4 ms·

I'm starting to wonder if the increasingly awkward framework of IP law isn't being used by unscrupulous lawyers to snooker otherwise intelligent clients into th

by alexqgb 15y ago

I'm starting to wonder if the increasingly awkward framework of IP law isn't being used by unscrupulous lawyers to snooker otherwise intelligent clients into thinking they have legal claims to recompense that the law doesn't actually support. In truth, the principles and practices governing these branches are remarkably distinct from one another. My suspicion is that the 'IP Law' umbrella has become a handy device for the kind of legal weasels who would let their clients believe they're more interchangeable than they really are, and that abusive tactics permissible in one area can be easily (and profitably!) adapted to the other branches. Presently, trademark law seems to be the most sensible and least problematic of the three branches. Copyright law is bad and getting worse, while patent law is already an off-the-deep-end horrorshow. It's discouraging to see the rot spreading to the TM sphere in the way it seems to be here. But kudos to the TPM folks for turning this into an opportunity for gleeful public mockery. It's a surprisingly effective counter to hubris everywhere.

dctoedt 15y ago
> "Legal weasels" It's more nuanced than that, I think. As Warren Buffett's business partner Charlie Munger (himself a co-founder of a major Los Angeles law firm) says, always look for the incentives. 1. A root cause, ISTM, is that we lawyers are trained to regard "zealous advocacy" for the client's cause (read: desires) as one of our highest duties. 2. True, we're also supposed to think of ourselves as officers of the court, and thus as gatekeepers. But look at how the incentives line up. 3. Start with an executive who has a highly-developed sense of "I want what I want, and I want it right freaking now." And what this worthy wants is for those [expletives] to stop doing X. 4. Add a lawyer who has strong financial- and reputational incentives to bring in work for him- or herself and for other lawyers in the firm. That's because: 4.1 Law firms tend to be dominated by rainmakers, not least because other law firms tend to court rainmakers who have big books of [portable] business. The national litigation firm Howrey LLP recently imploded because a few of its rainmakers were enticed to other firms, which started a run on the bank, because none of the other rainmakers wanted to be the last one out the door. See http://goo.gl/Zh0Sz http://goo.gl/Zh0Sz (NY Times). 4.2 Our lawyer also realizes that if s/he tells the executive, "sorry, you can't make those [expletives] stop doing X," then the executive is very likely to go shopping for someone who is "more of a team player." The lawyer's partners will then ask pointed questions about why the client went elsewhere. 4.3 Mix in the fact that when "creative" (read: aggressive) lawyering succeeds in "breaking new ground," the lawyer reaps the admiration of his peers. In contrast, there's little downside for a lawyer to be aggressive -- rarely will a judge throw the book at a lawyer for being over-aggressive, because the rules are designed to accommodate "zealous advocacy" (see point 1 above). 5. Considering the above, it's no surprise that lawsuits can get "creative" in their assertions.
- dmlorenzetti 15y ago
  A root cause... is that we lawyers are trained to regard zealous advocacy for the client's cause (read: desires) as one of our highest duties. In her book "The Argument Culture," linguist Deborah Tannen tells about wanting to do video interviews in different companies. If she could get a verbal agreement from the company heads, everything always went fine. However, if the company brought in its attorneys, it was never possible to negotiate an agreement-- even if the company heads themselves directed the attorneys to make it happen. See https://www9.georgetown.edu/faculty/tannend/argsake.htm https://www9.georgetown.edu/faculty/tannend/argsake.htm
  - dctoedt 15y ago
    > if the company brought in its attorneys, it was never possible to negotiate an agreement-- even if the company heads themselves directed the attorneys to make it happen. There are several reasons for this. Here's one: Sure, "make it happen" is what the company heads say now. But suppose problems arise later. And suppose it turns out that one of the lawyers missed something. Sure as shootin', that's where fingers will be pointed -- "why didn't you warn me about that?" So the lawyer's instinct, and incentive, is to look under every rock, to call the client's attention to every possible pitfall, lest he be blamed later for not having done "his job." It exacerbates the problem when the lawyer doesn't have enough business experience to know what's likely to be an acceptable risk. (This can be true even of senior lawyers.) You end up with two opposing counsel arguing over who's right, not having the maturity of judgment to know when it's less important to decide that than it is to get ink on the signature lines and let the parties get on with their business together.
    - alexqgb 15y ago
      Interesting analysis, @dctoedt. Given what you say about its toxic incentive structure, it's no wonder that the legal profession is held in such frequent contempt. I suppose this goes hand-in-hand with the fact that lawyers suffer from alcoholism and depression at rates noticeably higher than the population in general (grim consolation for the rest of us, I assure you). You've also done a great job explaining the phenomena noted in the (excellent) link provided by @dmlorenzetti. Given that lawyers often have more to gain by (slowly) killing deals than making them happen - at least not quickly or easily - I can see why it's good policy to keep them at a safe distance from anything that HAS to go through. As one savvy executive put it "you want them on tap, not top."

