Monthly Archives: November 2004

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 5×5 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.

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.

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.

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.

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.

Do you treat new customers better than existing ones?

I’ve been using Timematters (version 5.0) since it came out, and was a faithful user of 4.0 before then.  Now I see that version 6.0 is out, with a bunch more bells and whistles.  Apart from a very complicated interface, I’m generally happy with 5.0, and if the Outlook integration worked as advertised (or at all on my machines), I’d stay with that product.  However, if the new version dramatically improved my user experience, I’d spring for the $500 or so the upgrade would cost our office.

Today I called LexisNexis Timematters sales and asked if I could download a trial version of the new software or get a demo disk.  The salesperson told me that was not an option for me, because I was already a customer.  Instead, I had to buy the upgrade and then take advantage of the money-back guarantee if I was unsatisfied.  However, if I didn’t already own the product, the salesperson assured me, they would send out a working demo disk and give me thirty days to “test drive” the software.

This isn’t a rant against Timematters, per se.  Instead, it should be a lesson to all of us whose business depends on returning clients or customers.  Before you extend that “special offer” and limit it to new customers only, think about how your loyal customers would feel if they learned it wasn’t available to them as well.  Why not give those existing customers the special perks and see how much more your business grows.

To work at home — or not?

From Arnie Herz’s Legal Sanity comes this link to an ABA Journal article titled, “Home Alone. Using Available Resources, Working at Home Can Pay Off,” that suggests that working at home is a viable alternative for some small firm practitioners.  However, this BBC News Article seems to point to an opposite conclusion.  According to a study quoted in the article:

Less than 50% of people who work from home are satisfied with their home office space, with a quarter of them forced to work in the kitchen, 37% in the spare room and 10% “hotdesking” it to anywhere they can find.  [In fact over] three-quarters of home workers have found themselves working in a cramped and cluttered space, and over 50% of those surveyed said they did not have enough room to work effectively.

What does this all mean?  Make sure the productivity gains you experience by losing your commute or gaining convenience are not offset by a bad work environment.  Just because something feels like it is more productive, does not make it so.

More on Pricing Legal Services

I recently signed up for the free newsletter.  According to the site:

MarketingExperiments.Com is a member of the MEC Labs Group and a division of Digital Trust Inc. MEC is an online laboratory with a simple (but not easy) five-word mission statement: To discover what really works. The Lab tests every conceivable marketing method on the Internet.Our experiments range from three to eighteen months, and they involve budgets ranging from $4500 to $50,000+. We are often surprised, and sometimes embarrassed to discover just how much we DON’T know about marketing.

In a recent experiment, they worked with a leading psychiatrist and author to determine how to maximize online sales of a new book.  They tested three price points ($7.95, $14.00, and $24.95) and measured the effectiveness and total revenue produced by each.  Their results are a bit surprising.  The lowest price point generated the second-lowest number of orders and the lowest amount of total revenue.  The middle price point generated the highest number of orders.  The interesting nugget (for me at least) was that when the book was priced at $24.95, the smallest number or orders still generated the highest amount of revenue.  In fact, both the $14.00 and $24.95 prices generated more than twice the revenue of the lowest price.

While the lesson for lawyers might not be to change your billable rate to $1,000.00 per hour (and only work one hour per day), it is interesting to note that lower prices (rates) don’t necessarily translate into more sales (clients).   We’ve been playing with some pricing strategies here at my firm for our value-based billing mode and I’ll share some year-end results with you soon.  Until then, the newsletter is a worthy read.  I highly recommend checking it out yourself.

Baseball’s Lessons for Lawyers

Great post by Jeff Angus over at Management by Baseball about how the Minnesota Twins have incorporated a new innovative way to price their season tickets by using flexible vouchers.  In short, Twins fans can buy vouchers for game tickets (each priced $2.00 less than normal ticket price).  If a fan buys the minimum of 40 vouchers, they can go alone to 40 games, take a friend to 20, three others to 10, etc.  Each time the vouchers can be used for different seats, on an “as available” basis. 

