Mr. Middlebrow, Esq. or How I Learned to Stop Worrying and Pass the Bar

Hello, Internet. Yeah, it's been a while. Not much, how 'bout you?

So, for those scoring along at home in their lucky souvenir programs, I sat for my state's Bar Exam on July 27 and 28, 2010.

True to the predictions of Snag and some others who went before me, I came out of the exam absolutely certain that I had failed. In particular, my performance on the second day, the Multistate Bar Exam (MBE), felt so abysmal that I was ready to book a room at the Ramada Inn where I stayed; I was that sure I would be coming back to retest in February. But, I'm pleased to report that (again, as Snag had forseen) I passed. I was admitted to the State Bar in late August.

So now I'm a bona fide esquire. Given the dismal employment picture, I've decided to hang out my shingle; I've even got a TV commercial:

My current job, while not perfect, meets the minimum criteria that I established for myself when I graduated: it doesn't involve me asking, "would you like that with regular or skim milk?" 
Actually, I've been working as a part-time clerk and sometime associate--a "clerksoicate," if you will (which makes me the legal equivalent of Dr. Tobias Fünke's "Analrapist"?) for a solo lawyer whose practice consists mostly of bankruptcy and insurance subrogation debt recovery. On the one hand, it's not exactly the kind of law I'm interested in practicing; on the other hand, it meets the minimum employment criteria that I established for myself when I graduated. Namely, it doesn't involve me using the phrase "would you like that with regular or skim milk?" In other words, it's a real lawyer job. Mostly. And, along with showing me the basics of civil procedure and litigation, he's been helping me get my own practice going. Which means that, in between filing (and occasionally arguing) motions, I'm networking and generally doing what I can to scare up copyright and trademark clients.

My plan now is to get an IP blog going and establish myself as a go-to source for innovators--start-ups, small businesses, and artists--who have IP issues. I suspect half the battle is making them aware that they have issues in the first place. In any case, any and all referrals and leads are welcome and appreciated.

What this means for the future of this blog is uncertain. It's always been a struggle to maintain it and the advent of Facebook and Twitter has removed even more of the incentive to keep it up. I do hope regular readers of A Drinking Song will check out my new digs as they come online. Also, please friend and/or follow me if you're so inclined. I'm also on LinkedIn, though I haven't found that to be of much use, either for networking or entertainment/goofing off.

No Longer a Law Student; Not Yet a Lawyer.

It's official: on May 9, 2010, I graduated from law school. Three years come and gone without so much as a By Your Leave, or so it seems. For about two weeks, which felt more like 48 hours, I luxuriated in a nice little buzz of accomplishment, soaking up all the congratulations and well-wishes from classmates, professors, friends, and family.

Gradually, though, it began to dawn on me that, however significant and worthy of celebration earning a J.D. might be, until I’m licensed to practice law it’s really just a very expensive wall-hanging. In other words, my little good-job glow very quickly gave way to the startling realization that I have to take and pass the bar exam. And to do that, I have to study. There are, I have heard it rumored, people who start working full time after graduation and study for the bar in their “spare time.” These are likely the same people who would say of crucifixion that it’s a dawdle; at least it gets you out in the open air. They’re either legal savants who sailed through their law school classes and exams with nary a care about the difference between reses ipsa and judicata, or they’re severely deluded. I, however, fall into neither of those categories. Which means that I have entered that dreaded fugue state known as bar prep.

My first thought was, "This is all so straightforward and clear. Why didn’t our professors teach it this way?"

At present, there are basically two brands of bar-prep course to choose from, Kaplan/PMBR or BarBri. Apparently, this is a relatively recent expansion of the competitive field, at least where state-specific content is concerned. I signed up for the Kaplan course, not least because it was several hundred dollars cheaper than the more established (read: former monopolist) BarBri, but also because, if my time in the ad game taught me nothing else, I know desperation when I smell it. See, e.g., the BarBri posters sporting a giant Guinea pig or the dire warnings about no one ever having passed the NC bar using the Kaplan course. Fear, uncertainty, and doubt much?