by alexqgb 15y ago

dctoedt 15y ago

> "Legal weasels" It's more nuanced than that, I think. As Warren Buffett's business partner Charlie Munger (himself a co-founder of a major Los Angeles law firm) says, always look for the incentives. 1. A root cause, ISTM, is that we lawyers are trained to regard "zealous advocacy" for the client's cause (read: desires) as one of our highest duties. 2. True, we're also supposed to think of ourselves as officers of the court, and thus as gatekeepers. But look at how the incentives line up. 3. Start with an executive who has a highly-developed sense of "I want what I want, and I want it right freaking now." And what this worthy wants is for those [expletives] to stop doing X. 4. Add a lawyer who has strong financial- and reputational incentives to bring in work for him- or herself and for other lawyers in the firm. That's because: 4.1 Law firms tend to be dominated by rainmakers, not least because other law firms tend to court rainmakers who have big books of [portable] business. The national litigation firm Howrey LLP recently imploded because a few of its rainmakers were enticed to other firms, which started a run on the bank, because none of the other rainmakers wanted to be the last one out the door. See http://goo.gl/Zh0Sz http://goo.gl/Zh0Sz (NY Times). 4.2 Our lawyer also realizes that if s/he tells the executive, "sorry, you can't make those [expletives] stop doing X," then the executive is very likely to go shopping for someone who is "more of a team player." The lawyer's partners will then ask pointed questions about why the client went elsewhere. 4.3 Mix in the fact that when "creative" (read: aggressive) lawyering succeeds in "breaking new ground," the lawyer reaps the admiration of his peers. In contrast, there's little downside for a lawyer to be aggressive -- rarely will a judge throw the book at a lawyer for being over-aggressive, because the rules are designed to accommodate "zealous advocacy" (see point 1 above). 5. Considering the above, it's no surprise that lawsuits can get "creative" in their assertions.

dmlorenzetti 15y ago
A root cause... is that we lawyers are trained to regard zealous advocacy for the client's cause (read: desires) as one of our highest duties. In her book "The Argument Culture," linguist Deborah Tannen tells about wanting to do video interviews in different companies. If she could get a verbal agreement from the company heads, everything always went fine. However, if the company brought in its attorneys, it was never possible to negotiate an agreement-- even if the company heads themselves directed the attorneys to make it happen. See https://www9.georgetown.edu/faculty/tannend/argsake.htm https://www9.georgetown.edu/faculty/tannend/argsake.htm
- dctoedt 15y ago
  > if the company brought in its attorneys, it was never possible to negotiate an agreement-- even if the company heads themselves directed the attorneys to make it happen. There are several reasons for this. Here's one: Sure, "make it happen" is what the company heads say now. But suppose problems arise later. And suppose it turns out that one of the lawyers missed something. Sure as shootin', that's where fingers will be pointed -- "why didn't you warn me about that?" So the lawyer's instinct, and incentive, is to look under every rock, to call the client's attention to every possible pitfall, lest he be blamed later for not having done "his job." It exacerbates the problem when the lawyer doesn't have enough business experience to know what's likely to be an acceptable risk. (This can be true even of senior lawyers.) You end up with two opposing counsel arguing over who's right, not having the maturity of judgment to know when it's less important to decide that than it is to get ink on the signature lines and let the parties get on with their business together.
  - alexqgb 15y ago
    Interesting analysis, @dctoedt. Given what you say about its toxic incentive structure, it's no wonder that the legal profession is held in such frequent contempt. I suppose this goes hand-in-hand with the fact that lawyers suffer from alcoholism and depression at rates noticeably higher than the population in general (grim consolation for the rest of us, I assure you). You've also done a great job explaining the phenomena noted in the (excellent) link provided by @dmlorenzetti. Given that lawyers often have more to gain by (slowly) killing deals than making them happen - at least not quickly or easily - I can see why it's good policy to keep them at a safe distance from anything that HAS to go through. As one savvy executive put it "you want them on tap, not top."