy to get the law firms off the campus until the third year of law school.

In a way, I feel like legal education is caught between two paradigms, and hasn’t figured out how to reconcile them. On the one hand, in a lot of ways, law school provides a very liberal arts-like education, with a lot of talk about legal theories and ways to think about the law, and very little comparative emphasis on the actual practice of law. On the other hand, from the moment you get to law school, you find yourself showered with information about law firms and how to get a job at one, and pulled toward this vocational emphasis. I think this creates a real inconsistency in trying to make sense of what the heck the point of law school is. Is the point to get a legal education, or is the point to get a law firm job? I think they’re pretending it’s the former, but really it’s just a cover for the latter.

At least here at Harvard, from the moment we arrive on campus 1L year, we’re invited to law firm receptions, information sessions, resume workshops, interview training, dress code seminars, job fairs, and handed printouts of 50-slide PowerPoint presentations on the process. We learn more about how to get hired by a law firm than what lawyers at law firms actually do. We learn more about the difference between cotton fiber resume paper and white linen resume paper than about the difference between corporate practice, litigation, and whatever the heck lawyers do if they don’t work at firms. We learn more about what to wear to an interview than why we should be thinking about going. So a few people get law firm jobs 1L summer, and the rest cry about how they didn’t. And then before school even starts 2L year, we’ve got resume deadlines and lists of firms to select and interviews to start preparing for.

2L fall meant half-filled classes while people flew out to visit law firms, and much more talk about the Vault rankings than about the merits of whatever we were supposed to be learning in class. By Thanksgiving of 2L year – less than halfway through law school – pretty much everyone has a law firm job lined up for the following summer, and since the firms can’t risk getting a bad reputation on campus by deciding not to give some of their summers full-time offers, everyone knows they’re set with a full-time job after law school, if that’s what they’re looking for. And the next year-and-eight-months is spent with one foot out the door.

As soon as the recruiting process was over, the collective energy of my law school class collapsed. Law school doesn’t matter anymore. Our grades don’t matter, our attendance doesn’t matter, the reading doesn’t matter, and learning doesn’t matter. Part of the problem is that classes just aren’t that engaging (see #3), but part of the problem is that if the point was to get a job, you’re done. Having your post-graduation outcome set for you less than halfway through school is stupid. It undercuts the whole point of being here for three years.

The presence of law firm recruiting on campus largely changes law school from an educational experience to a job mill. But I don’t know what the answer is. Obviously, there are lots of students who are here expressly to get a law firm job, or at least that’s one of the reasons they’re here. And that’s completely fair. So I don’t think we can or should necessarily forbid students to seek out firm jobs, or law firms to seek out students. But there ought to be some way to postpone the process a bit. In the broader sense, law schools need to decide their mission: are they trying to train lawyers for firm jobs, or is the purpose more high-minded than that? If they’re just training people to work for law firms, the education we get matches up poorly (see #2). But if the goal is something more, the presence of law firm recruiting and the emphasis given to it from the very start of 1L year is desperately hurting.

2. And now, the flip side of #1. If law schools are trying to train their students to be practicing attorneys, no one has told the people writing the curriculum.

It seems like the energies here are largely spent on this theoretical education, reading old English cases, figuring out where the law comes from, trying to understand the reasoning behind different legal regimes. All interesting and valuable stuff, for sure. But then the practical aspects of what lawyers actually do are shoved off, at least here, into a pass/fail “legal writing” class taught by “instructors” and given no respect at all.

Law school hasn’t provided a particularly good sense of what lawyers do on the job, or how to actually practice law. We learn how to think about the law, but I took contracts and don’t know how to write one. I took civil procedure and don’t know how to file a lawsuit. I didn’t take evidence, and no one’s making me. Even after spending a summer at a law firm, I’m still not entirely sure what lawyers do. And lawyers who don’t work at law firms? Are there any? What do they do?

I think law school does a relatively poor job of introducing us to the range of careers that lawyers have, and what the day-to-day practice of law in a variety of settings is like. I have heard the excuse given that you can only learn these things on the job, and law school’s role is just to provide a foundation. That’s fine, but a little more emphasis on the practical side of things – especially if we’re going to have to decide our career paths before we’re even halfway through – would be nice, and not just as part of a pass/fail class designed not to be taken seriously.

