[Back in 2018,] I put together a Spotify playlist about intellectual property. I keyword-searched for copyright, trademark, patents, publicity rights, trade secrets, intellectual property, and many others. I took a broad view of when the lyrics seemed to relate to IP in some manner, but I excluded songs where at most the phrase appeared in the lyrics but had no other connection. I excluded instrumentals (especially house/techno). I also excluded all foreign-language songs and most songs that were impossible to understand and the lyrics weren’t online, even if the title was a direct hit. I tried not to make any artistic judgments about the songs, but some were so truly awful that I never, ever wanted to hear them again. I’m sure I’m missing relevant songs–please help me by sending your suggestions.

The playlist itself covers a wide range of musical genres. You won’t be familiar with most of these songs. This mix contains some serious long-tail stuff. Relatedly, most of the songs aren’t great. (And please try to empathize about the dreck I suffered through to find the relevant songs). Also, a number of songs contain inappropriate words, including profanity and racial/sexist slurs. I didn’t screen out songs on that basis. Caveat listener.

One interesting phenomenon I discovered: songs that used “copyright” as an euphemism for control in a romantic context, including “I’m Going to Copyright Your Kisses,” “Copyright on Your Love,” “Copyright to Her Heart,” and “Copyright on Love.”

A special shoutout to “Title 17 in Song: Section 101 Definitions,” which literally uses the statutory text as lyrics and then adds accompanying music. You have to hear it to believe it. Some of my favorite songs include “Berne Convention,” “Children,” “Computer Program” (complete with auto-tuning), “Display,” “Including/Such As,” and “Work Made for Hire.” You MUST listen to it!

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As I’ve been thinking about that time period in my life, I realized that I have rarely publicly discussed that I spent a summer at Sidley. Unless you knew me 30 years ago, you probably have no idea about this stop in my journey. This post will explain why.

A reminder: As a JD/MBA student in the class of 1994, I had 3 summers: 1L summer in 1991, 2L summer in 1992, and 3L summer in 1993.

Background

In the late 1980s, I worked in a real estate brokerage firm representing tenants in commercial leasing transactions. In 1990, it was clear that the Los Angeles real estate market would crash due to the savings & loan scandals of the late 1980s. I figured I would get my JD/MBA during the crash, so that after graduation I would be well-positioned to find a job as a real estate developer in Los Angeles when the economy rebounded.

As you may recall, summer 1991 was a nadir for summer associate jobs at law firms. Few firms were hiring 1Ls into their summer associate classes. I sent out 100+ resumes to firms all over the West Coast, got a few interviews, and no offers. Frustrated by my strikeouts, I explored markets where I thought I could be more competitive. My mom had a condo in Palm Springs that she rented seasonally, but it was vacant in summer for obvious reasons. I figured that there wouldn’t be much competition for a summer job in the desert, so my application would be more likely to stand out there. Indeed, I sent three applications and got three interviews, including an offer from a small tax and litigation firm, Sanger and Stein. I still talk about that experience today as an anecdote about aggressive job searching.

How I Got Hired at Sidley

My 1992 summer job search inevitably was going to be better than my 1991 summer search. First, the economy had rebounded slightly compared to 1991. Second, my resume improved in the first half of 1991. In my first 1L semester, I had 2 Bs and an A (an AmJur) on my transcript–a decent start, but not compelling in the down market of summer 1991. I got all As in my second 1L semester, including 2 more AmJurs, plus I wrote onto law review in Spring Break 1991. By July 1991, I had the standard academic credentials prized by most firms at the time.

Third, for summer 1992, I could apply as a 2L instead of 1L…but this was a bit of a cheat. In 1991-92, I did the standard first-year MBA curriculum and only took 1 law school course beyond my 1L classes. More importantly, I had two summers left, which for most firms classified me as a 1L. Indeed, many firms politely rejected my application with a suggestion to reapply for summer 1993. However, a few firms treated me as a 2L for summer 1992 purposes.

I sent letters directly to firms in July 1991, before OCIs started, and I got at least two callbacks in July/early August before school started, with Sidley & Austin and Proskauer Rose. Both firms extended offers before OCIs started. Proskauer Rose focused on employment law, which didn’t interest me. I preferred Sidley because they seemed to have more real estate-focused work. Also, they were well-known at the time (and still?) for being snooty about grades, so I figured the firm’s prestige would benefit me no matter what. Having the Sidley offer in my hands before OCI allowed me to cut loose other firms I wasn’t interested in.

My dream firm that summer was O’Melveny & Myers. I liked it due to its prestige, the amount of real estate work it was doing, and a great screening interview with a UCLAW alum, Kim Wardlaw. (You may recognize her name: she was appointed to the Ninth Circuit in 1998 and is still on the bench). However, my callback interview was disastrous. For the lunch portion of the interview, the partner drove me to the Santa Anita racetrack to watch the horse he owned run a race. “Lunch” at the racetrack–if you can call it that–was on the firm, but the partner reminded me that all bets were on my own dime. He may have forgotten that many students don’t have a budget to play the ponies. After the race, we walked down to the track to greet his horse, meaning that we traipsed through the mud and horseshit in my finest clothes. I’ve never conclusively determined if the partner genuinely thought the racetrack outing was a good idea or if he was just a narcissist, but I’m still shocked that the recruiting department approved it. In any case, the firm no-offered me. I have occasionally wondered how my career trajectory might have changed if the OMM offer had come through.