When I began my course, which consists of a three-hour lecture each morning, followed by an afternoon of practice questions and review—my first thought was something like This is all so straightforward and clear. Why didn’t our professors teach these subjects—torts, property, and especially constitutional law—this way? Why didn’t they just lay out the various rules and tests and elements and principles of law from a nice, succinct outline? But the reality is, without the three years (or at least the first year) of Socratic method applied to a vast body of case law, I wouldn’t have the first clue about what lecturers are saying. For the big topics, they condense a semester’s worth of material into about 12 hours of lecture and a 40- to 50-page outline. But the only way this works as a teaching and test-prep method is if the student knows the shorthand lingo. Law school might not prepare you to practice law, but it definitely trains you in the peculiar patois of the profession, so much so that you aren’t even aware of your fluency. Before law school, I didn’t know strict scrutiny from Shine-ola. But now, I can quote Cardozo and balance equities with the best of them.

The problem is that, while the presentation of the information is relatively straightforward, the volume of substantive, black-letter law being presented is truly staggering. Ultimately, this just reinforces an idea that I started to appreciate around the end of my first-year summer: law school and, I suspect, law practice are really less about substance than it is about process. It’s not about what you know, but do know where and how to find out, and do you know what to do with it once you find it? But what’s occurred to me now is that in bar-prep land, substance--and how much of it you can take in, process, and recall--is the process. In purely practical terms, three years of law school is the mental equivalent of prepping for one of those competitive-eating contests; bar prep is simply an exercise in seeing how many intellectual Vienna sausages I can stuff into my cranium between now and the end of July. Waiter, set me up with another plate of 33 MBEs.

Right Now, We're Just Using "Junior"

As many of you know, my wife and I have been anticipating the birth of our second child, who various reliable authorities—including an ultrasound—had led us to believe would be a girl, and whom our son, (a.k.a. the man-cub) had given the pre-natal sobriquet “Pinkie Snickerdoodle.” He was very excited at the prospects of having a baby sister, and we had invested considerable (read: all) our brainstorming into girl’s names. Well, Pinkie was born Friday morning, November 13, 2009, at 8:19 a.m. in the bathroom of our palatial student-housing apartment, attended by yours truly, guided via cellphone by the inbound midwife who arrived around 8:25. Truly, it was like Cyrano de Bergerac meets Airport ’75.

"Salt Lake, something hit us.
There's no one left to fly the plane. Help us!"

The baby was and is perfect: ten fingers, ten toes and—wait for it—one penis. HELL-oh!. Yes, “Pinkie” is a beautiful, nine-and-a-half-pound, twenty-one-inch-long boy-child, much to his older brother’s consternation. Beyond the loss of the lone condition under which he was willing to accept siblinghood, we’re left in a bit of quandary: we had a great short list of girl’s names and had even settled on one we really liked. But we never gave any thought at all to what we’d name a boy. Not that it’s not big problem, all things considered. Friday the 13th will now and for all time be the day I had the extraordinary, once-in-a-lifetime good fortune to catch my child at the moment he came into the world.

Over the last few weeks, whenever I’ve told this story, the assumption, almost to a person, is that labor came on so fast that we didn’t even have time to get to the hospital. When I explain that we’d actually planned to have the baby at home, the reaction turns to some variation on bemusement and suspicion: Oh, you’re one of those couples. If by that you mean people who don’t take as gospel every bit of wisdom and insight that comes from somebody with an M.D. after his name, then, yes, that’s who we are.

Pretty much since the day after our first son was born (in a hospital, attended by a truly excellent and extremely supportive OB) my wife has vowed, if only to herself, that if she had it to over again, she’d have a home birth, attended by a midwife. About halfway into this pregnancy, she showed me “The Business of Being Born,” produced by and featuring Riki Lake. Yes, that Riki Lake. The film really throws back the curtain on the myth that has grown out of the “modern” approach to child-birth, namely, that the only responsible choice is to march in lockstep with the conventional wisdom and have your baby in a hospital, with an epidural, pictosin, if not an “emergency” C-section.

The movie presents some pretty alarming statistics about the kinds of problems that have grown out of this uniquely American concept of birth as some kind of medical malady requiring lots of high-tech expertise and intervention rather than a natural process that works out best for the mother and the baby when facilitated by a midwife in comfortable, familiar surroundings. After watching it, and weighing all the other factors, I was on board with the idea of a home birth. Now that I’ve actually gone through it, much more first-hand than I ever would have expected, I’m actually a zealous convert to the belief that babies, absent some kind of extenuating circumstances, should be born at home. Or more correctly, wherever and however mothers are the most comfortable giving birth.