3. These problems are all interrelated to some degree. The timing of the recruiting process making more than half of law school feel irrelevant wouldn’t be such a big deal if classes were engaging for their own sake.

I expected the quality of teaching at law school to be a great deal better than it has been. I can’t help but think that for a good number of professors, the teaching is secondary – as far as why they got hired, and as far as what they spend their time on once they’re on the faculty – to publishing papers. It’s great to be taught by top-notch scholars; it would be even better if they could actually teach. I have had some absolutely brilliant professors; having them has made me see how good a law school class could be, and has made me disappointed with the rest of my professors, who haven’t even come close. Part of it is that they don’t seem like they’ve prepared for class, they haven’t read the materials, they haven’t thought about what they’re going to say before they start talking, or they just aren’t particularly engaging and dynamic speakers able to convey knowledge in a compelling way.

I would change the tenure process. I would include a real teaching evaluation, and not just rubber-stamp candidates based on their research and publications. I would incorporate salary incentives for excellent teaching (I realize measurement is difficult, although, really, can’t you tell within five minutes of sitting in a classroom whether this is a professor who is truly competent or not?). I would demand excellence. I don’t think excellence in the classroom is currently demanded. I wish that would change.

4. Of course, good teaching would be easier if the materials professors were working with were stronger. Casebooks are awfully boring.

I have no problem with the case method as a foundation, although I haven’t really thought through the alternatives. I have no problem with the Socratic method. I think the Socratic method done well is really quite excellent. The Socratic method done badly is dreadful. But so is a terrible lecture.

The problem, I think, is that we don’t see enough materials in law school about how the law relates to the broader society, and to people’s lives. Some of the most interesting readings I’ve been assigned have been newspaper and magazine articles, television news program transcripts, and books written for ‘normal’ people. I think the cases we read can be supplemented with outside materials. The law is important in everyone’s life. If we practice law, we will be dealing with how the law plays a role in people’s everyday lives. Law school, especially in the reading materials we get assigned, pays relatively little attention to this. I think that’s a mistake.

5. Finally, I don’t think legal education does a very good job of fitting all of the pieces together.

I have a fine understanding of the isolated areas of law I’ve taken in classes in – I know some contract law, some constitutional law, etc. I have no idea how they all come together in one big legal system. I have no idea if there’s any relationship between our torts regime and our criminal law regime; between our tax law and our constitutional law. Maybe these links don’t exist. Or maybe if I sat down and thought about it for a while, I could come up with something. But I don’t know where I would even look to find a discussion of these macro-issues, what class I would take, or whether they’re even important. We have a legal system, but what we learn are fragments of it, and I don’t know that we ever see how it all fits together to create a rule of law. This seems like a gap in the education. I might be wrong.

I haven’t touched on other areas where legal education could improve –its use of technology, lack of focus (at least in the U.S.) on issues of international and transnational law, the unchanged-for-generations 1L curriculum, the high cost of education leading people to take the law firm route in greater numbers than might otherwise, the student-run legal journals, and more issues I’m sure I’m not even thinking of. But, for me, I think my five are the areas where I’d most like to see change, and feel like change would have the most impact on legal education overall.

11/25/04 11/25/04

Five by Five - Buffalo Wings and Vodka

Our second contributor in the law student edition of this Five by Five is another anonymous blogger. This time, the author of Buffalo Wings and Vodka gives us the Five Things he would change about Legal Education:

1. Make Legal Research & Writing a Real Class: I know this may be better at some schools, but a lot of places only give LR&W a pass/fail status, or, like UT, make it a one-credit-hour affair. I understand that this is in an effort to take some of the pressure off of us, but it doesn't work because:

A. We do realize, on some level, that it's the only useful thing we'll get out of law school.

B. If it is for credit, no matter how small or insignificant, we're going to stress out about it.

C. If we're going to stress out about it anyway, then we should be rewarded in the only currency that law students (at least of the first-year variety) understand: Grade Points.

So make it a full class. I don't care if you staff it with lecturers, or third-year students, or exceptionally bright kindergartners. Just stop putting it into our heads that it is somehow less important, and then sticking us with a pair of B-minuses that haunts us for the rest of our legal career, causing us to question our self-worth and to seriously consider dropping out and working at Applebee's.