When I first read about the Twins’ plan, I started to think about how lawyers could use a similar voucher plan in their offices.  We are talking to a few of our clients about offering estate-planning vouchers they can pass on as gifts to adult children, friends, parents, employees, etc.  Each voucher is good for two wills, and powers of attorney for health care and property.  We’ll offer the vouchers at a slightly lower cost than our normal flat rate for the services.  In the event a person needs more significant estate planning, we’ll apply the value of the voucher towards our normal fee for that service.  If this year’s trial run goes well, we will offer all of our clients the vouchers beginning next year.

At the end of his post, Jeff sounds like he is speaking directly to lawyers, when he shares some of his own experience with “out of the box” thinking:

It’s amazing sometimes how rigidly a seller will adhere to a delivery scheme through inertia, even when the model has always been broken.

I worked for a swell software company where one of the highest-margin products it had was a product that could not be used by a single user. The fewest people this networked program could use was two. The buying of a single unit would only be for an upgrade (where an existing set of users needed to add another user). Dozens of times every week, technical support received phone calls from people who had just bought one unit and couldn’t do anything with it (imagine instant messaging where you’re the only person who has it).

Resistance to change was overwhelming. They had always sold 1-packs. It didn’t matter that a 2-pack required only another registration key (a slip of paper with another number on it), and would therefore cost about 15 cents more to make while nearly doubling the asking price, never mind it would cut down on angry or confused (or both) customers and those customers’ wrath directed at clueless resellers and our own technical support. And this was software, not something hard to package like a power-drill or a workbench or a piece of furniture — it was a book, a pamphlet, a card with a number on it and a disc. No-one needed to design new packaging.

It took over a year to even get the idea discussed. Ugly, but not unusual.

Decisions as to what to put in the box usually stem from earlier wisdom that was actually wise. The wisdom then loses some of its value over time, but systems and the people who run them fall into patterns they don’t want to change.

The Twins woke up and tried something different from what teams have been doing since their executives started working in baseball.

Shouldn’t you?



Drum Roll Please!

I’ve done it — I’ve found someone silly enough to pay me for doing what I was previously doing for free.  As of today, I have become an “affiliate” of the Blog Network.  The [non]billable hour is joined by The Volokh Conspiracy, May It Please The CourtI/P Updates,, Jottings by an Employer’s Lawyer, and Crime and Federalism (click here for a link to all of our bios).  I’m honored to be in such fine company and hope that my affiliation with the folks at profits everyone. 

I have a lot more going on here too.  In the next week, I’ll be putting up a “user’s guide” to this blog, and will rerun some of my favorite posts in a new “Best of the Blog” category. 

On the Five by Five front, I’ve been getting the submissions for my Law Student Edition and can’t wait to share the five ways each contributor would change legal education. 

I also hope to have an announcement soon on the innovation conference conference for lawyers.

Finally, I’m rolling out a new project here called “Building the Perfect Firm,” where I’ll draw upon the hundreds of ideas I’ve compiled in this blog, along with substantive suggestions from non-lawyer experts in marketing, architecture, client service, psychology, business and innovation to put together a blueprint for how law could be practiced in a fulfilling (and hopefully profitable) way.

Well, that should keep me busy for the next few months.  If you are new to reading this blog, welcome.  If you are a long time patron of t[n]bh, thank you.  And if you are reading this post in your aggregator, click through to my site from time to time to look at the pretty ad.  Grace needs a new pair of shoes.

