When I first started teaching as a law professor, I accepted an adjunct role with my alma matter, University of San Diego School of Law. I was asked to teach the intellectual property “survey” course for a full semester while the full time professor took her sabbatical.
Throughout the year, I got to know the students well, and found that they were not only eager to learn, but were also keen to learn more about what they might do with their lives, At the end of the semester, I reflected on my students predicament. I realized that much of what we do in law school is teach students to think like attorneys. We don’t teach many actual skills, and we don’t teach them the skills of life itself, which have very little to do with law, and everything to do with character.
What I wrote as my final lecture is probably applicable to many students as well as those entering the workforce. But, my focus is on law students, and for purposes of this lecture, law students who want to become intellectual property attorneys.
I hope that law students and young attorneys alike find this “lecture” helpful as they process the many decisions that will impact their future.
I have enjoyed teaching law as a first year professor. I would like to thank you all as my first class. You have been wonderful. You’ve attended and engaged in 28 classes, covering all aspects of intellectual property law. It could have been really boring, but for your ongoing participation and discussion. Some of you may not know it but, this was my first time teaching law school. It is an honor to have taught you as my first class. I never thought I would be standing here in front, teaching the same class in the same room that I was in 15 years ago.
I am impressed with you, my students. I am also excited about the fact that so many non-science majors are seeing intellectual property as their field of law. I believe that the future of the American economy will be increasingly IP related, and much of that intellectual property will be “soft” or “non-scientific.” Even the technical aspects of the new economy will be more software based that ever before, and less of high tech will be in hardware. Less emphasis will be on new pharmaceuticals, as fewer and fewer independent drugs are developed, and more combination therapies come into play. In this new economy, the economy is intellectual property. I have great hope for the future of IP law students because I have a truly expect that the future of the American economy will be driven by IP. An IP based economy means that business will be focused on creativity. Lawyers in the new IP economy will need to be creative as well. This is going to be a challenge for the lawyers. You will have to do more than just learn what you are learning in classes like this one. You have to prepare to become a lawyer for a new economy that is driven on creativity.
Author Daniel Pink argues that the future will be ruled by right brained thinkers. How can we prepare IP lawyers for this new world? I’m not sure that educators, law schools or universities are preparing you for this new world. You have probably been successful in your academic work so far because you have been left brained and analytical in an academic world that encourages and rewards this type of accomplishments. But, despite this, you are a lot more creative than I would have guessed. You are an encouragement to me. I have some hope as I see you, the future members, and influencers, of the right-brained economy that is taking over America. You should be encouraged too.
When I was first asked to teach one semester of IP Survey, I was given a great idea by the professor who was taking sabbatical. She told me that, in order to get to know the students, she passes out 3×5 cards, and asks students to say something about themselves. I thought it was genius. I didn’t realize this, but in her lecture slides, she actually asks the students to fill out specific information, undergrad major, home town, etc. I suppose that this pre-defined group of information would help the professor get a better idea of the class makeup. But, I had not yet seen that slide, so I took her advice literally. I simply passed out the 3×5 cards and said, “please put your name and something about yourself.” It turned into a happy, but accidental, experiment. Here are the results of the 3×5 challenge.
One student said that she owned a winery, but did not like wine. Another simply said, “I like pomegranates.” One student owned a gelato shop, and noted that she took knitting as a college course. One told me where he surfed. Another said, “My mortgage has a choke hold on my life!” Two females exclaimed that they loved sports and one said “If I could get paid to watch ESPN all day I would.” A male student said that he was once punched by a famous football player. One student said she wanted to practice law as a connection to the arts. Another said, “My favorite saint is St. Michael.” A female student pointed out that she could play almost any song with only her hands as the musical instrument. One student liked “reef-keeping” and three liked to cook in their spare time. Relatively few students put their undergraduate degree, where they went to school or their hometown. The ones that did were mostly the handful of technical undergrads who were destined for traditional patent law. The remaining responses were largely creative and personal, rather than rigid or formal. One interesting 3×5 card had the student’s name, and simply “technically inclined.” The same student was also the only one to write his name the wrong direction on the seating chart. Maybe not so technically inclined!
You are being creative, even in a situation where the easiest answers would have been: Name; Undergrad Degree/Institution; Hometown; Year in Law School, etc. The act of just putting “I like pomegranates” is a creative response and give me hope that even tomorrow’s lawyers will be part of the rise of the creative culture.
I’ve taught 28 classes to you. But, this, you can consider to be my first lecture.