2. Condense it to Two Years: Don't get me wrong: I love law school. But while I'm going to enjoy my third year full of interdisciplinary classes and whiskey, I would probably be better off out in the world, making money and impressing women. The only real reason for law school to last as long as it does is that universities need to pick up extra cash wherever they can, and I understand that. But why not milk the undergraduates instead? I'm just a future commercial litigator, trying to scrape by on $60,000 in living expenses a year so that I can go out and do God's work. So let me do it already.

3. A Pass/Fail First Semester: Since nobody is going to accept the Two-Year Law School idea, we might as well make the three years a little more workable. Though I'm not
going to say that first-semester grades are no indicator of intelligence, I will suggest that they are an even stronger indicator of who has figured out how to take a law school exam. And it's a shame that not everybody gets a chance to do this before stuff really starts to count. The fact that I'm awesome at bolding subheads and underlining key concepts should not be able to make up for the fact that I know less about the law than the dude next to me (or, for that matter than my cat). So why not give everyone a chance to get the lay of the land, so that you can make evaluations based on something that matters?

Now, I appreciate the need of law firms to have an early sorting mechanism, but this really wouldn't hurt them much. We could move interview season to the beginning of the second semester of 2L year instead of the first semester, and everyone could still make their decisions in plenty of time for the summer. "But what about 1L employment?" you say. Well, I decided not to work as a 1L, and it didn't hurt me. So I say that all law students across the country start using the 1L summer to get a tan, write that novel they've been
putting off, and cherish the last few months of freedom they'll ever have.

4. Get Rid of Open-Book Exams: In law school as we know it today, everyone has a friend that it's in an older class, and every friend knows someone who took every class, and at least one of those people is going to have an outline that is of publishable quality. So we all walk into exams with these massive binders that are tabbed and indexed and have charts and graphs and pop-up pages and advertising in them, and it's just ridiculous.

Go back to closed-book exams. Go back to a system where I'm only responsible for as much as I can cram into my head. As things stand now, I'm carrying so much into an exam with me that I can barely get through the door, let alone get it all on paper.

5. Eliminate Wireless Access in Classrooms: The Internet, in general? Good. The Internet in law school classrooms? Bad. On any given class day, you'll find someone playing solitaire, someone watching ESPN highlights, someone IMing people across the room, and someone reading stupid law student weblogs. Which is why I am absolutely not allowed to bring my laptop to class. I just can't hack it.

But it's not enough that I alone practice laptop abstinence. Because, since everyone else has one, I end up spending the class period watching someone else suck at poker, or buy crap they don't need, or read "Sugar, Mr. Poon?". And that's just not good for anyone.

11/25/04 11/25/04

Five by Five - Sugar, Mr. Poon?

Our first panelist in the law student edition of this Five by Five is not a law student at all, but was when he started his blog, Sugar, Mr. Poon?, so I asked him anyway. Though I know his secret identity, I am sworn to secrecy (go to the FAQ's 1 and 2 to see if you can figure it out yourself). So, here you go Mr. Poon.

Five Things I'd Change About Legal Education:

Note: I just noticed that my distinguished co-panelists are still law students. I'm a recent graduate now working at a big firm in NYC.

1.  Teach Us to be Lawyers Better: My first-year Legal Writing professor told us that his pass/fail writing class would be the most important in our 3 years of law school. I don't think that's quite right -- but I do think it's right with respect to many students who don't take advantage of clinical opportunities in law school. Evidence and Corporations and Tax and "Law and Jackson Pollock's Motorhome"-esque classes provide a good basis of information, but when you're practicing you're gonna need to look up that issue of Delaware law to avoid malpractice, whether you got an A+ on your Corps exam or not.

I was fortunate to have been involved in several practice-oriented classes, and I've found that it was THOSE experiences that prepared me to be a lawyer -- or at least a first-year associate at a big firm. (Although friends who are working in much different jobs -- either at law firms or in other sectors or what not -- agree with me on this point.)

Or, put another way, being able to debate the Supreme Court's revitalization of the sovereign immunity doctrine is great, but it doesn't give you a clue about what makes a good Statement of the Case.

