Intellectual Property

Watching other lawyers in action is fun. Much more fun than watching myself in action, as I have had the opportunity to do on a number of occasions. Such as during my trial training days, when the instructors decided that making us watch clips of ourselves try and conduct a direct examination was valuable. At least they got a kick out of it. But as edifying as watching video of yourself can be, you can learn a whole lot more by watching other lawyers. This lesson was ingrained in me as far back as my 1L “summer clerkship” in New Jersey state court. I remember the clerks gathering around on motion day to check out arguments in front of other judges, mostly to watch the lawyers in action. Ditto for trials.

Of course, once you enter practice — especially in Biglaw, where opportunities to even get out of the office are hard-earned — it becomes even more important to turn opportunities to watch other advocates into learning experiences. Because of the nature of the cases we were handling, many of which involved Biglaw firms of some repute on both sides, there were plenty of opportunities to watch great lawyers in action. Just as frequently, I was able to watch inexperienced lawyers from great firms struggle to get through routine litigation events. I am sure that many other lawyers were forced to endure my inexperienced attempts to handle those events along the way as well. Experienced lawyers just love sitting through a deposition where the questioner spends an hour getting through the educational background of the witness…

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(c) Image by Juri H. Chinchilla.

On March 5, 1963, Arthur Melin, co-founder of the toy company WHAM-O, Inc., received a patent on the hula hoop. This week, On Remand looks back at the hula hoop and one of the era’s other crazes: Alvin and the Chipmunks.

By the time the hula hoop received its patent in 1963, it had already enjoyed great success. The hula hoop fad started in the summer of 1958, and by fall, WHAM-O had at least twenty-five million customers gyrating and swiveling their hips to keep the hoop in motion. By Christmas, the hula hoop had become the “Tickle-Me-Elmo” of 1958. Everyone wanted one, including a chipmunk named Alvin.

Alvin, and his chipmunk pals Simon and Theodore, also debuted in 1958. Ross Bagdasarian, Sr., a composer, singer, and actor now better known by his stage name David Seville, created the singing squirrels by manipulating the playback speed of his voice on a tape recorder. His gamble – spending $190 of his last $200 on the fancy machine – paid off. By Christmas, one of the songs from the first Chipmunk album, “The Chipmunk Song (Christmas Don’t Be Late),” had reached number one on the charts. In it, Alvin pleads for the year’s hot toy: “me, I want a hula hoop!”

By the mid-60s, Americans had lost their enthusiasm for the hula hoop and Bagdasarian had grown bored with the Chipmunks. When Bagdasarian died unexpectedly in 1972, his son Ross Jr., a chip off the old block, longed to revive his father’s creation. First though, because his father had insisted, Ross Jr. went to law school. . .

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* It’s apparently time to pay your fair share. Obama wants to close the pesky tax loophole that’s allowed rich professionals, like lawyers, to get away with being rich professionals for so long. [Legal Times]

* On this episode of As the Weil Turns, we take a look at the firm’s tumbling gross revenue, profits per partner, revenue per lawyer, and headcount. Don’t worry, Weil’s just “repositioning.” [Am Law Daily]

* The American Bar Association released the dirt on 1L enrollment declines at law schools nationwide, and some schools got totally massacred. Pray yours wasn’t one of them. [National Law Journal]

* “[T]hey’d probably make the school year longer and bring the cost up for each year.” We sure hope these pre-law students aren’t right about the dubious cost factor behind the two-year law degree. [The Hoya]

* Who owns the copyright to the Oscar selfie? Does it belong to Ellen DeGeneres, or Bradley Cooper? If you want to get technical about it (and you do, you’re a lawyer), check out this legal round-up. [The Wire]

You learn a lot of lessons practicing in Biglaw. A big one is that you can never be prepared enough. There is always another opinion of your presiding judge to read, or a brief drafted by your opponent in an earlier case to review. Anyone who makes it more than a few years in Biglaw learns that lesson. But as much as preparation is valued, and pursued with fervor as an ideal onto itself, there is absolutely no way for even the most idealistic Biglaw recruit to fully appreciate what they are getting themselves into.

As many know, law school itself has little to teach about the realities of Biglaw, other than to idealize it as a fantasy land of big paychecks and “interesting work.” And everyone’s Biglaw experience is so unique that anecdotal tidbits are of limited utility. Does the professor, who so proudly includes on his resume a two year stint as a M&A associate at a white-shoe firm two decades ago, have much actionable advice to give a graduating 3L headed for a first-year post at even that same firm? Not really, except to perhaps suggest that the best type of relationship with that firm is one where it is your former employer….

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One of the questions I have been asked since leaving Biglaw is how I decided to join forces with my current partners. It is a good question, because over the years I have had the opportunity to work with many lawyers, both at my firm and at others. I have technically even had hundreds of “partners” between my two prior Biglaw firms. But other than my current partners, I can think of only a handful whom I would have considered opening a firm with.

My professional ambition was never to open a boutique. I very much enjoyed my time in Biglaw, and always thought that I would stay in Biglaw for the remainder of my career. Did that mean that I expected to remain at the same firm for my entire career? Of course not, no matter how appealing that idea sounded. The fraying of the Biglaw social contract as a result of the 2008 recession sealed that deal. But it was a big leap from knowing that my career could involve some moves within Biglaw to leaving Biglaw altogether.

Finding the right compatriots was a critical element of that decision. How did it come about?

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In last week’s column, I discussed the importance of external communication during the mediation process in securing a favorable result for a client. Many of the people who wrote to me as a result of last week’s column agreed with my general premise that mediation is an important skill for the contemporary litigator, and that mediation’s importance will only continue to grow.