As most of you know I’m an adjunct professor, not a full timer. I have a day job out there in the real world. I’m a partner in a law firm that I helped to create. I hope that I have brought you some additional depth in this course because of my experience. Because I’m from “out there” I’d like to take an opportunity to bring you some news from “Out There.” I have a bit of good news and a bit of bad news. The bad news is that you are going into law practice during the greatest economic melt-down since the Great Depression has occurred while you are law students. The job prospects are dim. You are realizing that finishing law school may not be the light at the end of the tunnel. Fear is paralyzing for many of you. You, I’m sorry to say, look like deer in the headlights.
You hoped to get a fat salary and go buy a nice car and stop eating Top Ramen for dinner after you graduate from law school. You are now feeling like you’d better be stocking up on that Top Ramen and conserving on your beer supply. You are in for a rocky road ahead. You are scared.
Your fear is driven by a realization that things are not what you planned them to be. It’s a fear of surprise. A fear of something being outside of your expectations. You thought it would mean high paying jobs, but its probably not going to work out that way. It sucks. I’m sorry. I wish I could tell you all that those $150K/yr jobs are abundant. But I won’t. I can’t. They aren’t. But, to deal with your fears, you have to face them. Be honest. Let the truth sink in. Cry. Deal with it. Get over it. Now, lets talk about why it’s all going to be okay. Let me deliver the good news.
The good news is that the old systems are crumbling down. This has wiped out the high paying jobs that you hoped to get. But, what it has left is a new world of massive opportunity. A new frontier is what you are going to find “out there.” It’s the Wild West all over again, and there’s land and opportunity up for grabs. Opportunity is there for anyone willing to take it. The biggest opportunities are those related to intellectual property. For the foreseeable future, maybe for our lifetimes, the economy will be driven by intellectual property.
This new world of opportunity, this Wild West of intellectual property is waiting for really smart, really creative people.
You are smart. You are creative. You are capable. You are brilliant. You will do more than merely participate in the new IP economy, you will help define it. You need a bucket of cold water, to wake up to this reality and seize it, rather than standing in a stupor of fear as you realize that no one is going to give it to you the easy way. Our fathers’ way of business is gone. There are no more big companies or big firms who let you work for 30 years and retire with a gold watch and a fat pension. Your future is in YOUR hands. Its YOUR future, and its YOUR responsibility. That’s the burden. But, its also your future to create, you will define the new world. That’s the good news.
Having myself been part of the first generation of people to go to work in this new IP world, I can say that I’d rather have it this way. But, its not as easy as getting a good education and then walking into a well paying job. For us, there is an unsettled frontier, and we are pioneers, you included. I am only a little bit ahead of you. We don’t get to be comfortable farmers on pre-settled land. We are charged with the task of settling the new territory first, and in this wild new landscape, there is a lot of adventure and a lot of fun and a lot of hard work. I’m going to encourage you to take on the pioneer spirit, and join with me in forging new roads, new cities, new economies, new organizations, and new laws as we go into this new world together. Our new world is a new economic landscape, driven largely by IP, ruled by right-brained thinkers. It’s a wild west of opportunity, far greater than the original frontier. I’ve had the privilege to be in it for a decade, but its only just beginning. The future is truly amazing, and you as future IP lawyers are in the right spot. You do have a problem: it won’t be easy. But, if you are up for the work, and you can find your confidence once again, and abandon fear, you can join me out here in the wild wild new frontier and stake your claim, and make your fortune.
In the old economy, there were a lot of rules. You may know some of them. Get a degree from a good school. Go to law school. Wear a nice suit. Talk the talk. Walk the walk. Follow the rules. Work for 7 years, make junior partner, work for 7 more and be a full partner. Work 14 hours a day 14 days a week for 14 years and then you’ll be making big money. Left-brained law firms doing work for left-brained businesses are on the way out. As right-brained businesses take over, they require creative attorneys who think outside of the box. The law firms of the future are like the clients they will serve: creative, flexible, fun. The law firm that I started is itself an experiment. My partners don’t share offices or associates. We don’t have an office manager or a file clerk. We are partially virtual, like so many of our clients who also don’t have offices, whose staff cyber-commute, where productivity is more important than an impressive and expensive office space.