(And don't get me wrong -- your ConLaw class has a good deal of value. I really enjoyed law school on an intellectual level because of classes like ConLaw and Torts and so on. But in terms of the "traditional" practice of law -- be it at a big firm or as a solo practitioner -- knowing how to draft a motion or defend a deposition are more important skills than knowing Potter Stewart's shoe size.)

On that note...

2.  Make the Third Year More Clinical: Maybe this is Part 1(b). I would be surprised if one of my distinguished co-panelist-type-people doesn't offer the suggestion that law school be shortened to 2 years. I hear this a lot. I don't think it's the most terrible idea, especially given the cost of law school these days.

I have a better idea: integrate clinical/practical classes into the third-year curriculum and make one or two mandatory each semester. My school had a mandatory public service requirement, which was a very good thing. But it didn't mean you'd get any practical experience. Integrating those experiences into the third year would keep that year alive and fill the practical experience void at the same time. (See also #5 for a discussion of judicial internships/clerkships in the third year.)

And one of those classes should be on Lawyerly Advice. Law students need to hear things like "Always hand in work that is good enough to be filed" and "Stay away from that Whitewater thing".

(A more stark version of this model is used in a majority of American medical schools, where the education is (roughly speaking) 2 years of book learnin' and 2 years of <strike>touching peoples' privates</strike> <strike>poking and prodding strangers</strike> <strike>taking someone's temperature... and not orally</strike> hands-on learnin'. Works well.)

3.  More cookies: Seriously. Sometimes my professors gave out cookies or other sweets. And sure, I got a little jumpy from the sugar high and probably blogged more than usual during that class, but I recall paying attention more too. And besides, you know, like, cookies are yummy, and stuff.

4.  Depress the Cost of Bar/Bi: Look. You can go to law school and not practice law. Fine by me. May be joining you sooner or later. You da mon.

Statistically speaking, however, most of us law grads at least take the Bar Exam and try out this lawyerin' thing in one capacity or another. And the Bar Exam in each state in the Union now uses the Multistate Bar Examination -- a horrid little 200-question test that I hate with a passion because it is evil and should be burned. (No, I'm not bitter - I passed the NY Bar. . . but I'm angry at that stupid f-ing test anyway. I hate you so much, MBE.)

The MBE deals in majority and minority rules and is generally designed to confuse you with poorly-worded sentences and trick you into not using your common sense. I think law schools should have a class on this stuff, just to get you ready. Could be an elective. Just a thought.

5.  Push More Students Toward Judicial Clerkships and Internships: I think that a lot of law schools don't push clerkships and internships enough. Yes, the clerkship market, especially in the federal courts, is very competitive. But internships are generally much easy to come by, and can be done while in school.

In fact, as part of "Mr. Poon's Happy Fun Time Third-Year Clinical Bonanza" detailed in #2 above, I would reach out to judges in the area to set up semester-ly internships that get students into chambers and into court. Being in a courtroom for the trial process is great experience, both in law and in life.* Law schools should use their position in the community and prestige to create those opportunities for their students which will make them better prepared to be lawyers and/or good at Grand Theft Auto.

*May or may not be true -- I got it from a fortune cookie.

PS - After re-reading the above, it may seem to some like I'm complaining that law schools aren't enough like trade schools and/or lawyer factories. That's not what I'm saying. I'm saying that for all the wonderful things I learned in law school - and I learned a lot - the things I learned in my clinics and internships were the most valuable to what I am doing now (and what most of my friends are doing, including those not at a job similar to mine). And they need to be a greater component of American legal education -- or at least mandatory, for Newdow's sake.

PPS - It also may seem like I'm complaining that law schools aren't giving out enough cookies. I am. They aren't. No, seriously.

11/18/04 11/18/04

Five by Five - Law Student Edition

By Monday, I'll have up the next Five by Five. This time, I've asked five law student bloggers to answer this question: What five things would you change about legal education? On the roster:

Ambivalent Imbroglio

Three Years of Hell to Become the Devil

Sugar, Mr. Poon?

Jeremy's Weblog

Buffalo Wings and Vodka

I've also asked my pretrial students at Washington University Law School for their responses. If you've got some good ideas, let me know.

11/3/04 11/3/04

Five by Five - Stephen M. Nipper

Our final contributor is Stephen M. Nipper, a registered patent attorney working in Boise, Idaho with the firm Dykas, Shaver & Nipper, LLP and author of the Invent Blog. His contributions:

What five things would you change about IP law and/or practice?