A primary driver of that growth will be the continued desire of clients to reduce litigation costs. More and more, clients are recognizing the value of mediation as a means of resolving disputes early and with certainty. Accordingly, those same clients are looking to their outside counsel to guide them through the mediation process, and it is safe to assume that how outside counsel fares at that task could be a crucial factor in terms of a client’s willingness to send that lawyer more business….

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Mediation. For some lawyers, it is a great way to spend a day; for others, it is an interminable bore, and ineffective to boot. It is easy to imagine that lawyers who have had successful mediation experiences are more likely to fall into the former category than the latter. What is more certain, however, is that mediation skills are increasingly important for a litigator to have, for a number of reasons. Unfortunately, most lawyers, especially Biglaw attorneys, are left to fend for themselves when it comes to developing those skills. That is a shame, as the importance of being able to mediate successfully has only grown in today’s business climate. More generally, negotiation skills remain under-taught in law schools and by law firms, and as a result are underdeveloped in many lawyers.

Any chance a lawyer has to develop their mediation skills should be seized. As an intellectual property litigator, all of my cases originate in federal district courts, and throughout the country, almost every case schedule includes mediation (or some other form of alternative dispute resolution) as a distinct event. Where on the schedule the mediation occurs, and whether it is held before a magistrate judge or local certified mediator, is usually up for negotiation between the parties. What is important is that mandated mediation is on the schedule. As a result, just as litigators need to know how to handle a discovery motion in a particular court, so should they be prepared to make the most out of whatever mediation process their case calls for. Interestingly, mediation has become an important part of appeals as well, including at the U.S. Court of Appeals for the Federal Circuit, a familiar forum for patent litigators like myself….

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(c) Image by Juri H. Chinchilla.

Ed. note: This is the first installment of “On Remand,” a legal-history column by new writer Samantha Beckett. You can read her full bio at the end of this post.

The statute of limitations never expires on an interesting legal story, so each week “On Remand” will report on legal aspects of a story from the past using a “this day in history” theme. First up, Beatlemania!

Five years before John, Paul, George, and Ringo crossed Abbey Road, they crossed the pond and invaded U.S. living rooms. Fifty years ago last night, the Beatles appeared on The Ed Sullivan Show for the first time. The floppy-haired Fab Four were warmly welcomed by shrieking fans and America’s version of royalty – the King himself, Elvis Presley. As Ed Sullivan explained before the Beatles took the stage: “You know something very nice happened and the Beatles got a great kick out of it. We just received a wire – they did – from Elvis Presley . . . wishing them a tremendous success in our country.”

It’s safe to say that Elvis’ wish came true. The Beatles won an Oscar, racked up enough Grammys to collapse a shelf, and were inducted into the Rock and Roll Hall of Fame.

By 1978, both the Beatles and the British Invasion were ancient history. Beatles fans consoled themselves with the music of Wings and the solo careers of John, Ringo, and George. And one Beatles fan in particular, Steve Jobs, was busy with his two-year-old computer company, Apple Computer. But that year, Apple Computer would experience a British invasion of its own when the Beatles’ company, Apple Corps (thank Paul McCartney for that pun), sued Apple Computer in Britain’s High Court. The dispute concerned the companies’ similar apple logos: a Granny Smith for Apple Corps, and an icon of an apple with a byte bite removed for Apple Computer….

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O Canada!

* Secrets secrets are no fun, secrets secrets hurt someone: Chief Justice Roberts named two judges to two secret courts. Congrats to Judges Boasberg and Tallman. [Legal Times]

* Bankruptcy just got a lot more fabulous. AG Eric Holder announced that the government would extend recognition of same-sex couples in federal legal matters. [New York Times]

* With reports of firms’ financials beginning to trickle out, partners are getting anxious. No one wants to be the next Dewey — or the next Gregory Owens. [Am Law Daily]

* This is the second year in a row that Greenberg Traurig has posted financial declines. Perhaps the firm started its lower pay, non-partner track residency program for a reason. Something to think about. [Daily Business Review]

* “It’s our duty as partners to help.” Law students articling at the recently dissolved Heenan Blaikie are learning a lesson in Canadian collegiality. The firm is trying to help them get new jobs. [Montreal Gazette]

* Speaking of Heenan Blaikie, we’re hearing chatter that the firm’s talks with DLA Piper may be in trouble. HB says the talks they’re off, but DLA says they’re ongoing. Hmm, that sounds dramatic. [WSJ Law Blog]

* “It’s a very L.A. thing. We’ll see how long it lasts.” If you had to choose, you’d probably go to Dumb Starbucks over Starbucks. Order a Dumb Frappuccino before they get a C&D letter. [Los Angeles Times]

Some large law firms, when announcing year-end associate bonuses, also announce base salaries for the new year. In Biglaw, the salary scale hasn’t budged since January 2007, when Simpson Thacher announced the $160K scale (providing for base salaries ranging from $160,000 for first-year associates to $280,000 for eighth-year associates).

You could view this as a compensation cut, since we have had some inflation (even if not high inflation) since 2007. According to the inflation calculator of the Bureau of Labor Statistics, $160,000 in 2013, the latest year available, had the same buying power as $142,407 in 2007. Of course, law school tuition has climbed quite a bit since 2007 — so even for the lucky souls who land Biglaw jobs, the value proposition of a law degree isn’t as appealing today as it was back in 2007. You’re paying more for a degree that gets you less.

What’s the solution? Work for a firm that will pay you more than $160,000 as a starting salary, of course! Let’s say hello to the newest member of the $160K-Plus Club….

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