In the new economy, I’m going to argue that there are different rules. The old ways are broken. This is bad because it has wiped out all of those high paying jobs. But, the fact that the old ways are broken is also good because it means massive opportunities. In the new economy, among a lot of the new rules being shaped. In my opinion, the new economy will reward who you are more than what you’ve done. Your credentials will be less valuable than your character. Your personality, combined with your education and professional experience will be what people know you for, and that will drive your success. Thus, I believe there are some guiding principles that you can follow that will help you on your road to success. Here they are.
You are a real person. Be real. No one wants to hire a fake as their attorney. No law firm wants to hire someone who is trying to be something other than who they are. Be who you are, or even better, be who you aspire to be. Be your best you, not who you are feeling in the moment. Right now, many of you feel like the real you is a rabbit huddled in a corner shaking and looking down the barrel of a shotgun. You’ll get over that, its not really you. Be who you are deep down. If it turns out you are a shallow, selfish person, be that anyhow, at least you will be real. Hopefully you grow out of being that, and if you do, since you are going to practice being “real” you’ll be all that much more genuine when you shed your shallowness for depth of character and your selfishness for otherness and empathy.
Remember that you are as smart as you thought you were, but now you are among a lot of other smart people. That’s not going to stop in practice. All of those smart folks go on to practice and run businesses. Your clients, colleagues, bosses, subordinates, all will be very smart. Get used to it. But, without being an arrogant asshole, be confident. Remember that you are really great at a lot of things. Don’t get lost in the vertigo of losing your self-confidence. Let your good stuff bubble up to the top and make you confident. Straight backed. Smile. Firm handshake. Confident in who you are even if you are still trying to convince yourself that you are not an idiot.
Wear things that make you confident. Look the way you need to in order to encourage your confidence. Find your style, or if you don’t have any style, get some help and work on it. It may take time to find who you are, and along the way, trust some snappy people to help you experiment with how you present yourself. As your confidence grows, your desire to style yourself will become more important because it will be a reflection of how you define yourself as an individual. Don’t focus on brands. Focus on what feels good so that you feel good about yourself. If you care about how you look, others will care. It sometimes means nice suits, but as you have seen me teaching for 14 weeks, sometimes its just about clean jeans, nice shoes and a pressed shirt. Whatever your style, your appearance will define you, at least in terms of first impressions, but also in terms of how you convey yourself in an ongoing way.
In the 80’s and 90’s greed was good. Lawyers were tough and mean. In the new frontier, people base decisions on relationship. You will interact directly with people more than most lawyers of the past 50 years. You have to be a nice person. Niceness is reciprocated. Clients want you to be nice, and the few who don’t are not people who you will want to work for. You may still get into tussle with opposing counsel, and at the same time, you have to spend your life working with them as colleagues, not enemies. I know of several attorneys who were recruited by firms that they once fought on the other side of. The other firm liked the associate on the other side and after the case is over, they recruit the associate, often to a better job.
You are brilliant. You have forgotten this in the fray of law school and the realization that among peers you are a smart person among smart people. But, you are brilliant. Be brilliant. Whatever you are brilliant about, let it shine through. I don’t mean to be arrogant. I mean to be that amazing creative and smart person that you know is deep within you.
Knowledge is easy to come by. Wisdom is not. Smart people, and you are all smart people, gather knowledge fast and easy. You are here at law school gathering knowledge. You have to keep doing that, for sure. But, the sages of the new economy will be wise. Wisdom knows how to apply knowledge. Wisdom means knowing how much you DON’T know, not just what you do know. You don’t have to be old to be wise, but you have to think differently about what you know. You have to respect what others know that you don’t. You have to realize how amazingly smart so many others are. Wisdom allows you to make decisions that account for tiny nuances and the calculation of a million little contingencies, and wisdom gives you the ability to do this same calculus as a counselor and advisor to your future clients. Wisdom makes you a prophet, and that is what your clients in the new economy will pay you for. They won’t want a document drafted, or a case simply litigated. They want a prophet to see the million contingencies and to advise the best path in light of those various outcomes. Be wise.
I was a funny guy. I was the class clown. Law school sucked most of it out of me, and lawyering took what was left. I’ve spent a lot of years as a recovering serious person, and now, I’m trying to get my humor back. Its okay to be funny. Tell some jokes. Go hear some jokes. Stay tuned to your humor. Have that sense of humor about the things that might otherwise make you cry or shout or stress you out. Fortunately, you have a constant stream of social media, and sites like ihascheezburger to bring easy access to your inner jokester. Play a game; do karaoke and make a fool of yourself and laugh; disco dance with your wii Dance 2. Dress up for Talk Like a Pirate Day, and talk like a pirate, matey! The new economy will not do well for straight-laced serious people who wear starched underwear.