[What started as "five things" has quickly digressed into a rant to my fellow practitioners about how they need to change THEIR IP practice. Hope you all don't mind.]

1. Embrace the future. Lets face it, the Internet is changing the practice of intellectual property law. Many of the businesses we used to rely on for patent copies, copies of file wrappers, etc., have had to evolve or die as more and more of the USPTO's data and knowledge is made available on the Internet for free. Do you really think that is the end of it? Do you think that it is not going to affect IP attorneys too? I'm afraid that you've got a big surprise coming. It is time to start thinking outside the box about how we provide our services, how we bill for them and how clients find us.

2. Due to the Internet, people now have unfettered access a litany of information about the practice of intellectual property law. Because of that, they are expecting more and more from us. Gone are the days when "the only thing my client needs to know about the law is my phone number." Instead, attorneys need to realize that that your new client likely knows more about IP law than the average general practitioner does. You should treat them with respect. Work with them on projects instead of for them, make yourself more available to them, visit their office/factory/shop. Quit biting the hand that feeds you.

3. You are your brother's keeper. One of the things IP practitioners tend to do is ignore our responsibility to spend time educating non-IP attorneys as to the basics of IP law. Lets face it, our colleagues (understandably) aren't typically very good at issue spotting when it comes to IP issues. The result is countless pain and suffering (and much gnashing of teeth). Solution? Go teach a CLE to general practitioners, blog, write articles for your local bar journal, start writing a newsletter, etc. You will be rewarded.

4. The Princess Principle. At my house we joke about "The Princess," often referring to my daughter being demanding (or when said jokingly to my wife, often followed by me sleeping on the couch...but I digress). Too often I see IP attorneys (especially the patent attorneys) strutting around like they are somehow better than other attorneys.like they are the Princess and everyone should worship them. I can especially see the Princess Principle when I look at how non-IP attorneys treat my staff (usually with respect) vs. how IP attorneys treat my staff (rudely, impatiently, etc.). Just because our IP attorney ancestors narrowly defined who could practice IP law doesn't make any of us The Princess. Get over it, you were a geek who happened to go to law school and has benefited from the "System." Realistically, we're all more like court jesters than princesses.

5. Billing. What would a post on Matt's blog be without talking about billing? Intellectual property practitioners need to work harder at providing alternative billing methods to their clients and need to be more responsive to billing issues in general. Why? Because the Internet is dramatically changing both the quantity and quality of competitors who are now only a few clicks away from your clients. Clients are becoming less and less inclined to merely get annoyed when they have issues with one of your invoices or your prices, and more inclined to start looking for your replacement. One thing you should remember about that replacement.it is just as likely to be a firm in a distant, smaller metropolitan area as it is to be a firm down the street. The Internet has really opened up the practice of IP law, making firms in smaller towns (with less overhead) able to provide competitive services to clients all across the nation. If you don't take care of your clients.they (we) will.

Now that I have totally annoyed all of my competitors. I'm out.

11/3/04 11/3/04

Five by Five - Doug Sorocco

Up next is Douglas Sorocco, partner in the Oklahoma law firm of Dunlap, Codding & Rogers and author of the PHOSITA blog. Doug's Five Ways he'd change the practice of IP law:

1. Everyone needs to take a deep breath regarding software patents. The end of the world is not near, the seas are not going to be flooding our coastal cities and software patents are not stifling development of new and useful tools and processes. Software developers are simply going to have to become better business people and accept that nothing is free and patent clearance searches must be made an integral part of the development process.

2. Continuation application practice must be reformed to require the update of the "best mode" of practicing the invention every time a new continuation application is filed. A loophole (according to my opinion) in continuation practice is the fact that anyone can file as many continuing applications as they want and never have to update the "best
mode" in the application. If a continuation application is filed several years after the parent application, it is likely that the best mode of practicing the invention is woefully out of date. U.S. patent policy of limited monopoly rights for full disclosure would be better served by updating this crucial piece of information every time a new continuing application is filed.

3. Clients and businesses see the patent lawyer as integral to the business model and growth strategy. Any patent attorney that doesn't request a business plan or meeting with management to discuss the implications of intellectual property filings should be disbarred. Do not pass go. Instantly disbarred and perhaps made to wear a chicken suit as future employment.