I also considered summer 1992 jobs on the business side. Most of the formal MBA summer programs were with consulting firms or investment banks, neither of which I wanted to pursue. The real estate market was still in the tank, so real estate developer summer jobs were going to be rare or nonexistent. As a result, Sidley & Austin was my best available option at the time.

The Work and Culture

I wanted to do real estate work that summer, but I got more environmental litigation work, a big part of the office’s practice. I also worked on a couple of entertainment financing projects, such as those forgettable early 1990s direct-to-video productions. I preferred the transactional work, but entertainment financing wasn’t a core part of the office’s practices, and I couldn’t tell if there would be an option for me long-term. Plus, I now know the entertainment work would have put me on the wrong side of the copyright debates. In any case, based on the projects I got and how I evaluated the office’s priorities, I didn’t see a good fit for my professional goals.

I also struggled with the office culture. I’m usually a steady stream of self-deprecating and sarcastic attempts at humor, which I don’t think fit the office norms. I remember, in particular, a recruiting dinner with the office managing partner on a Friday night, which you’d think would be a relaxed affair. For a couple of hours, I did my standard shtick but not a single joke appeared to have landed. NOT ONE. I wondered–is this my future? To work with colleagues who don’t share my humor? Maybe I would lose my sense of humor?

My Denouement With Sidley

At the end of the summer, Sidley invited me to return for 3 weeks in summer 1993, when they would potentially give me a permanent offer. This was standard practice at the time (and may still be?). I think the idea was that the student, after sampling another firm, would fall back in love with the first firm, plus it gave the firm a strong position to close the deal.

As expected, when I interviewed as a true “2L” (really, 3L), I had many more options. Some of the offers I took most seriously were Cooley (Palo Alto), Wilson Sonsini (Palo Alto), Irell & Manella (LA), and Skadden Arps (LA). As you know, I chose Cooley–a decision I’ve never once regretted.

Due to UCLA’s wacky course scheduling for the JD/MBA program, my summer break in 1993 started in May and ended in September. As a result, I had time to return to Sidley without reducing my time with Cooley. Yet, I couldn’t justify going back. It just wasn’t what I wanted out of my career. I decided that if Cooley didn’t work out for whatever reason, I would seek jobs on the business side rather than accept a fallback permanent offer with Sidley. As a result, I declined the offer to return to Sidley in summer 1993, and my contacts with the firm quickly faded.

I can’t recall when Sidley dropped off my resume, but it was within a couple of years. It was only a summer position, and my experiences at Cooley were so much more important to my story. That’s why my Sidley stint has become a lost/secret piece of my history.

Summer 1992 Was a Pivotal Period in My Life

When I started searching in July 1991 for 2L summer jobs, I still planned to pursue a career as a real estate developer. Two major things changed between my Sidley offer in August 1991 and when I showed up at the law firm in June 1992. First, during my first year of business school, I became excited about venture capital, innovation, and entrepreneurship. That sparked my interest in the Silicon Valley. Second, I got my first email account in Fall 1991 through the business school, and it blew my mind. I became fascinated with Internet law.

While browsing the stacks in the Sidley library after hours (yes, law firms used to have physical libraries, and browsing stacks was how we discovered new content before RSS and social media), I stumbled across this Computer Lawyer article that changed my life. It was a routine summary of the Cubby v. CompuServe opinion, but I became obsessed with the issues it raised. I pivoted towards the legal issues of UGC, and I wrote my law review note on the law of BBSes. Working on that paper in December 1992, I decided that I wanted to become an Internet lawyer. I’m still pursuing that ambition 30 years later.

You can see how my Sidley 1992 summer experience was a key piece of broader transitions in my life. By October 1992, I had the “place”–Cooley in the Silicon Valley. By December 1992, I had the “plan”–Internet law. The third and final piece came a year later, in December 1993, when I met Lisa–the daughter of my boss at the Palm Springs law firm–and I had the “partner.” (Yes, I married the boss’ daughter. Such a cliché). There’s evidence that men’s brains complete their maturation at age 25, and I turned 25 in April 1993. I strongly believe those last bits of maturation contributed to the whirlwind of crucial life decisions I made in 1992 and 1993.

At Santa Clara University, we often talk about making our educational programs “transformational experiences” for students. Some of that may be marketing rhetoric, but it’s my personal aspiration as a professor. You can see how my graduate school training, and the associated professional experiences it unlocked, transformed my life. I hope to do the same for my students.

The post Reflections on My Experience as a 1992 Summer Associate in Sidley & Austin’s LA Office appeared first on Goldman's Observations.

