Redline Presents

If you were like many of us, your most significant memory of law firm associate years is the amount of time spent in the office, billing hours. What was it like as an associate at the firms you worked for?
 

Yes, I remember the long hours, but that’s not to say I don’t have long hours today as well. Looking back, though, I also appreciate the training I received as an associate in “big law.” I learned the fundamental skills of being a lawyer: embracing difficult questions and developing complex answers. I developed research and writing skills that serve me to this day. Those long hours also led to close friendships and mentors. It is a great joy to work side by side with people you respect and trust. Today, I still prioritize those kinds of relationships.
 

How did you become an advertising lawyer?
 

I had an intellectual property prosecution background and was seeking a more varied practice. A headhunter sent me to an advertising law position. I had never heard of the field. Nonetheless, after a several hour interview, I accepted the firm’s job offer on the spot without even knowing my salary. I was hooked. Fast forward thirty years later, I’m still an advertising and branding lawyer. The field is multidisciplinary, requiring a broad understanding of marketing, media, intellectual property, and technology. It’s also a deeply pragmatic field, balancing legal risk with business returns. With 50 states’ laws, there is always something new going on. It's exciting to work with creative clients in an ever-changing marketplace.
 

So what brought you out on your own as a solo practitioner?
 

I spent most of my “big law” years at Hall Dickler Lawler Kent & Friedman, a leading firm in advertising law. Because the department was relatively small, I had direct client contact. I learned what a privilege it is to represent a client and develop trust. Over time, however, I wanted more freedom to take on different kinds of clients. I also wanted to re-imagine my law practice to focus more on service and less on billable hours. In 1993, after my first child was born, I seized the opportunity to make a change, and I struck out on my own.
 

Were you ever seriously stressed out as a solo? How did you get through anxiety of being out on your own, especially at the beginning?
 

I actually never really had any anxiety. Right away, I enjoyed being an entrepreneur. I taught myself the business of law and felt a great sense of satisfaction with every new engagement. To overcome the need for collaborators and colleagues, I turned to networking. It sounds obvious now, but in the early ‘90s, networking groups were not as omnipresent as they are now, and certainly not, female networking. I was fortunate to find a terrific group of women, some of whom are still colleagues. And while other lawyers perhaps did not fully understand how this “solo practice” would work out, clients loved it. I was an early adopter of alternate fee arrangements, and my clients appreciated the close personal attention and expertise I provided. That’s still the case today.
 

We’ve all been led to believe that specialization is the key to a successful career. Did your practice area contribute to your success?

Absolutely. I think it would have been much more difficult for me to open a solo practice as a general litigator or business lawyer. My niche in advertising and marketing law distinguished me. It’s also a national practice, and I found clients needing my services all over the country.
 

What kinds of projects are typically on your desk?
 

I help my clients launch their products and services. I work with clients from the concept stage through execution, reviewing their advertising copy and claim substantiation. I also help them implement specific marketing techniques that generate revenues. These campaigns include: sweepstakes and contests, loyalty programs, social media, influencer marketing, online reputation management, auto-renewal programs, user-generated content, green advertising, native advertising, app development, cause marketing, and text/email marketing. As my clients' brands grow in the marketplace, I help protect their intellectual property and monetize their portfolios through effective licensing programs in a global marketplace. My transactional practice focuses on creating fair, clearly written contracts that protect my clients' interests. In particular, I leverage lessons from my dispute resolution practice to anticipate points of dispute and to assist in dispute advisory work.
 

What made you decide to become an arbitrator and a mediator? Where do you serve?
 

I studied alternate dispute resolution in law school. As a young lawyer, I saw how expensive and protracted litigation can be. As an advocate, I was frustrated by the motion practice and protracted discovery. I wanted to be part of a more efficient model for resolving disputes. I also sincerely believe in empowering the parties to a dispute by letting them craft their own processes. In 1994, I became an arbitrator for the American Arbitration Association and in the last year I also joined the AAA’s mediation panel. I also sit on the panels for the World Intellectual Property Organization and New York City’s Office of Administrative Trials and Hearings. During the pandemic, I started volunteering as a mediator in the overtaxed court system. I currently serve as a Special Master for New York State’s 2d Department Appellate Division.
 

How have you found the experience?
 