4. All law and graduate students should be required to take a general intellectual property overview class as part of their first year curriculum. Our society and economy is quickly becoming knowledge based. Every attorney (and business person) should have at least a fundamental understanding of the legal protections underpinning such fundamental aspects of day to day business and technology life.

5. Significant and substantive reform of the U.S. patent office procedure for patentees, lawyers and patent office employees. The current system is broke and the pressures put on patent employees are absurd. As applications become more complex, Examiners are not being given the appropriate amount of time, training and resources to complete
their jobs efficiently and expertly. Fee diversions must be stopped and quality made the "gold standard" rather than production and counts

11/3/04 11/3/04

Five by Five - Martin Schwimmer

The next edition of this Five by Five comes from Martin Schwimmer, lawyer and author of The Trademark Blog and one of the founding members of The Blawg Channel. Martin's response:

What are some of the most important issues and developments in trademark law today?

In terms of jurisprudence, I think two of the most important areas are the development of the concept of initial interest confusion, and the development of contributory and vicarious infringement in the Internet context. With respect to initial interest confusion, a tremendous amount of what trademark owners hate about Internet activity consists of third parties using their marks to divert traffic to unauthorized sites. We saw this concept in cyber squatting litigation, and now see it in the use of keywords. Related to this is the development of the concepts of contributory and vicarious infringement. It's hard to get one's hands around fly-by-night operators, so trademark owners go after the Internet service provider or registry or search engine. I think these are the key areas in which we are going to see development in U.S. jurisprudence.

I also think that the development of the UDRP is an astounding success in that it represents a model of dispute resolution. There are times that a trademark owner has to walk away from the misuse of a mark in a domain because litigation will cost $50,000, but a UDRP can cost under $3000. The UDRP is not a perfect solution, but it has absolutely achieved what it set out to do. I still do a lot of them, probably one a week. I think the UDRP may pave the way to other forms of alternate dispute resolution for IP problems.

In addition, technological systems are developing to take some of the drudgery out of trademark practice. For example, xml, which stands for "eXtensible markup language" allows structured information, such as the information required in most trademark applications around the world, to pass from one system to another. So, for example, the information in a client's database in the United States could be coded using XML to label the relevant information, such as the mark, the description of goods, and
applicant's address, and transmitted into corresponding 'buckets' used by whatever software application is used by the foreign associate or foreign trademark office.

11/3/04 11/3/04

Five by Five - Dennis Crouch

Next up is Dennis Crouch, a patent attorney at McDonnell Boehnen Hulbert & Berghoff LLP in Chicago and author of Patently Obvious: Patent Law Blog. Dennis' Five Things:

This is going to sound corny, but the fact is that I absolutely love being a patent attorney. I enjoy talking with inventors. They are generally smart, quirky and forward thinking. I get to think about and work with new technology all day and am paid to write.

I am clearly an optimist and tend to see the good side of any situation. I actually found it quite difficult when Matt asked me to take part in this 5x5. What is the bad side of the field I enjoy so much?

Law Firm Life: Billing Requirements: Billing expectations at most large law firms are simply unreasonable. They disrupt family life and tend to destroy any solid mentoring program. Today, however, I’m upset with how the long hours spent billing really cramp the ability of associates to begin to build a practice of their own. The hour requirements were raised after the salary bump several years ago. Now, there are rumors that another salary jump is in store for BigLaw associates. In my opinion, rather than increasing associate salaries, firms should compete based on hours.

Law School: Becoming An Attorney: If you are a scientist or engineer who is thinking of becoming a patent attorney, my advice to you is to broaden your outlook. When you go to law school, don’t just worry about becoming a patent jockey – rather you are becoming a lawyer. Learn to think like a lawyer and talk like a lawyer. Take classes that have nothing to do with patents and make as many friends as you can. (Your classmates will likely refer some of your first clients). Law school provides a great transition point in life, and there is no requirement that pushes an attorney with an engineering degree into patent law. Take time to enjoy the freedom.

Technology: Electronic Patent Filing System: The Patent & Trademark Office (PTO) has taken great measures over the past few years to transform the Patent Office into an electronic office. However, the electronic filing system for patents still stinks. A user friendly solution is needed as soon as possible.