The Psychology of Pricing

I ran across this interesting article in the November 2003 edition of Design:Business newsletter.  Though written for design professionals, there were some really good insights into the pricing of all professional services.  Just some snippets:

Although there is no question about the overall importance of pricing to the success of a design business, overemphasizing it is a common mistake. Many designers assume that pricing is a very important factor in success, which it is not.   Surveys of buyers of professional services consistently show that cost is never even among the top reasons clients give for choosing a supplier. Typically, the surveys show that cost ranks around tenth in importance. It is always lower than quality, service, dependability, flexibility, convenience, etc.  Creative Business knows of no similar surveys specific to the buyers of design services, but our experience among better clients with good projects is that cost ranks fifth in order of importance. Ahead of it are “chemistry,” or how much the client likes the individual(s) he or she will be working with; degree of relevant experience; portfolio quality and creativity; and service. Also relevant is that the more creatively challenging the job and more sophisticated the client, the less importance cost takes on. And vice versa.  Additionally, our experience is that skill in pricing ranks fourth in importance among the reasons some studios and freelances are more successful than others. Again, not number one. Higher in importance are the desire and motivation to succeed, the everyday working procedures that have been established, and marketing programs and efforts.

Understanding the psychology of design pricing is important because most clients accept that quality, results, and price go hand in hand. The higher the quality, the better the results, the more something is thought to cost.   This belief is especially relevant to the design market because clients place orders without seeing what they’ll be getting. They make purchasing decisions on the anticipation of quality and results based on little more than samples of similar projects and their confidence in a firm or individual.   Similarly, once the work is produced it will usually be subjectively evaluated before any market feedback is received. Here, too, client satisfaction depends mostly on perceptions of how well they believe their needs have been met.   Aggressive (low) pricing in such situations sends the wrong signal. It can lead clients to expect a reduction in quality and results. It can also lead to a destructive pricing cycle: the more price-competitive a design firm is seen to be, the less their work will be valued; and the less their work is valued, the more competitive they will need to be in the future.


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. 

Testing New Design

This is just a test.  The new design will be complete tomorrow, along with a bunch of new posts and some really cool news.  Thanks for your patience.

The Dream Firm

Jessamyn West at has this post about her dream library.  Two of her suggestions:

  • We’d be open when people wanted to use the library, not just when librarians wanted to work. How would we know? We’d ask them. [some surveys: here, here, here and here]
  • In my library, we’d fix your computer for you. We’d work the information booth at your event. We’d answer your questions any time and any place, not just when you come to us and wait at the reference desk for us to be free. We’d save your time, even if it sometimes meant sacrificing our own.

I’ve been thinking about how the dream law office (or any professional services firm) would look and operate — if it were designed by clients.  Any ideas?

My Tablet’s Back!

I wrote here about my Tablet PC being stolen.  It turns out that I had left it at a client’s office right before I ran to St. Louis (where I thought it was taken from my car).  I had asked that client if he had seen my computer and he said no.  Last Thursday, he brings it by my office.  Apparently, his wife had picked it up and — assuming it was his — brought it home from his office.  After about a week, he asked her whose laptop bag was in their foyer.  When she said she thought it was his, he remembered my inquiry.  Problem solved. 


Under Construction II

New redesign is coming next week. 

Help Wanted

The Anonymous Lawyer has one spot left in next year’s summer associate class.  As with all of AL’s posts, make sure you read the comments.  Hurry up and apply!

Under Construction

I’ll be making some big changes here at t[n]bh and ask that you cut me some slack with the design experiments.  If you are reading this blog via RSS, continue to go about your business.

Clutter is Never Free

Knowledge@Wharton has this great article with a conversation with one of the authors of Conquering Complexity in Your Business.  Some excerpts:

Complexity is a systemic effect that accumulates over time. So while you may have a perfect portfolio today, your customers’ tastes are changing—what’s good today is probably not good tomorrow. Many businesses respond by expanding their portfolio and placing more goods or services on the market. Each innovation may represent a source of customer value and profits at the time that it is introduced, but unless you have some mechanism for rebalancing that portfolio, complexity will creep into your processes, tax internal systems, and drive up costs. Even worse, you might strangle growth in the name of pursuing customer value.

Also, it consumes resources and can impede growth. If you have a portfolio of 4,000 products, you’re spreading your marketing resources across all those products, when you should be concentrating on core brands. We also find in our work that companies with a complex product or service line have a significant gap in their understanding of what truly drives their profitability. What’s important is that companies understand the relationships between complexity, cost, efficiency and growth, which we captured in a concept called the Complexity Equation. Management can then make rational decisions with these relationships being explicit, instead of implicit or unknown.  