Molly Brown (now Molly Forstall). According to this 2011 article, she did a federal clerkship and joined Cooley in 1995. According to her LinkedIn profile, she left Cooley in 2005. Her bar license went inactive in 2007. According to the 2011 article, “Molly, after practicing employment law for several years, now enjoys her full-time role as a mother of two.” She co-produced a couple of Broadway plays in the mid-2010s and a documentary in 2020. Her Google search results show active philanthropy, including liberal political causes. Her husband was a key Apple executive, and he has his own page on Getty Images that includes some photos of Molly.

Theodore Chen. According to his LinkedIn profile, Teddy worked at Cooley from 1994 to 1997, then worked in-house at various companies. He’s now Associate General Counsel at Calix. Teddy was my next-door officemate for some of our time together.

Kristin Croft (now Kristin Pedersen). According to her LinkedIn profile, Kristin worked at Cooley from 1994-2004. She left to join another firm. Since 2007, she has practiced at her own firm, Daijogo & Pedersen LLP, in Marin County.

Linda DeMelis. According to her LinkedIn profile, Linda worked at Cooley from 1994 until 1998. She switched to VLG/Heller Ehrman and apparently stopped practicing law in 2008. She most recently worked as an editor at TheCorporateCounsel.net, but it looks like she may have retired. She resigned from the bar in 2018.

Roger D. Edwards. According to his LinkedIn profile, he worked at Cooley until December 1995. His resume after that reflects stints in investment banking, law practice, and management jobs. His current position is listed as “Privacy Evangelist” at BlueOwl.

Adriana Estrada. According to her LinkedIn profile, she did a clerkship after law school and then started at a different law firm for a few years before holding various business positions. She is now VP of Brand Strategy for Stash.

Robert Galvin. He started at Cooley but I can’t tell how long he stayed. He joined Wilmer Hale in 2011 after stints at Day Casebeer and Howrey. He’s not on the Wilmer site any more, and his bar license went inactive at the end of 2021, so he may be taking a break or has retired.

Kirk Hobbs. According to this alumni profile, Kirk worked at Cooley until switching to become an entrepreneur. He is now CEO of ICU Eyewear.

Jeffrey N. Hyman. According to his LinkedIn profile, Jeff worked at Cooley from 1994 until 1997. He switched to another law firm, then went in-house at Intel, Apple, and Pebble before joining Google in Strategic Relations. He now runs his own consultancy/law practice.

Noel C. Johnson. According to his LinkedIn profile, Noel worked at Cooley from 1994 until 1997. He then rotated among law firm and in-house jobs. He now holds the title “Managing Director and Associate General Counsel” at JP Morgan Chase Bank.

Dan S. Johnston. According to his LinkedIn profile, Dan worked at Cooley from 1994 until 1999, then went in-house. He now holds the title of “E.V.P and Chief Legal & Administrative Officer” at Omnicell. Dan was also a next-door officemate for some of our time together.

Tracy S. Kaplan. According to her LinkedIn profile, Tracy worked at Cooley from 1994 until 1998. She went inactive with the bar in 2000. She currently lists her job as “Owner & Managing Principal” at Surgent Leadership, an executive coaching firm.

David D. Kim. David’s LinkedIn profile is sparse, but he’s now in-house counsel at ASML.

Martin J. Lobdell. According to his LinkedIn profile, Martin worked at Cooley from 1994 until 1997. He then went into investment banking, then corporate development, and now lists his position as running a hedge fund.

Clarisa Long. According to her faculty bio, Clarisa worked at a DC law firm and clerked at the Federal Circuit before becoming a full-time professor. She now is a faculty member at Columbia Law School.

Julie Lythcott-Haims. According to her LinkedIn profile, Julie worked at Cooley from 1994 until 1997. She then went in-house at Intel before taking on various administrative roles at Stanford Law School. She has become a best-selling author.

Quang D. Nguyen. I could not find any information about him.

Ricardo Rodriguez. He worked at Cooley until at least 2010. His bar license went inactive in 2019.

Charles M. Schaible. Charles joined Cooley in 1994 and is still there!

Eric Schlachter (now Eric Goldman). I changed my name in 1997 while still at the law firm. I joined Cooley in 1994 and left in 2000. I was Epinions’ General Counsel for two years and became a full-time law professor in 2002.

Mark G. Seneker. According to his LinkedIn profile, Mark worked at Cooley from 1994 until 1999. He then took business roles at Nike. According to this angel investor bio, he retired in 2020.

Sarah R. Wauters. According to her LinkedIn profile, Sarah joined an LA law firm in 1994 and then worked in-house and at her own firm before switching into business roles.

Patrick Walravens. According to his firm bio, Patrick worked at Cooley until he switched to investment banking. He now works as an equity analyst. Little-known fact: there were six UCLA JD/MBA students in the class of 1994, and two of them (Patrick and me) started at Cooley in Fall 1994.