Patent Litigation: The Expense: Patent litigation is simply too expensive. The average case, including those that settle, runs into hundreds of thousands of dollars in legal fees for each side. Cases that do not settle often cost well over a million dollars to litigate. This is a major problem. There are some simple tips that a patentee and patent prosecutor can follow to reduce future litigation costs. Examples are writing clear and precise claims, summarizing the invention in a way that is accessible to a jury, and conducting regular market surveys to ensure that your patent explicitly covers any technology that you feel is infringing.

Patent Law: Uncertainty of District Court Opinions: The claims of a patent define its scope. Almost every patent infringement lawsuit involves arguments over whether claims terms should be given a broad or narrow interpretation. The problem is that claim construction, like statutory construction, is reviewed de novo by appellate courts. And, the appellate courts have been reversing cases with fury. Almost 50% of claim construction cases are overturned on appeal. Under the current scenario, anyone preparing for patent litigation should prepare for at least one appeal and remand.

11/2/04 11/2/04

Five by Five - Mark Partridge

It is finally here. The Five by Five - Intellectual Property Edition. Up first is Mark V. B. Partridge, partner at Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, and author of the book Guiding Rights. Mark also writes the Guiding Rights Blog.

THE FIVE THINGS I'D CHANGE ABOUT IP LAW

1. Rediscover the public mind.

One of the first changes I'd make in trademark law is to rediscover the public mind as an essential element in the creation of rights. In my book Guiding Rights: Trademarks, Copyright and the Internet, I go into this issue in the chapter entitled "Trade Dress Protection and the Problem of Distinctiveness." The recent history of trademark law reflects a regrettable trend toward a point where there is little or no attention paid to the connection between the mark at issue and the public's reaction to that mark. This has proceed to the point where an appellate decision has stated that the issue of trademark rights is the relationship between the mark and the product, "not whether . . . consumers associate the design with its source," and "not the relationship between the [mark] and the consumer. See Stuart Hall Co. v. Ampad Corp., 51 F.3d 780 (8th Cir. 1995). As discussed in Guiding Rights, the resulting analysis then bears little relationship to whether the public will react to the mark as an indication of source. But that, of course, is what trademark law is all about.

A proper understand of trademark rights involves recognition that rights only exist when there is a connection between the mark with goods or services from a particular source in the public mind. It is not enough to simply select a compelling mark and affix it to a product. This was long ago stated by Justice Frankfurter in Mishawaka Rubber & Woolen Mfg. Co. v. S.S. Kresge Co., 316 U.S. 203 (1942):

"The protection of trade-marks is the law's recognition of the psychological function of symbols. . . . Whatever the means employed, the aim is the same - to convey through the mark, in the minds of potential customers, the desireablity of the commodity upon which it appears. Once this is attained, the trademark owner has something of value."

Thus, a mark has no value as a trademark unless and until there is recognition in the public mind.

More recently, the Seventh Circuit in Zazu Designs v. L'Oreal, S.A., 979 F.2d 499 (7th Cir. 1992), similarly recognized that an ongoing plan to use a mark or even sales to a small inner circle created no rights, stating: "Only active use allows consumers to associate a mark with particular goods and notifies other firms that the mark is so associated."

In other words, there is no protectable mark unless there is a relationship between the mark and goods from a particular source in the public mind. This necessary consideration is seems often overlooked or misunderstood by both trademark owners and the courts. My first change would be to rediscover the importance of the public mind in all dialog about trademark rights.

2. Eliminate rights in gross mentality

My second change, admittedly related to the first, would be to eliminate the "rights in gross" mentality. By this, I mean the notion that a trademark creates an absolute and exclusive right. One sees this tendency on both sides of the rights issue. A trademark owner may have the view that no one else may use its mark for any purpose. The junior user may believe there is no infringement if the mark it adopts is not identical to another's trademark.

Both views are mistaken, of course. The rationale for protecting trademarks is preventing deception of the public, not to protect a right in gross. Again the effect of the marks in question on the public mind is critical. Some uses of another's mark are permitted because they do not deceive the public. The use of nonidentical marks on related goods may still be an infringement because they deceive the public.