My dispute resolution practice is completely rewarding. Every commercial case is different. The parties come from a range of industries: advertising, arts, consumer products, communications, entertainment, publishing, sports, even real estate. I use an active case management style in arbitration and really dig in to each case to provide a fair, unbiased, and efficient resolution for the parties. As a mediator, I use a transformative and facilitative approach to mediation that helps the parties and their attorneys understand better and resolve their disputes. When requested by the parties, I also employ evaluative techniques. I do not give up on the parties. My job is to uncloak their own abilities to remove obstacles and discover opportunities for resolution or increased clarity around their interests.
 

What’s hot in your solo practice now, and how do you see those trends continuing?
 

As the Covid-19 pandemic continues to affect businesses, I see significant trends. Digital spending and e-commerce are on the rise. Ad tech is riding high, as meaningful data is crucial to these efforts. Brands are engaged in storytelling and worldbuilding, creating immersive experiences for their customers. I have clients engaged with live streaming, virtual avatars, and social and experiential marketing. At the same time, cause marketing is trending, with brands exploring and publicizing their core values. These initiatives all are meant to combat market segmentation and improve customer retention and loyalty. I see client loyalty programs and other marketing campaigns adding in gamification, charitable initiatives, and influencer opportunities. In all cases, I work with clients to identify and mitigate the legal risks, while propelling the client forward through a difficult economy. In my dispute resolution practice, I am seeing more entrenchment since the pandemic started. That makes my dispute resolution practice more challenging, but even more rewarding.
 

What pro bono projects are you involved with?
 

I prioritize using my legal skills to assist some of the most vulnerable individuals in my community. At the Pace Law Women's Justice Center's Walk-In Clinic, I have provided critical legal services to victims of domestic violence, sexual assault, and elder abuse. Certainly, during the pandemic, with victims trapped in their homes with their abusers, these services have become even more essential. In my arbitration practice, I make time to hear consumer and pro se cases. As I mentioned, I am also a volunteer mediator in the courts. I also leverage my advertising law and dispute resolution background to contribute to my community. I serve on the Westchester County Fair Campaign Practices Committee, hearing complaints about local political campaigns. I also sit on the Ethics Board for the Town of New Castle where I live.
 

You sound busy. What do you do to stay healthy?
 

Yoga, pilates and gyrotonic, and walks in the woods. I also study somatic movements like the Alexander and Feldenkrais Techniques that allow me to turn inwards and be still in my body. During the Covid-19 pandemic, somatics have been particularly important for me.
 

Do you listen to music when you are engrossed in focused work? If so, what kind of music do you often play in this situation?
 

My problem here is that I’m a musician and tend to listen to music as an all-encompassing activity. Listening to music while I’m working can sometimes be distracted. I tend to fall back on classical music. During the pandemic, it’s been a lot of Bach. If I listen to a vocalist, it has to be an artist I know well. Ella Fitzgerald or Esperanza Spalding works well. So does Billy Joel, Carole King, or James Taylor. (You can tell when I came of age by my music library.) I also am an avid Broadway fan, but when working, I need a soundtrack with excellent orchestrations. If I have a particularly challenging drafting issue in front of me, though, I need silence.
 

If money and time were of no concern, what would you do for the rest of your life?
 

I would travel and learn another foreign language. Travel exposes me to my roots, as an individual and member of society. When I see all that people have accomplished in history, both good and bad, I am always motivated to meet my potential. I also love meeting people and understanding their lives. It puts mine in perspective and keeps me grounded. When I speak in another language, I literally feel my brain working. That has to be healthy. Of course, I would do all this exploration with my husband and my four children because traveling with a loved one is the greatest joy.
 

If you were a book, you would be….
 

A well-written “guilty pleasure” read. By guilty pleasure, I don’t mean junk reading. Instead, I am referring to a book that is just a pleasure to read. When I read a book that is beautifully crafted and a page-turner, that’s when I learn the most about the world and myself.
 

Windows, Mac, or other? Do you have any experience or opinion in comparing the platforms?
 

I’m pure Mac. I’ve always loved their products’ ease of use and design. Whenever I’m in a setting that requires me to work on Windows, I’m just never as comfortable.
 

What advice would you give to a relative considering law school?
 

I know many lawyers reply simply, “Don’t go.” I’ve never felt that way. I love being a lawyer. A J.D. is a versatile degree that allows you to attach your passions to meaningful contributions to society. We need that more than ever. Law school is expensive though, so that’s a factor to consider.