This is not to sell short the role and the value of OBs, “birth centers” and the expensive machines that go "bing!" when employed under the appropriate circumstances. I’m not dissing women who go this route, and neither, do I think, is the TBoBB, despite a lot of criticism that's been leveled at the film. What I find the most troubling—what the movie pointed out, and our experiences validated—was how irretrievably mainstream this attitude has become, such that now, anyone who questions it is branded as fringe or heretical: “Who dares to challenge the great and powerful OB?!” Granted, as an episode of Mad Men all too aptly demonstrated, the hospital births of today have come a long way from what it was when I was born. But I still think there’s a serious, polar imbalance in play there. Especially when mothers and fathers don’t exercise the same degree of conscientious inquiry about the birth of their children as they do in deciding which kind of TV to buy.

Having been there and done that both ways--in the hospital and at home--I'm here to tell you the latter is so vastly superior. Consider this comparison of our experiences between the first birth and this one: Labor started about the same time--around 6:00 in the morning, maybe earlier the first time, but she didn’t deliver until almost 4:00 in the afternoon, after something like four hours of pushing. (This is where I have to credit our OB with really advocating on our behalf by letting my wife push and not pressuring her into a C-section.) Truly, the day was like a siege; so much so that I was kind of dreading this birth. This time around, though, it was maybe two hours from first contractions to cutting the cord. In my wife’s estimation the difference this time, aside from the general tendency for second/subsequent children to come quicker, was that there was no hopping into the car and driving to the hospital, being admitted, etc.—while she was in transition—to put the brakes on labor. She also was able to birth in a way that was much more, well, instinctual. And I guess that's my point. I'm not trying to tell anybody how they should have their baby. I'm just saying that it's worthwhile to recognize the range of options and consider which ones really will be the best for you and your baby.

I have a very good feeling about this...

So, have you heard about the brainchild of Casey Pugh, a.k.a. The Chosen One? It's something called Star Wars: Uncut, wherein fans of the original Star Wars choose and remake up to three :15 segments of the 1977 classic. Here's the trailer:

How apt that the subtitle of Star Wars: Episode IV is “A New Hope.” A big ol’ digital quilting bee like this is exactly the way we shall realize the full promise and potential of the Internet. Lawrence Lessig has foreseen it:

Search your feelings; you know it to be true. This will restore balance to the universe, return us to the days of democratized content creation, where there was a lot less difference between those who make art and those who consume it. Things will be like they were—before the dark times, before the Empire.

Fortunately, I understand that, while Lucas has legions of underlings whose sole job is to maintain continuity among all the various narrative threads of the Galaxy Far, Far Away, he’s also said to be pretty tolerant of the fan creations his works inspire. In any case, this is really more parody than unauthorized derivative work; as such it would probably be easier to assert a fair-use defense. On the other hand, if it turned out that Lucas were to prevail in an infringement action, the statutory damages would be, well, more than you could imagine.

Open Daily until 11?

There’s something about this image that just makes me smile. Of course, it also makes the future IP lawyer in me cringe a little, but, on the other hand, it’s got just the right amount of rock-and-roll, bird-flipping attitude that any self-respecting axe purveyor needs to establish its street cred. And really, as long as they’re not hawking counterfeit Strats, I can’t imagine Fender would get too up in arms over (what I assume is) the unauthorized use of its trade dress. Even if they did, I think the shop would have a good shot at mounting a nominative fair use defense. On a related note, do you suppose Christopher Guest would consider his copyright infringed if they actually made each of the dials go to 11?.

The only downside I can see: you get the full effect only when the place is closed.

A Paternal Level of Zen to Which We Might Aspire

Or, "Songs I Never Hated, Volume II: Father's Day Edition."

SSN#: ____-____-_____

When the sun comes up and you stare your cup of coffee, yup,

Right through the kitchen floor

And you feel like hell, so you might as well

Get out and sell your smart ass door-to-door.

And the missus wears her robe slightly undone

As your daughter dumps her oatmeal on your son

And you keep it hid

Just like your dad did

Just like your dad did

So you go to work just to watch some jerk

pick the perks you were in line to get

And the guy who hired you just got fired

And your job’s expired, they just ain’t told you yet

So you go and buy a brand-new set of wheels

Just to show your family just how great you feel

Actin’ like a kid

Just like your dad did

Just like your dad did


And you’re a chip offa the old block

Why does it come as such a shock

That every road over which you walk

Your dad already did?