Laurie A. Webb. According to her LinkedIn profile, Laurie worked at Cooley from 1994 until 1998. She then went in-house and is now a VP in Seagate’s legal department.

Michael L. Weiner. According to his LinkedIn profile, he worked at Cooley from 1994 until 2003. He then switched firms and is now a partner at Dorsey & Whitney.

* * *

Some observations:

1) This rundown provides additional evidence that GenXers really did have better career prospects and economic opportunities than millennials. Most of my classmates appear to have been continuously employed for as long as they’ve wanted to work, and many have held positions over their careers that they would have viewed as dream jobs back in 1993.

2) This summer associate class was filled with extremely talented people. I remember feeling a little imposter syndrome when I saw the resumes of my classmates. We now know that many of them were destined for remarkable careers in a wide range of fields, including law, finance, entrepreneurship, management, academia, and more.

3) You can see how many people left the law firm in 1997-1999 (I left shortly thereafter in 2000). The late 1990s was a crazy time, and the law firm had a tough time competing. 28 years later, it appears that only 1 cohort member is still at the law firm; and it appears only a few stayed more than a decade. I wonder if that yield rate is consistent with the law firm’s projections in Fall 1992 when it set this class…?

4) I can’t decide if I’m envious or not of my retired classmates. Obviously retirement is a strong indication that they achieved their life’s wealth objectives, but I also love my job and don’t want to stop doing it!

As I’ve said many times, I didn’t leave the law firm because I was unhappy there (though 1999 was a brutal year workwise). I left because I was more excited about the opportunity at Epinions. I can imagine a scenario where I stayed at the law firm in 2000, made partner, and stuck around until today. However, as much as I enjoyed being a lawyer and working at Cooley, I love my current job even more…even when I remember that I’m earning 10-20% of what I’d be earning as a partner at Cooley.

The post The Story of Cooley Godward’s 1993 Summer Associate Class appeared first on Goldman's Observations.

What explains these extraordinary results? One possibility is that eBay’s legal department had extraordinary talent.

As additional evidence supporting that proposition, consider the impressive legacy of eBay legal department alumni. Over the years, eBay’s in-house legal department has been a major source of future general counsels, especially in the Silicon Valley. The following list, assembled by former eBay lawyers Michelle Fang and Allyson Willoughby, enumerates over 50 former eBay in-house lawyers who became general counsel at one or more other companies:

Frederic Altenbourger // BlaBlaCar
Geoffrey Brigham // Wikimedia Foundation
Thomas Brown // Worldpay
Rob Chesnut // Chegg, Airbnb
Jay Clemens // Lenovo
Foekje Croles // Bloomon
Alyssa Harvey Dawson // Sidewalk Labs, Harman Int’l
Sharda Del Castillo // Affirm
Daniel Dougherty // Monster Inc.
Rebecca Eisenberg // Adbrite, Trulia, Reddit, Vouch
Russ Elmer // ServiceNow, Lending Club
Michelle Fang // Turo
Chris Ferro // Xoom, Flexport
Sandy Godsey // Metawave
Susanne Grohe // Bundesdruckerei [note: she worked for PayPal Germany]
Senay Gurel // Voodoo.io
Mary Huser // Blackberry, Poly
Deepak Jacob // Star India Pvt
Tom Jeon // Backcountry
Katrina Johnson // WiseTech Global
Kelly Kay // Yapstone
Henrik Lejdeborn // Yubico
Brian Levey // Upwork
Brynly Llyr // Ripple, Celo
Robert Mahnke // Uplift, Fundbox, Plastiq
Paul Massey // CrowdCube Ltd.
Alexandre Menais // Atos
Rob Miller // King, Improbable, Deliveroo
Marina Mitrevski // The Iconic
Jay Monahan // ResearchGate, Vuze
Alison Nicoll // Upstart [note: she worked for eBay’s PayPal operation]
Brandon Pace // Lending Club
Christine Poulon // Blispay
Michael Richter // The Fin Exploration Company
Alida Rincon // Yapstone
Marty Roberts // Linden Lab, RPX
Jessica Rossman // Credible
Marc von Samson-Himmelstjerna // Groupon International
Adam Sand // ZL Technologies, SK Planet, Shopkick
Léah Schlesinger // NEXTracker
Lisa Schlesinger // Tipalti
Aiga Senftleben // Billie, Funding Circle Deutschland GmbH
Brad Serwin // Glassdoor
Scott Shipman // Sensity Systems, AppLovin
Daniel Smith // Videology
Susan Stick // Evernote, One King’s Lane [note: she worked for eBay’s Skype operation]
Rob Stienes // Preferred, Radial
Adrienne Sum // Dwolla [note: she worked for eBay’s PayPal operation]
Daniel Tangeman // Urban NC Bricks
Kent Walker // Google
Sivan Whitely // Square
Allyson Willoughby // Method Products, RockYou, Glassdoor, CareZone

Please email any additions or corrections.