You’ve clearly been inspired by the law from the very beginning, as apparent from your student days at Berkeley Law. You knew right away that a career in law was for you, and you went after it with gusto. What excited you most about the law at that time, and how has your enthusiasm for the law evolved?

I went to law school 30 years ago with no intention of being a lawyer. I was a political science major, and I think going to law school might actually be required. But to my surprise I fell in love with it. Thirty years later, I still love the intellectual challenge, and I appreciate the ways law can make the world a better place.

On a daily basis, lawyers around the world write and produce terabytes worth of legal content, in blogs, journal articles, YouTube videos, tweets, LinkedIn, etc.—the vast majority of which has zero influence over the law itself.

For you, as the one of the five most-cited legal scholars of all time, influencing the law is rather routine. And not just via your writings, but in the crucible of the courtroom and in Congress: you have litigated more than 100 cases (including at the California Supreme Court), 26 times in the federal appeals courts, dozens of US Supreme Court appearances as counsel or amici, and seven congressional appearances, all in more than 25 years as a lawyer.

Can you share some of the more meaningful or impactful ways you believe your scholarship, and/or your trial advocacy, has influenced the law? And, how do you decide what causes to take on, which projects to support?

I definitely think that having an active practice influences my scholarship, making it more practical and hopefully therefore more likely to influence courts.

Some of my academic work is directly designed to try to make the law better – filing amicus briefs, but also writing on problems I see with particular doctrines. But some of the most interesting articles don’t start out that way. They start out as efforts to understand a doctrine or a problem that seems to have everyone perplexed.

If you could create a clone of yourself, doubling the effective amount of time you have for whatever you like, what would you do differently or more of, and in the law or out?

Boy do I want a clone. I think I wouldn’t allocate my time any differently (though if I could send my clone to all the meetings in my stead I’d be OK with that). I want to write more, teach more, practice more, travel more, and play more. I’m happy with the balance in my life; I just wish I had more hours to do everything in it.

You literally built a law machine and sold it to Lexis. Lex Machina, Inc. currently employs about 50 people in Menlo Park, providing litigation data and analytics to law firms and legislators alike. It’s been described as “moneyball meets patent lawsuits”. What was the inspiration for or genesis of Lex Machina? Any advice for us other lawyer-startup founders out there?

Lex Machina started in 2006 as an academic project designed to help me answer questions that people were debating without evidence (like how many patent troll suits are out there). We quickly learned a couple of things: (1) there was so much data out there that we needed to automate the process, (2) that automating analysis of cases put us at the forefront of hard problems in AI and machine learning, and (3) that people would pay for the results. So we spun this out as a private company in 2010 and it was bought by Lexis in 2015.

My advice to startup founders in the legal space is: go for it. Law is ripe for disruption. It is one of the last areas of business where people tend to do everything by hand and where inefficiency is not only tolerated but affirmatively rewarded. There are a number of new companies trying to change that.

Your focus in particular has been the intersection of IP and antitrust. With tech giants like Google and Facebook facing increasing competition law scrutiny in Europe, will we see renewed antitrust enforcement scrutiny here in the US as well? What do you see as the more pressing legal issues or topics emerging in this area?

Antitrust has tended to ebb and flow with the change in administrations. One interesting thing about the Trump administration is that it might break that pattern. So far the Trump administration has been very active for a Republican administration. And I think there is a growing movement that wants to expand antitrust beyond the economic consensus that has held for 50 years, targeting large technology companies with enduring market power even if they don’t seem to be doing any thing illegal under traditional law. We’ll see if that movement has legs, but I think it may indicate a shift in how people react to the growth in corporate concentration in the modern economy.

Whom would you point to as a lawyer you came across in your travels who had the most influence on you, or who was the most helpful to you?

Pam Samuelson at Berkeley was both an inspiration for me as a scholar and someone who was incredibly generous with her time when I was a junior scholar. I’ve tried to pay that generosity forward.

You published a fascinating article, along with Paul R. Gugliuzza, entitled, Can a Court Change the Law by Saying Nothing? (Vanderbilt L. Rev. 2017). Using the data-driven methodology you helped to pioneer at Lex Machina, the article reveals that the Federal Circuit’s true stance on patent validity post-Alice is obscured by the fact that in all cases affirming patent validity, the court issued a written opinion. This might lead one to conclude that the court is hewing to its (rightly or wrongly) perceived pro-patent stance. And yet, summary affirmations of invalidity rulings account for a far greater percentage of dispositions. As such, very few patents actually survive.