Yeah, you’ve seen the old man’s ghost

Come back as creamed, chipped beef on toast

Now if you don’t get your slice of the roast

You’re gonna flip your lid

Just like your dad did

Just like your dad did

Well the day was long, now supper’s on

The trill is gone and something’s takin’ place

And the food is cold, the wife feels old

and all hands fold as the two-year-old says grace:

She says, “Help the starving children to get well

But let my brother’s hamster burn in hell!”

You love your wife and kids

Just like your dad did

Just like your dad did

Just like your dad did

Just like your dad did

Boldly Going Where Many Have Gone Before

So, I finally caught the new Star Trek. The word that comes to mind to describe it—the thing that really makes it work—is verve. And verve covers a multitude of sins. In fact, on some levels, this the most satisfying interpretation of the well-traveled Trekkie mythology. JJ Abrams has managed to bring a freshness and a vitality to the proceedings that no other of the Enterprise’s many creative captains has been able to match.

At the outset, I should make it clear that I’m no fanboy. I’m a moderately geeky sci-fi consumer generally, with a slightly higher than average interest in and knowledge about Star Trek. As a kid, the original series was part of the regular weekday afternoon menu (bereft of much nutritive value) that included The Brady Bunch, The Partridge Family and Gilligan’s Island. I’m definitely not one of those people who got all exorcised about the “reimagining” of Battlestar Galactica. Starbuck’s a woman? Fine. Boomer’s a Cylon? Whatevs. As long as it makes for good storytelling, I’m on board; there are no sacred cows in my entertainment universe. I just want to be engaged and entertained with intelligence and wit. In that regard, Firefly was pretty nearly perfect, and, thus, doomed to fail.

To me, the Star Trek franchise peaked with The Next Generation and got less relevant/more cheesy with each subsequent iteration. One unintended consequence of this latest installment is that it renders all Star Treks almost unwatchably dorky, no matter how much Shakespearean thea-tuh credibility Patrick Stewart brought to the bridge. I think, though, that’s as much a function of timing and evolution—for its time, TNG was not only a great improvement on the original but a really strong sci-fi series in its own right. One thing that really drew me to the latter-day Battlestar Galactica was how deliberately un-sci-fi it was. But it also had the benefit of being higher up the evolutionary ladder in terms of creative and audience sophistication. So to give credit where it’s due, one big reason Abrams’ Star Trek works so well is that some of that BSG attitude—including a premium on plausibility that underlies other recent “reboots” from Bond to Batman—has rubbed off on it. Given how Abrams really made his bones reinventing the 1-hour TV action/drama, I’d love to see what he could have done with Enterprise. Talk about promise squandered right out of the gate.

I read somewhere how Abrams fretted over not alienating die-hard fans while not scaring away the (non-costumed members of the) mainstream audience. Happily, there’s no genuflecting to orthodoxy here. Abrams very shrewdly jettisoned most everything unnecessary, though he retained some fun atmospheric touches—the little ping-pew-ee-oo sonar on the bridge, a hover-cycle that sounds for all the world like George Jetson’s car, and a sick-bay nurse rocking a mini-skirt smock—as a comforting nod to nostalgia. Abrams succeeds by according the Star Trek myth just enough deference to function as setup for some pretty hilarious in-jokes. The film’s buoyant charm and winking humor even won over my wife—quite possibly the galaxy’s biggest sci-fi anti-fan—whom I’d dragged along almost caveman-style, but who emerged from the theatre gushing about it. I thought I’d gone through a worm-hole, let me tell you.

A few things don’t work—Scotty’s inadvertent beaming into the giant tube of otherwise harmless water was by turns reminiscent of Willy Wonka and Galaxy Quest. Never a good sign when your references point to a parody instead of the original thing. And the Delta-Vega monster chase/dénouement was rather baldly “Obi-wan scares the Sand People out of the Hoth Snow Cave.” Also, the time-travel crutch has become tiresome, but who can expect a guy like Abrams to leave that alone? In other words, none of these is a deal-breaker, given how irresistible and enjoyable the whole experience is. It’s as if Abrahams said to the writers and actors, “I need more fun!” And they all answered back, “Captain, we’re givin’ ‘er all she’s got!” Mr. Sulu, ahead, verve factor nine. Engage.