As a general practitioner, this article hits a bit close to home. 

Worthwhile’s Thought for the Day

This great quote from Richard Koch (author of The 80/20 Principle) comes courtesy of Worthwhile

People put average effort into too many things, rather than superior thought and effort into a few important things. Pursue those few things where you are amazingly better than most others and that you enjoy the most.

Budgeting for High Risk Ideas

I’ve written before about how much I like the Report 103 Newsletter from the JPB Group.  Today’s issue (check here in few days for the archived version) suggested implementing a High Risk Idea Budget:

Some radical new ideas are so obviously brilliant that you can implement them and watch the money roll in. But these ideas are few and far between. Most radical ideas are highly risky. If they work, they might put your company way ahead of the competition and establish your firm as a market leader; or they might slash 25% off your operational costs; or they might cost your company an arm and a leg. Unfortunately, a lot of companies do not implement their hottest ideas precisely for this risk factor. Although everyone in the company loves the idea, the CFO reviews the numbers and says it is just too risky to contemplate.

Clearly, of course, no company should put the entire enterprise at risk. However, every company can and should establish a high risk budget for implementing radical ideas. This might represent five percent of the operational budget or 25%. It depends on the company and the market.

By defining a part of the budget for risky projects, you give your company an opportunity to implement the most exciting ideas. Many will fail. But a few will work. And a small number will be real winners that will repay your high risk ideas budget many times over.

Moreover, granting an employee – or a team of employees – a portion of your high risk idea budget can be a powerful reward (see previous story on rewarding innovation).

The primary point of resistance many firms seem to have to dumping the billable hour is that it may turn out to be unprofitable.  Why not set aside a certain number of clients (or an attorney or two) to implement some alternative billing strategies?

Dumping the Billable Hour (Again)

Jay Conrad Levinson and Michael W. McLaughlin, authors of Guerilla Marketing for Consultants write about one of my favorite topics:  abandoning the billable hour.  Some excerpts:

It’s time to dump the hourly rate once and for all.

To begin with, the hourly rate is a totally bogus number. It’s computed using very broad (and sometimes flawed) assumptions about a firm’s costs, volume and profit. And, many consultants toss those assumptions out the window and discount their hourly rates when they believe doing so will improve their chances of winning a project.

By charging a client for time alone, you completely undermine the expertise you’ve spent years building, and you limit the profit you can justifiably earn. Dozens of pricing alternatives exist that don’t rely on the hourly rate. Look for alternatives that lead to discussions with clients about the outcomes they want to achieve.

When pricing your next project, think results, not effort.

Thanks to Dana VanDen Huevel for the link.

The History of Ideas

I talk a lot about ideas here, and even sold quite a few at my garage sale a few weeks back.  I wonder what I would have gotten for this, the Dictionary of the History of Ideas.  Set aside a few hours and peruse this unbelievable digital version of Philip P. Wiener’s book from the early 70’s, “The Dictionary of the History of Ideas: Studies of Selected Pivotal Ideas.”  Really great reading.

My Tablet’s Gone

My Tablet PC is gone.  I think it was taken from my car in St. Louis last week, but I didn’t notice until the next day.  Insurance company won’t replace without a police report — the problem is, though I believe it happened when I was getting gas (and all of my windows were down), I can’t say for sure.  I’ve written here and there about how crucial the tablet has become to my practice and now it is gone.  Anyone out there have an extra Tablet they’d like to give me?  I’m really bummed.

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 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 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.

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

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.