“Whether in patent law or in other fields, understanding the operation of law in practice requires looking beyond written opinions to see what the courts are saying when they say nothing.”

Indeed. What else does data-modeling and analytics tells us about our legal system? What surprises have you uncovered?

Perhaps the most interesting has to do with the political fights over the patent system. In a paper called “The Surprising Resilience of the Patent System,” I found that despite 40 years of swings in both directions in patent law, the basic metrics of the patent system have remained unchanged. Patent applications filed, patents issued, lawsuits filed, licensing transactions, and even outcomes don’t seem to map to “stronger” or “weaker” legal systems. Lawyers care a lot about changes in legal doctrine, but the patent system just seems to keep chugging along.

Mac or Windows?

Originally Mac starting in 1984, but PC since 1995. I feel vaguely guilty about this, but I’m a gamer, and you can’t be a serious gamer on a Mac.

What has been your most glorious moment in your professional career?

One serious and one not:

Serious: having Justice Breyer and Carter Phillips debate what position I would take on a case during a Supreme Court argument.

Not: I am responsible for there being a Klingon word for “lawyer.” While speaking on the Law of Star Trek at the Escape Velocity con, they arranged for Klingons to come arrest those of us dressed in Federation uniforms. We wanted to have our Miranda rights read to us in Klingon, but there was no Klingon word for lawyer. Fortunately, the inventor of the Klingon language, Marc Okrand, was in the audience, so he invented one.

As a lecturer of law, what do you enjoy most? How would you describe your teaching style: more towards the loose and informal, or more towards the Socratic method?

Definitely informal. I think classes work best when they are a conversation.

One of the courses you teach at Stanford Law is Video Game Law. The course addresses legal issues presented by virtual reality. What issues would those be, and BTW, how do we know we’re not already living in a simulated environment right now?

I’m increasingly convinced we are living in a computer simulation gone awry and will be shut down at any moment so a grad student can write up her thesis on what went wrong.

In the mean time, VR presents a number of legal issues. A lot of them stem from the fact that VR feels real in a visceral way. The law treats physical proximity differently than remote communication, treating the latter as less dangerous and therefore regulating it less. But when someone attacks you in VR, you experience it as if it were happening. Eugene Volokh and I talk more about these issues here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2933867

What was your favorite role-playing game (RPG) when you first fell in love with RPGs, and what is your favorite RPG now?

I grew up playing Dungeons and Dragons when it was just being developed, so we had to make up a lot of the dungeons and odds tables ourselves. It’s remarkable to see both what has changed and how many of the concepts are enduring. Games like God of War and Horizon: Zero Dawn are visually stunning, but they are also remarkable stories.

What's your take on the patent system? What reforms, if any, do you support?

I think patents are important for the innovation ecosystem. But too often patent lawyers assume that if some patent protection is good, more protection must be better. We’ve seen the system get clogged up with unproductive litigation by patent trolls, and that’s gotten in the way of what the system is supposed to do: drive not just innovation but technology transfer. I think the corrections we’ve seen in the last decade have helped quite a bit to bring the system back on track.

What's your favorite lawyer movie or book? Favorite scene from a lawyer movie?

My Cousin Vinny.

How long, do you think, before we’re replaced by AI?

I don’t think AI will replace lawyers per se. It will automate a lot of the things lawyers now do by hand, like writing simple wills, contracts, and incorporation documents. That will make lawyers more efficient, but it will also expand the potential market for legal services. Most people would never dream of hiring a lawyer. But if you could get a straightforward will for $50, that might change.

What books are you reading/games you are playing now?

Playing Shadow of the Tomb Raider, and reading NK Jemesin’s Broken Earth series.

What do you like best about your private law practice? What do you like least?

One day a week is the perfect amount of time to practice law: I get to do the interesting parts but not the annoying parts. I like the intellectual engagement of reading a well-crafted argument and figuring out how to take it apart. When we’re engaged in substantive argument, law practice is fun. When it becomes about beating chests and showing off, it’s less fun.

What advice would you give to a young relative considering law school?

Law school and law practice are great. But I wouldn’t advise anyone to go to law school just because they don’t know what they want to do with their lives. It worked for me, but that was a happy accident. More often it leads to people who drift into legal practice without any real interest in it.

What is about open source licensing that intrigues you as a lawyer and a technologist?
 