The obvious next question is: how did eBay aggregate and develop so much talent? Significant credit surely goes to Michael Jacobson (known affectionately as “Mike J”), eBay’s first General Counsel. He became one of the longest serving General Counsel in Silicon Valley, serving 17 years in the role. He has repeatedly said that he’s proud of how his former staff went on to amazing career opportunities after eBay.

(Thanks to my graduate fellow Brent Weigel for verifying the information in this post).

The post The eBay In-House Legal Department’s Remarkable Legacy of General Counsels appeared first on Goldman's Observations.

In 2014, the Santa Clara University School of Law adopted a first-in-the-nation Privacy Law Certificate for JD students. We have taken steps to make the certificate’s requirements particularly rigorous. Students must take five privacy-related courses, complete an externship/internship in the privacy field, obtain an IAPP certification and publish a paper on privacy law.

Four classes — 21 students in total — have graduated since the certificate was enacted. These students have entered a boom market for privacy professionals, so not surprisingly, certificate alumni have been popular. Here’s a look at some of those employment outcomes.

Market context

The demand for privacy law expertise seems insatiable, especially due to the European Union’s General Data Protection Regulation, which has soaked up a huge amount of professional time. Although (in theory) companies have finished their GDPR compliance, post-GDPR work is still going strong. Evolving U.S. laws and norms have also contributed to the market demand—and if the California Consumer Privacy Act takes effect in its current form, a second GDPR-like boom will follow as companies scramble to comply with it.

Because of these ongoing demands, basically every company and law firm has an open requisition for a professional with 5+ years of privacy law expertise. However, the inventory of professionals with those qualifications is exceedingly bare. This has pushed employer demand in two directions. First, employers have repurposed experienced lawyers without a privacy background; but they may not be passionate about privacy, and there’s a steep learning curve on privacy law. Second, employers have hired candidates with less professional experience but demonstrated commitment to and knowledge about privacy law. This latter option has benefited the Privacy Law Certificate alumni.

Certificate alumni employment outcomes

This table summarizes the employment outcomes for the 21 certificate alumni, including 2 alumni from 2018 who haven’t placed yet.

Implications

Mobility: Of the 11 alumni who graduated from 2015-2017, only two are still at their first job.

JD-advantage jobs are good jobs: Many law school graduates are wary of professional jobs that prefer but don’t require a legal degree (sometimes called “JD-advantage jobs”). However, in the privacy field, many professional jobs are JD-advantage, and many of the field’s leaders, including the chief privacy officers of leading companies, do not have a law degree. Thus, in the privacy field, JD-advantage jobs are often equally attractive as JD-required jobs. Our graduates’ experiences have borne that out.

Switching between JD-advantage and JD-required jobs: Graduates freely switch between JD-advantage and JD-required jobs. In particular, some graduates have obtained JD-required jobs after starting in JD-advantage jobs, demonstrating that starting in a JD-advantage job isn’t a permanent election.

Fast placement: Eight of the ten 2018 graduates had full-time employment within three months of graduation.

In-house upon graduation: A common belief is that law school graduates must work a few years, typically at a law firm, before they can switch to in-house lawyer jobs. This has not been our experience. Twelve out of the 21 graduates, including six of the 10 graduates in 2018, have started at in-house counsel positions (and two others started in JD-advantage jobs in-house). There are a number of good reasons for this, including the general growth of entry-level in-house counsel jobs. However, the primary driver has been that students placed in externships or internships at companies have proven their value to their employers. Our students working part-time during school become too valuable for their employers to let go.

As privacy laws increase in number and complexity, privacy professionals are facing ever-greater challenges. Santa Clara Law’s Privacy Law Certificate was designed to produce alumni with the level of sophistication and expertise required to meet these challenges. We also expect these alumni will emerge as key leaders in the next generation of privacy professionals.

* * *

UPDATE: Shortly after I submitted this article to the IAPP, the two unplaced 2018 grads both got job offers, one in a law firm and the other in a JD-advantage job. So within 4 months of graduation, we had a 100% placement rate for the Class of 2018 Privacy Law Certificate earners. Needless to say, we are immensely proud of all of them.

The post Employment Outcomes for Privacy Law Certificate Earners at Santa Clara Law (Cross-Post) appeared first on Goldman's Observations.

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Back in the good old days, I used to freely reply to such inquiries. I felt like I could–and should–share my expertise in a way that cost me little and potentially provided a lot of help. It was about treating people as I would want to be treated.

The good old days are unfortunately over. Despite helping hundreds of people over the years with minor legal inquiries, I’ve changed my policy. Now, I won’t be able to respond to your inquiry or any follow-up inquiries.

Why the change? As the expression goes, it only takes one bad apple to spoil the barrel. I’ve had two recent situations where people who contacted me–essentially asking for a favor–have turned around and overclaimed that we formed an attorney-client relationship. In one situation, I simply made some referrals to attorneys who might help; in another, I was sent publicly available documents that the sender later (and, IMO, falsely) claimed were part of asking for my legal help with the case. In both, the overclaim of an attorney-client relationship interfered with my activities as a researcher and a blogger, i.e., my ability to do my job. As a bonus, usually the attorney-client overclaim is coupled with threats to notify the state bar or my dean or other folks, or otherwise to ruin my life.