3. Require ADR before litigation

Litigation is extremely expensive, almost shockingly so to most clients, and prohibitively so to many. The 2003 Report of the Economic Survey by the American Intellectual Property Law Association found that estimated total cost of a trademark infringement suit where less that $1 million was at risk ranged from $200,000 to $400,000. The litigation cost in larger matters reached up to $4 million for a single case. The result is that even successful litigation may end up substituting a financial problem for an infringement problem. We also know that most civil cases, over 90% in federal statistics, never go to trial.

My change would be to require all trademark litigants to try forms of alternative dispute resolution before proceeding with the expense of discovery and trial. As both a mediator and as an advocate in mediations, I know that facilitated negotiations can lead to resolutions at substantially reduced cost. Unfortunately, ADR is underused for many reasons. Clients don't want to be the first to blink. Litigators don't want to appear weak, loss control, or disclose information. Whatever the reason, the hesitancy to use ADR (either mediation or early arbitration) could be overcome by making it mandatory. Some jurisdictions already do. More should. An early effort to settle, facilitated by a competent neutral could, I believe, save the courts and clients a great deal of money.

4. Improve ICANN UDRP submissions

As an ICANN UDRP Panelist with over 100 reported decisions for WIPO and NAF, I have read many submissions over the past five years, some very good, many bad. The fifth thing I'd change would be to improve the quality of the submissions. I recently spoke on UDRP advocacy at seminar hosted by DePaul Law School and the Intellectual Property Law Association of Chicago, and offered these six tips:

1. The Complaint (or Answer) should be a brief. This is your only chance to argue your position. Treat it like a memorandum in support of a motion for preliminary injunction or summary judgment by presenting your case as an advocate. Mere notice pleading allowed in our federal system is not effective for the circumstances.
2. The Pleading should be brief. Although the providers' limitations on length are largely ignored and exceeded, as a Panelist I urge you to remember that effective legal writing is brief and to the point.
3. The Pleadings should follow the Policy. Follow the elements of the Policy in stating your position. Remember that the Panel must address each of these issues. Make it easy for the Panel to decide in your favor by organizing your argument around each element of the claim or defense.
4. Support your position with proof. You need more than bald allegations to prove rights and bad faith, and you will find an increasing number of cases in which complainants are called upon to make additional submissions or lose their claim due to lack of proof. Strong submissions present evidence by way of exhibits and short affidavits. But don't merely shovel in piles of documents. Remember point 2.
5. Make good use of supporting authority. Give cases to support your argument and show why the cases are relevant. Avoid merely citing cases. There have been over 7800 reported UDRP decisions. Don't assume the Panel knows the result and reasoning of each case you cite. Help the Panel by providing at least a parenthetical on the cases you cite.
6. Recognize the limits of the Policy. The Policy is designed to address cases of cybersquatting involving protectable trademarks. It is not intended for contract disputes, garden variety infringement cases, defamation claims, or personal names that are not entitled to commercial protection. Adverse decisions are often the result of claims that obviously stretch beyond the scope of the Policy. Matters outside the scope of the Policy are better directed to appropriate civil courts.

5. Create regionalized registrations

My fifth change would be to create regionalized trademark registration systems. One of the fundamental principles of trademark law is territoriality. Trademark rights are deemed to be specific to a single country. Outside the United States and a handful of common law countries, civil law prevails and rights in trademarks arise from national registration, rather than use. In our global Internet world, however, the continued reliance on national jurisdictions doesn't fit the market reality. Further, the cost of worldwide protection is incredibly expensive. I recently advised a client that she could expect an average cost of about $2000 per registration. She wanted to protect twenty marks used in a worldwide Internet business. With about 250 jurisdictions accepting trademark registrations, the cost obviously is huge.

There has been some movement toward regional registries. Of note are the Benelux registration for Belgium, Luxembourg and the Netherlands, and the CTM for the European Community. More can and should be created. Doing so could reduce the cost of registration and afford protection for territories that better fit regional markets that span the borders of of several countries.

10/20/04 10/20/04

Where have you gone Five by Five?

If you are wondering when I'll have another of those great 5x5's, wonder no more. Beginning Monday, the series restarts with five intellectual property bloggers answering the question: What five ways would you change IP law?

For you non-IP people (like me), the topic seems a bit dry, but I've read most of the responses already and they are great! See you then!

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