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.

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.

The Recording Industry, Disingenuous? Inconceivable!

When a recent Recording Industry of America (RIAA) court filing repeatedly used terms like “vexatious,” “good faith,” “frivolous,” or “integrity,” I couldn’t help but be reminded of the great swordsman-sage Inigo Montoya, whose response to a similarly questionable word choice was, “I do not think it means what you think it means.“

And isn’t it Ironic? A Little Too Ironic?

In the latest episode of unintended irony from the mouthpiece of the world’s musical Pentavirate, the RIAA has moved for dismissal without prejudice (.pdf) of their claim of copyright infringement against defendant Marie Lindor. Asking the court to sanction Lindor and attorney Ray Beckerman, the record-industry lobby describes such action as “appropriate where pleadings are filed without legal basis and for the improper purpose of supporting a bad faith public relations campaign . . . .“

To anyone who’s followed the RIAA’s litigation juggernaut, now entering its sixth year, a “bad faith public relations campaign” might sound oddly familiar. The record companies try to characterize Beckerman’s efforts as bad-faith PR in part because he posts “virtually every one of his baseless motions on his blog seeking to bolster his public relations campaign and embarrass Plaintiffs.” Not to take anything away from Mr. Beckerman, but when it comes to undermining its public image, the recording industry seems to do just fine on its own.

You say “awareness,” I say “harassment”;

Let’s call the whole thing off.

One thing you have to give the RIAA credit for is being experts on vexatious litigation and sketchy faith. Over the last five years, they have sued an estimated 30,000 people as part of an effort to “increase awareness” that downloading is illegal and that they will go after anyone they suspect of illegal file-sharing, be it a college student or a little kid, an old lady or a dead person. Hoping to avoid litigation, the RIAA’s standard approach is to offer a non-negotiable settlement of $3,750—a Hobson’s choice for the overwhelming majority of defendants for whom litigation is simply not an option. As a fallback, however, the RIAA fights tooth and nail against awarding attorney’s fees to those who decline to settle and eventually prevail.

The industry resorts to tactics that Beckerman calls “extortionate” in part because many of their cases are turning out to be less than a slam-dunk on the merits. First, the courts seem disinclined to find that “making [content] available” constitutes infringement without the “actual transfer” of copyrighted material. In fact, the Judge in Capitol Records, Inc. v. Jammie Thomas declared a mistrial after determining that he had incorrectly instructed the jury on that aspect of the Copyright Act. There’s also the problem of how the record companies find out whether a computer has copyrighted content available for downloading. The RIAA has contracted with a group called MediaSentry which “investigates” suspected computers by logging onto and downloading music via a P2P network, then taking a screen shot of the folder the songs came from. The Michigan Department of Labor recently notified MediaSentry that it could not “perform regulated activities” (.pdf) without a private detective’s license. Whether or not actions like this rise to the level of “vexatious,” they are without a doubt skeevy, to use a term of art.

Give the People What They Want.

While it’s possible that the court could find for the RIAA in this particular case, it doesn’t change the fact that, in the eyes of average consumers, the language the RIAA uses to excoriate Beckerman here applies too readily to their M.O. over the last five years. As courts continue to call them on playing fast and loose with procedure and discovery, and diminish the deterrent value of threatened litigation by setting aside high-dollar judgments and distinguishing consumers from corporate, piracy-for-profit defendants, the process will cease to be economically worthwhile. If the industry really wants to elicit support and sympathy for the legitimate bases of its position—that unauthorized downloading of copyrighted works is wrong, and that content owners should be able to protect their rights and their profits—it needs to stop acting like frustrated parents threatening to ground a petulant child. In any case, one hopes that the prevailing necessities of survival and relevance will ultimately compel the RIAA to replace tactics of intimidation and alienation with engagement and innovation. Or is such a hope so far-fetched and unlikely as to be—what was that word again?

Hey, I know that dude...

So, didja hear the one about the DHS drone who thought Wikipedia was good enough for government work? Anybody who's as big an "Arrested Development" fan as I will no doubt find it strangely familiar:

Bluth family attorney Barry Zuckerkorn ("He's very good"), counseling his clients on their position in a stock buyout:

Barry: So, basically, you’re about 2,000 shares short of being the majority stock holders. Now, unfortunately, it’s a private stock so you can not just buy up the shares unless someone is willing to sell.

Michael: Are you sure?

Barry: That’s what it said on ‘Ask Jeeves.’

Funny, right? Apparently, the 8th Circuit Court of Appeals didn't think so.

A mutual friend of the blog has more to say about it here.

Living with the law

There’s a good nature-vs.-nurture discussion going on over at Oklahomeless about the problem of the lawyer personality. Namely, Goldie wondered whether the profession attracts anti-social miscreants, or transforms otherwise decent, conscientious people into the argumentative, ass-clown caricature that populates the collective consciousness when people hear the word “lawyer.”