As a result of the rare rotten apples, I have to assume all such inquirers are potential plaintiffs who will thank me by threatening to take my house and destroy my life–even though 99%+ are just well-meaning folks making fair requests of someone who probably could easily help. I’m so sorry to presume the worst when so few inquiries deserve it; it is unfair, and I wish I lived in a different world where trying to be a mensch wasn’t punished.

The post Why I No Longer Respond to Unsolicited Inquiries About Legal Matters appeared first on Goldman's Observations.

Back in the 2000s, I helped organize several gatherings of “Bay Area Blawgers,” an informal group of local bloggers covering legal topics. (Here’s the recap from the last gathering). The participants came from almost all corners of the legal industry: students, academics, small firm practitioners, non-lawyers and more; but one player in the legal industry ecosystem was conspicuously absent: big firm lawyers. At the time, most big law firms were fairly blogging-adverse. Blogging was still new, and large law firms are notoriously late adopters of new technology. Furthermore, many law firms were petrified of the conflicts issues, including the risks of blogging about clients or their adversaries and the risks of having their words quoted against them.

With this background, I note the recent article from the Recorder, “Law Firm Blogs Come of Age.” The article discusses how big law firms have embraced blogging, including lawyers at Orrick, Duane Morris, Shearman & Sterling and Allen Matkins.

I’ve noted this trend in my RSS subscriptions. Most of the law-related RSS subscriptions I’ve added in the last few years are from big firm law firms/lawyers–such as Venable’s All About Advertising, Arnold & Porter’s Seller Beware, Edwards Wildman’s Digilaw, Orrick’s My Distribution Law Blog, Thompson Coburn’s Sweepstakes Law Blog, Seyfarth Shaw’s Trade Secrets, and others.

[Note 1: I follow a lot of blogs, as I explain here. Note 2: I often purge blogs after a while if I don’t find them consistently useful, so I cycle through blogs frequently.]

The Recorder article, and my associated realization, prompts my question to you: has there been any noteworthy legal blog started since 2010 that isn’t attached to a big law firm? I’m sure the answer is yes, but I couldn’t think of it. Email me your suggestions.

I draw three tentative conclusions from all of this. First, legal blogging has become corporatized. This trend was apparent by the end of the last decade, but I think it’s been fully realized. Corporatized legal blogging is still useful blogging, but in general corporate bloggers don’t have as strong a blogging voice as independent legal bloggers.

Second, it’s long been my position that bloggers are born, not made. When blogging first emerged, there was a backlog of born-to-be-bloggers folks who started blogging; but now that we’ve worked through the backlog, the rate of new emerging born-to-be-bloggers per year has dropped to much lower equilibrium levels.

Third, I wonder if we’ve seen the end of large numbers of new independent legal bloggers. Given the slow rate of newly emerging bloggers generally, and the increasing market share of the corporate bloggers–who are well-financed and already have built-in audiences–we’re not likely to see many new blogging “stars” emerge. Some surely will, but the deck is now stacked against the independent legal bloggers. The 2000s were a wild time for legal blogging, and it appears that things have calmed down a lot.

UPDATE: One reader pointed out the emergence of book-related blogs, many of which peter out soon after the book launch. Some blog suggestions of good new entrants since 2010: Thomas Cotter’s relatively new Comparative Patent Remedies blog.

The post Are the Days of Independent Legal Blogging Over? appeared first on Goldman's Observations.

This post provides my perspectives on the pros and cons of practicing law as in-house counsel versus at a law firm. Although my perspective is hardly unique, I am one of the comparatively few people who actually preferred practicing at a large law firm over in-house. When I tell people this, they almost always express surprise. My experiences may be colored by practicing in a start-up environment, with its advantages and disadvantages, and my conclusion may reflect my particular personality idiosyncrasies. Nevertheless, this post will provide my insider’s view on life as in-house counsel.

Advantages of In-House Practice

The Lawyer Can Become a Business Decision-Maker. In-house lawyers take on business responsibility in several ways. First, to the extent the lawyer supervises outside counsel, the lawyer usually handles those vendor relationships. Second, the in-house lawyer often gap-fills any business decisions that aren’t owned by other people within the company. Finally, the in-house lawyer may share in making business decisions with the “business” people. Often, the in-house counsel’s co-workers prize the lawyer’s business input as much as his/her legal analysis.

The Lawyer Becomes Part of the Team. Most outside counsel have a “hired gun” relationship with their clients. The outside counsel is responsible for providing the best service possible, but then that lawyer flips his/her advice “over the wall” and leaves the implementation to someone else. In contrast, in-house counsel often become part of the execution team. Because in-house counsel are part of the team, they can be much more proactive than the outside lawyers. They can raise issues early and see the issues through to resolution.