Tom’s Rage Against the Medical Profession

Tom Peters is taking on the medical profession/industry in this post.  The money quote:

 The “system”—training, docs, insurance incentives, “culture,” “patients” themselves—is hopelessly-mindlessly-insanely (as I see it) skewed toward fixing things (e.g. Me) that are broken—not preventing the problem in the first place and providing the Maintenance Tools necessary for a healthy lifestyle. Sure, bio-medicine will soon allow us to understand and deal with individual genetic pre-dispositions. (And hooray!) But take it from this 61-year old, decades of physical and psychological self-abuse can literally be reversed in relatively short order by an encompassing approach to life that can only be described as a “Passion for Wellness (and Well-being).” Patients—like me—are catching on in record numbers; but “the system” is highly resistant. (Again, the doctors are among the biggest sinners—no surprise, following years of acculturation as the “man-with-the-white-coat-who-will-now-miraculously-dispense-fix it-pills-for-you-the-unwashed.” Come to think of it, maybe I’ll start wearing a White Coat to my doctor’s office—after all, I am the Professional-in-Charge when it comes to my Body & Soul. Right?)


The Law Office Experience points to a best practices study by  The Product Development & Management Association (PDMA) comparing performance and practices of over 400 companies and industries.  According to the study (as reported by

Not surprisingly from the 2004 study,”the best” performers generate 49% of their profits from new products — more than twice as much as “the rest”. Top performers recognize the incremental value that successful new products provide to customers and therefore to the bottom line.

How many new “products” have most professional service providers come up with in the last year?  The last decade?

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 5×5.  What is the bad side of the field I enjoy so much?


  1. 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.  


  1. 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. 


  1. 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.


  1. 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. 


  1. 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.

Five by Five – Mark Partridge

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.

The Chinese Advantage

From the Canadian Globe and Mail comes this article: From Cells to Bells, 10 Things the Chinese Do Far Better Than We Do.  Some great food for thought. Some highlights:

 2. Informative stop lights

In Tianjin, a city of 13 million people, traffic lights display red or green signals in a rectangle that rhythmically shrinks down as the time remaining evaporates. In Beijing, some traffic lights offer a countdown clock for both green and red signals.

During a red light, you know whether you have time to check that map; on a green light, you know whether to start braking a block away — or to stomp on the accelerator, as though you were a Toronto or Montreal driver. (That’s probably why Montreal has a few lights with countdown seconds for pedestrians.)

 4. Adult playgrounds

Hate paying those gym club bills? Loathe huffing and puffing around buff bodies in spandex? Beijing provides free outdoor exercise equipment in neighbourhoods throughout the city: walking machines, ab flexers, weight machines and rowing machines in bright reds, blues, yellows and greens.

Adult playgrounds get everyone out in the fresh air, especially seniors who might stay shut in at home. Teens like to hang out there, too. And it sends a not-so-subtle propaganda message about the benefits of healthy living.

 6. Daily banking

We feel so lucky when a bank branch in Canada opens for a few hours on Saturday mornings. (Notice the long, long lines?) But Chinese banks are now open 9 to 5, seven days a week. Even on New Year’s Day and other national holidays, at least some branches will open for business. The ones that are closed post helpful notices directing you to the closest open branch. And, yes, they do have a full network of ATMs.

7. Wireless service bells

Trying to flag down your waiter for a glass of water? Just press a made-in-China gizmo at your table. Your table number lights up on a panel inside the kitchen and your server is soon hovering by your side. The bell also eliminates that annoying waiterly interruption: “Is everything all right?”

The same gizmo in spas alerts masseuses when you’re demurely under the sheet and ready for their attention.

 10. Free hemming

This doesn’t count as cheap labour because only three people service an entire department store. In Canada, hemming a new pair of trousers adds at least $10 to the cost, plus two trips to the tailor. And you have to try them on again while you get measured.

At the No. 1 Department Store in Shanghai, the salesclerk measures you while you are trying on the pants, asking: “Will you be wearing these with high heels or flats?” If you decide to buy them, she scribbles the length on your receipt. You head to what looks like a gift-wrapping station where a man measures and chalks the pants, scissors off the surplus and flings them to two women behind him. One hems the raw edge on a machine and tosses it to the other, who stitches the final hem on another machine and presses them.

Even with two customers ahead of me, I swear it took under three minutes in all to get two pairs back.

When I tell the woman ahead of me that stores in Canada don’t do this, she’s astonished. “Really?” she says. “How inconvenient.”