When I started applying to law schools, I liked to joke that I was going to single-handedly solve the legal industry’s P.R. problems by not falling prey to those forces that reduce young idealists to grizzled, cynical misanthropes and soulless corporate stooges. Based on my experience last year, I get the feeling that a lot of my classmates had the same idea. Maybe my law school attracts a kinder, gentler sort. I figure I’m either incredibly lucky or naive, but I really didn’t see a lot of the stereotypical sharky-gunner mentality at my law school. It’s competitive, sure, but in a collegial way. I was more acutely aware of the curve during the second semester, but it certainly never prompted me or anybody I know to withhold help in studying or understanding the concepts. What it’s like at other law schools, I can only wonder, based on what I see in movies and T.V.

As I wrote on Goldie’s blog, I don’t think of myself as having a (stereo)typical lawyer temperament. My first year was a revelation in that regard, prompting no small amount of hand wringing as to whether I was really cut out for the lawyer life. I’m not especially adversarial or aggressive; but what worries me more is whether I can really develop the ability to 1) spot issues and 2) form a decent argument on the basis of something other than a vein throbbing in my temple.

I can honestly and happily say that, much as I’ve enjoyed shows like “L.A. Law” and “The Practice,” they didn’t really inform my desire to become a lawyer. I sure as hell didn’t decide to chuck my former career to live the “Law and Order” dream (dun-dun!!) If I had to attribute my “I’m going to get a JD and change the world” ambitions to a pop-culture influence, it would probably be “The West Wing,” along with the usual noble suspects like To Kill a Mockingbird and Inherit the Wind. In other words, role models with almost not basis in reality, if I’m to believe the accounts of “real-world” practice that are beginning to filter into my consciousness.

I actually like that the profession demands precision and ordered thought. My goal, once I master the basic process, is to be able to combine precise reasoning with the kind of pithy verve that makes for compelling, persuasive advocacy.

I can’t say that any of my first year classes or pro-bono experiences got me especially hot to specialize in tort, property, contracts, criminal or constitutional law. Coming to law school from advertising, though, I did have a vague interest in Intellectual Property. Then I read this. It’s basically a guy who, as it turns out, chucked his legal career to start an online audio/video cable concern. And when the big bad wolves at from Giganticorp started huffing and puffing, he called bullshit and told them, with badger-like verve and chutzpah, what they could do with their little licensing-fee shakedown. Reading the letter was intensely satisfying—like watching a couple of muggers getting their asses handed to them when the little dude they start hassling turns out to be Bruce Lee. Wa-Pow! Justice, baby. Come and get you some.

Here’s a taste:

I have seen Monster Cable take untenable IP positions in various different scenarios in the past, and am generally familiar with what seems to be Monster Cable's modus operandi in these matters. I therefore think that it is important that, before closing, I make you aware of a few points.

I am "uncompromising" in the most literal sense of the word. If Monster Cable proceeds with litigation against me I will pursue the same merits-driven approach; I do not compromise with bullies and I would rather spend fifty thousand dollars on defense than give you a dollar of unmerited settlement funds. As for signing a licensing agreement for intellectual property which I have not infringed: that will not happen, under any circumstances, whether it makes economic sense or not.

I say this because my observation has been that Monster Cable typically operates in a hit-and-run fashion. Your client threatens litigation, expecting the victim to panic and plead for mercy; and what follows is a quickie negotiation session that ends with payment and a licensing agreement. Your client then uses this collection of licensing agreements to convince others under similar threat to accede to its demands. Let me be clear about this: there are only two ways for you to get anything out of me. You will either need to (1) convince me that I have infringed, or (2) obtain a final judgment to that effect from a court of competent jurisdiction. It may be that my inability to see the pragmatic value of settling frivolous claims is a deep character flaw, and I am sure a few of the insurance carriers for whom I have done work have seen it that way; but it is how I have done business for the last quarter-century and you are not going to change my mind. If you sue me, the case will go to judgment, and I will hold the court's attention upon the merits of your claims--or, to speak more precisely, the absence of merit from your claims--from start to finish. Not only am I unintimidated by litigation; I sometimes rather miss it.

In other words: Bring it, bitches.

For me, this is the inspirational equal of any movie, book, or Cardozo opinion. It’s really the first thing I’ve come across that made me say that’s what I want to do; that’s the kind of lawyer I want to be. If I can do that as a lawyer, I’ll know I made the right decision. I find it particularly encouraging that this is a real-world legal confrontation, not something distilled into a casebook illustration.

I’m eager to know what you all think of it, lawyers and civilians. Actually, let me amend that: I’m eager to have my (quite possibly naïve) take on the situation validated. So if my lawyer friends or more astute classmates think this guy is just another part of the problem Goldie describes, all I ask is that you me down easy.