In-House Counsel’s Interests Better Align with Corporate Objectives. Even with innovations in alternative billing and long-term multi-iteration relationships between companies and firms, usually an outside counsel’s interests do not align very well with the client’s. After all, the law firm has its own profits to manage, and doing so inevitably diverges with the client’s profit maximization. This is endemic to any customer/vendor relationship. Certainly hours-based billing creates numerous potential conflicts of interest between firm and client.

In-house counsel’s economic interests align much more closely with the client’s. There will never be perfect alignment, but the combination of being an employee plus possibly an equity interest makes a huge difference.

As an added bonus, usually in-house counsel don’t keep timesheets and don’t have billable quotas. This is often the #1 advantage cited by new in-house lawyers. However, this isn’t always the case. Some companies use a chargeback method to divisions/departments that requires keeping track of expenses; and companies may view in-house counsel as substitutes for outside counsel, which makes their goal to squeeze as much value out of the in-house counsel as possible.

Greater Ownership of Outcomes. It’s often easier for in-house counsel to point to specific favorable outcomes for the company and claim credit/ownership of those outcomes. A product counsel can point to a new successful product they guided through the development process and feel a sense of responsibility; a litigator achieving a favorable case outcome can have the same feeling.

Easier Prioritization. In-house counsel can often prioritize conflicting time demands easier because, after all, the requests are all coming from the same company and they can be prioritized based on profitability or the company’s strategic objectives. In contrast, outside counsel have a tough time prioritizing conflicting requests. Naturally, every client wants to be #1 but inevitability priority choices must be made, and telling a client that they aren’t #1 isn’t a path towards long-term client happiness.

On the other hand, it can be even harder for in-house counsel to tell a co-worker that they are not at the top of the priority list. So although it may be easier to prioritize tasks, it may be more painful to say no to people you have to work with the next day.

Better Work/Life Balance. The stereotype is that in-house counsel have a better work/life balance. I wonder about this in practice. Sure, in-house counsel can call up outside counsel and dump a project on them on Friday at 5pm while the in-house counsel goes on to enjoy the weekend. However, to the extent that in-house counsel are cost centers and the company is trying to maximize value out of a cost center, inevitably there will be significant pressure placed on the in-house counsel to do more and work harder. In the end, I think this is very specific to the company and the legal department. Some employers are going to provide better work/life balance than others.

Cons of In-House Counsel

You’re Answerable to a Boss. Some of you may find this an odd “con.” Doesn’t everyone have a boss? The answer, of course, is yes unless you’re self-employed. Even a CEO is answerable to the board or investors.

However, at some law firms, the supervisor/supervisee relationship can be quite attenuated. In firms with a power-partner model, the associate’s power partner is the boss; but at firms with a free-agency model for assigning new projects, it’s possible that no one partner views him/herself “responsible” for an associate. As it turns out, that was the situation I had when I was at the law firm. Although I had partners who nominally were accountable for my time, in practice I had a significant degree of autonomy. Partners have even more independence.

In-house, the lawyer will have a boss in the classic sense. The boss will conduct your performance evaluations, and your success will depend on doing what the boss wants you to do and keeping your boss happy. If the boss isn’t a lawyer but second-guesses your legal advice, that can get especially awkward.

Because bosses can change—they can leave the company or the position can be reorganized (a fairly common occurrence)—the job can change unexpectedly. Even if you love your current boss, your next boss may be a jerk. With a change in supervisors, a good job can become a terrible job overnight. There is almost nothing in-house counsel can do to avoid this risk.

Furthermore, job advancement in-house often requires a boss who will champion for your cause. Sadly, many bosses are not very good at being advocates for their supervisees, in which case in-house lawyers can get stuck in their career progression.

You’re Expected to Know the Answers. In-house, your clients expect you to know the law cold. Occasionally it’s acceptable to request some research time, but most of the time it’s not. In some cases, your clients will think you’re an idiot if you don’t know the answer off the top of your head. In particular, in-house can be a difficult place for newly graduated JDs because usually there’s no training.

Lawyers who start in-house face the added problem that the business clients don’t prize legal accuracy as much as they prize good business counseling. If anything, clients hate legally accurate answers that conflict with their business objectives. As a result, lawyers who start in-house, over time, often become more skilled at business counseling than legal counseling; they don’t necessarily know all of the relevant legal doctrine, and the clients don’t value that extra legal expertise. But in-house counsel are socialized to give clients what they want, which is that they want “yes,” not “no.” As a result, in-house counsel are constantly under pressure to distort their legal analysis to support a business conclusion of “yes.”

Finally, because in-house counsel often are viewed as more skilled at business counseling than legal analysis, their clients sometimes value outside counsel’s advice more than in-house counsel’s. (This is true with outside consultants as well, who often are hired to say exactly what someone internally has already said).

In-House Counsel as a Cost Center. As mentioned above, often employers hire in-house counsel to reduce expenditures on outside counsel. This means employers try to maximize the return from each in-house counsel and reduce in-house counsel’s ability to pay for outside counsel. In-house counsel are obvious targets in any layoff, and they are often expendable after an acquisition.