I love puzzles.  I first became interested in open source licensing because it was the opposite of everything I had learned about licensing.  Helping clients in this area sometimes requires some serious mental gymnastics, and solving problems is what I love most about my job.  But over time, I have also seen first-hand how powerful the open source development and licensing model can be, and I am impressed every day by how well it works.

You were a software engineer prior to being a lawyer. What sort of projects did you work on as an engineer?
 
I was a programmer in the 1980s, so I wrote a lot of business and accounting applications -- in BASIC and C, no less.  And occasionally I did something more unusual, like programming a test answer reader and a drum machine controller, and writing a compiler.  Also, when I was a programmer, I did user support one day a week.  (That was before customer support was a separate job, so all the programmers rotated on helpdesk.)  I actually liked it, because you never knew what kind of problem you would be solving that day.

What made you decide to switch careers and become a lawyer?
 
My coding work was all before object oriented languages became popular or the Web existed -- and it was long and difficult work to program procedural applications.  So I “pivoted” and became a professional musician for a while, then went to law school.  If I had stuck to coding for another five or ten years, perhaps I would have been one of my clients instead of me.

What's your favorite maxim of jurisprudence/contractual interpretation?
 
"The law disregards trifles."  But I highly recommend reading all of the maxims: California Civil Code. Part 4. Maxims Of Jurisprudence, 3509-3548.
 
What books are you reading now?
 
I am an avid reader, but I listen to audiobooks more than I read conventionally.  (To be clear, listening to audiobooks counts as “reading.”) The last excellent books I read were The Girl in Green and The Ghost Bride.  My favorite book is Return of the Native, and my favorite book of this decade is The Goldfinch.

What's your take on the patent system? What reforms, if any, do you support?
 
I take some prescription drugs, and they are generics, and they cost me about $90 a year even though they were developed at enormous expense, over 20 years ago.  So I like the patent system just fine in general.  As to the details, I know from experience that any comment on software patents just leads to hate mail, so I won’t comment.

How long do you think before we are all replaced by AI?
 
After I retire.  For some kinds of work, we should be replaced by AI as soon as possible.
 
Most big company buyers of technology continue to insist on robust indemnification for patents. Have you noticed any trends in this area? Are technology vendors successful in pushing back here?
 
Indemnities are not about right or wrong, or fairness, they are about bargaining power.  But often they are a bit illusory.  Vendors are usually in the path of liability whether they agree to indemnities or not.  But I do often wonder why big companies think it is a victory to get a $100 million dollar indemnity from a $20 million dollar company.

What's the most glorious professional moment you've ever experienced as a lawyer?
 
When opposing counsel said, “It was a pleasure working with you.  How soon after we sign the contract can you do work for us?”
 
Many (if not most) in-house legal staff at technology companies have an allergic reaction to any open source code licensed under GPL or LGPL, at least with respect to code that's intended to be used or integrated with company-developed proprietary solutions. Are the concerns about GPL/LGPL's copyleft reach justified?
 
GPL and LGPL are ubiquitous in the technology landscape now, and categorical refusal to use code under those licenses is now very rare.  In fact, code under those licenses can almost always be used in a way consistent with a reasonable business model, so long as you follow the requirements of the license.  There are still some licenses that are “blacklisted” for corporate use, but most often those are non-standard open source licenses, or “network” copyleft licenses like Affero GPL.  
 
What's your favorite lawyer movie or book?
 
Anatomy of a Murder is probably my favorite law movie.  It should be required viewing for every law student.  I like to shamelessly misquote from it, “I’m just a humble country IP lawyer, but….”

Do you listen to music when you are engrossed in focused work? If so, what kind of music do you often play in this situation?
 
No, I can’t use music as “background” because I get too interested in listening to it.  That’s probably because I am a musician, so I listen to music in a more analytical way than most listeners.
 
When you have friends or family come into San Francisco for the first time, what sites or spots are you likely to recommend they check out?
 
I like the architectural walking tour.    I refuse to go to Fisherman’s Wharf.

What pro bono projects are you involved with?
 
I do a lot of pro bono work.  It ranges from open source foundations to small business people who need a hand and can’t afford counsel.  I have worked for years with Legal Services for Entrepreneurs, which matches micro-businesses with business lawyers.  I have done agreements for gardeners, party planners, and janitorial services, and it has always been a great experience.

What advice would you give to a nephew, niece or other relative considering law school?
 
Get a summer job as a paralegal or legal secretary first, so you can tell whether you will like being a lawyer.