Happy Halloween

I hope everyone had a safe and happy Halloween.  We did.

Customer Aftercare

One of the things we are working on at my firm is developing a systematic way to keep our clients happy and encourage them to recommend us to others they know.   Ernest Nicastro writes about Customer Aftercare on the web site (registration may be required).  He suggests several ways to use direct mail as an effective customer retention tool.  Here are the letters he suggests sending to clients with a time line as well:

“Thank You” letter: To be mailed the very day the sale is closed. Sure, this is something we all do—right? Well maybe all of us do it—but I know from experience that a number of those others don’t!

Letter from “Mr./Ms. Big”: To be mailed 10 days to 2 weeks after the account is opened. In a smaller company, it should come from the owner. In a larger company, a senior manager. This letter is a warm owner/senior management welcome and also informs the new customer that, ultimately, “the buck stops here.”  Sample wording. “If the product or products you’ve purchased, or anyone in my organization, fails to meet with your complete approval—now or in the future—I would like to know about it.”

How did I/we do? Mailed a week after the sale. It’s a friendly letter explaining how important honest feedback is to you because it’s the only way you can improve. Attached to the letter is a brief customer satisfaction survey and stamped return envelope. The feedback you receive from this survey will be of tremendous value to you in your ongoing marketing efforts. It will help you make more sales and generate increased profits

Happy anniversary: Sample opening: “It’s been a year (__ years) since you opened your account (closed on your house, closed on your loan) with us. I just wanted to say Happy Anniversary and thanks again. We look forward to working with you for many more years to come.”

At random, customer appreciation letter: Sample opening: “Do you ever get so caught up in the mundane, everyday responsibilities of your job that you sometimes overlook things? I know I do. And that’s why I’m writing you.” From that point you go on to tell your customer how much you value and appreciate them and their business.   Don’t do any selling in this letter. Helpful hint: Mail this letter right before you know your customer will be in contact with a large number of people—for example, right before Thanksgiving or before a trade convention or industry gathering. This way, you’ll get maximum mileage from the positive word of mouth that this letter creates.

“How are we doing?/How have we done?” survey cover letter: You should regularly survey your customers, at least once a year. Just the act of sending out the survey sends a message about how important they are to you. But the greatest benefit to you and your business is the feedback you’ll get on how you can improve. So, word your cover letter in such a way that it will encourage response.  Sample copy: “At ABC Widgets, we’re committed to offering you the affordable high-performance widgets backed up by a level of service that sets the standard for the industry. Your feedback is of tremendous help to us in measuring how well we’re meeting that commitment.” The survey, whether or not they return it to you, is one more indication that they are important to you.

Birthday cards: It used to be that if you visited any Petco store, you’d find forms to fill out with your pet’s name, address and birthday. Complete one, and during the month of your pet’s birthday Petco would send your Fido or Mr. Whiskers a birthday card and an invitation to come to the store and get a 10% discount. Shouldn’t we treat our human customers with similar care and thoughtfulness? I think you know the answer.

Hand-written “Congratulations” cards: Whenever you or your assistant read or hear about awards, appointments, promotions and other forms of recognition earned by your clients—or their children—acknowledge this with a letter or card. This is a small thing to do, but it is greatly appreciated (and will pay big dividends).

Thanksgiving letter: What better time to show our thanks and appreciation to our customers than right before a national holiday dedicated to being thankful and appreciative? One client I sent my Thanksgiving letter to liked it so much that he insisted on paying me for it so that he could adapt it and send it out to his employees and customers. (For a copy of this letter, send me an email to with Thanksgiving Letter in the subject line.)  As Thanksgiving is traditionally the start to the holiday season, another benefit to this letter is that you can work in your holiday greetings and best wishes for the season. This way, you’ll be among the very first to do so and your sentiments won’t get lost in the deluge of Christmas cards and Season’s Greetings that will come pouring in later.

This is fantastic advice for any service provider.  If you implement these ideas into your practice, you will be certain to be in the front of your client’s minds whenever they have a legal issue, or when someone they know is looking for a lawyer.