In-House Counsel as Too Generalist and Too Specialist. In terms of future employment opportunities, in-house counsel can end up in a weird squeeze. On the one hand, in-house counsel often are generalists. They handle any legal matters that appear on their desk, especially in companies where the legal department is small. Further, in-house counsel often are expected to keep up with a wide-ranging set of practice areas, making them the master of none. At the same time, in-house counsel can become incredibly specialized; they focus on the legal issues posed by a single company in a single industry, and thus they may lack the practice diversity across industries and competitors that outside counsel can develop.

Thin Infrastructure. Often, in-house legal departments provide light resources for attorneys. For example, secretarial staff may be spread thin or non-existent. The company may not subscribe to helpful publications or databases.

Consequences of Internal Conflicts. Inevitably, your clients will want to skirt the law, even if the company is fundamentally trying to be ethical. There are too many laws, too many stupid laws, too many laws that impose unreasonable compliance costs, and too many grey areas. In-house counsel have few good choices in these circumstances, especially if the lawyer advised the client on one course of action and the client rejected the advice. If the lawyer feels like he/she needs to “withdraw” from the representation because of the client’s now-possibly-shady behavior or because of the implicit vote of no confidence due to the client ignoring the lawyer’s advice, the lawyer’s options are limited. The lawyer can simply walk away from the job, immediately cutting off the salary (and foregoing any equity upside) and burning bridges with the remaining co-workers; or the lawyer can slowly try to find alternative employment, a time-consuming and costly transition. A standard “best practice” for law firms is to not become too dependent on any single client because it will create pressures to do unethical things. In-house counsel, by the very nature of the position, violate that best practice.

For more thoughts, see The Conglomerate.

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Another entry in the ever-popular series of litigants foiled by social media evidence. Sara Jaszczyszyn (an even more impressive name than Balasubramani…is this her?) took FMLA leave from work due to back pain. This FMLA leave was intermittent, allowing her to be out only on days when she had a flare-up, but the court says “Jaszczyszyn appears to have treated the leave as continuous, open-ended, and effective immediately.” For a while, company employees tried to accommodate her ongoing absences, but apparently the mood soured after “Jaszczyszyn attended Pulaski Days, a local Polish heritage festival. Over a period of at least eight hours, she visited three Polish Halls with a group of her friends. One friend shared approximately 127 pictures from that day with Jaszczyszyn, who posted, on her Facebook page, 9 pictures featuring herself.” During that same weekend, Jaszczyszyn left another voicemail with her supervisor indicating she was in pain and couldn’t come to work on Monday.

Her managers summoned Jaszczyszyn into the office and confronted her with the photos. The court recounts what happened next:

Jaszczyszyn did not agree with their characterization of the pictures, but she did not voice that disagreement at the meeting. She defended attending the festival by arguing that no one had told her it was prohibited. When asked to explain the discrepancy between her claim of complete incapacitation and her activity in the photos, she did not have a response and was often silent, occasionally saying that she was in pain at the festival and just was not showing it.

Apparently not good enough. The employer terminated Jaszczyszyn. Jaszczyszyn responded with a lawsuit claiming FMLA violations. The Sixth Circuit (how in the world did this case get to the Sixth Circuit???) affirmed the legitimacy of the firing.

The subsequent news is mixed for Jaszczyszyn. In a seemingly gratuitous footnote, the court recaps the good–and miraculous?–news that “Jaszczyszyn appears to have made a full recovery very shortly after she was terminated,” but also the bad news that she was subsequently fired from her next job for excessive absenteeism. Oh, those millennials!

Other posts in the series:

* Plaintiff’s Claims to Be “Bedridden” and “Vegetative” Rebutted by Facebook Evidence–Cajamarca v. Regal Entertainment

* Facebook Jokes About “Naked Twister” Could Undermine Sex Discrimination Claim–Targonski v. Oak Ridge

* Protip: Kegstands and Vertigo Are Inconsistent With Each Other–Johnson v. Ingalls

* Facebook Boasts/Taunts Undermine the Legal Defense for a Fight at a House Party–In re DLW

* Social Media Photos Foil Yet Another Litigant–Clement v. Johnson’s Warehouse

* YouTube Video Impeaches Witness’ Credibility–Ensign Yacht v. Arrigoni

* Facebook Entries Negate Car Crash Victims’ Physical Injury Claims

* Contrary MySpace Evidence Strikes a Litigant Again–HAC, Inc. v. Box

* MySpace Postings Foil Another Litigant–Sedie v. U.S.

* Disturbingly Humorous MySpace Posts Used as Impeaching Evidence in Spousal Abuse Case–Embry v. State

* Latest Example of Social Networking Site Evidence Contradicting In-Court Testimony–People v. Franco

The post Disability Leave Foiled By Facebook Photos–Jaszczyszyn v. Advantage Health appeared first on Goldman's Observations.