If you believe the popular literature, the creative class will rule the next generation. America’s economy will rise or fall on its ability to build an economy that is largely intangible, an intellectual property economy. Product design matters, and intellectual property law is tied to it. Packaging design is a massive business and will continue to grow. Patents affect all aspects of modern businesses, where patent law touched only a small segment in the previous economy. Every business has a brand, and the trademark law that you will practice will shape what brands can and can’t do with those rights. New technologies are evolving faster than the law can keep up with. You have to tap your creativity to engage in the creative new world. You are creative. If you paint, paint. If you write, write. If you cook, cook. If you play something, keep playing it. I’m not great at any of my creative endeavors, but they matter. I paint oil on canvas, but I’m not going to make a living at it. It taps my creativity. I play sax, but not good enough for open mic night. Let your creativity flow and it will make you relevant to the creative new economy. Learn to love art. Engage in culture. Tap your right brain, and exercise it and put it to use.
You may hear people say that the world has become more and more specialized. This is certainly true. It is especially true in the world of law. However, there is something about the Internet that has made information more readily available. The result is that everyone has access to everything. You are not going to be safe being a specialist unless you are also broadly resourceful. You can’t just focus on a very narrow field of law and let other specialists do everything else. You have to become more and more resourceful than previous generations. Even ten years ago, a partner assigned a task to me, asking for something that I had no idea about. I asked a series of questions. His response was to shrug his shoulders and pretend to type on a keyboard. His message? Go figure it out, you’ve got the Internet. He was right. He didn’t have to do that in his day. He didn’t even have a computer on his desk. But, he knew that things had changed, and that I was expected to be resourceful enough to go find the answers. You will have to go find the answers. You need to understand a lot more than your specialized area of law. You need to understand the technologies that we operate in. You must learn to be highly resourceful.
Curiosity is the idea that you only learn what you want to learn. In order to be creative and to be resourceful and to become specialized and stake your claim in the new frontier, you need to be curious. You have to learn to want to know what you don’t know. You have to want to know it for the sake of learning it, and for the sake of knowing it, not for what it might specifically do for you. Curiosity is required in the new IP economy.
I think that I work as much and as hard as any partner at a big firm, but it sure doesn’t feel like it. Part of this is the fact that in the new economy, I don’t have to show up in a big building downtown. I start work when I get up and am often still working at 10:00 PM. But, in between, I’ve walked the dog, spent time with my daughter and wife. I’ve cooked or played guitar for a few minutes. I’ve had lunch with a client. I might have an 8:00 PM call with someone in India or China when their work day starts. I am working hard, and you will need to work hard as well. This means evenings, weekends, early and late. If you go to work for a big firm, you may work from 8 to 8, six days a week. If you work for a new economy lawyer like me, you’ll work whenever the work needs to be done. Its all hard work, but the beauty of the wild west is that your hard work can be from anywhere, and many of you will find yourselves at a café in Rome and still able to be working. I’ve worked on the beach in Thailand. I’ve had conference calls from a patio of a hut in Vietnam. I’ve been able to do some amazing things and the work never really stops. But, I’m not deferring my life until retirement. You can do the same, but you have to realize that it means hard work and lots of hours and a life that will feel, to some extent, like you are always working. Just work hard, and enjoy it.
Empathy means you are able to put yourself in the position of someone else. You think of things entirely from their point of view. It sounds easy, but its very difficult. Its difficult because we tend to view things from our point of view. We are selfish people, its our primary human flaw. In the new frontier, the lords and rulers are artists, writers, musicians, programmers, entrepreneurs, designers and others who need for their lawyers to view the world from their perspective. Empathy is required. Empathy requires practice. For some, empathy comes easy. I have had an advantage because I’ve done a number of business activities. So, when a business owner comes to me, I’m immediately thinking of things from their perspective, I was in their position at one point before. You can practice empathy by doing more than just lawyering. You can engage in business. But, you don’t have to do that to empathize, you can get around business owners and do something very important: listen. Listening is a lost art. By actually hearing what your future clients are saying, you can learn to empathize with them. You can get their needs and their wants and their perspective, and let it sink into your head and into your heart. Empathy is a skill that you must master to be a success in your future careers as lawyers.
Commit to Truth
If you want to be a success, you have to be committed to the truth. This is a truism that I confronted you with at the outset of this lecture. You have to be honest that you have a problem, being a law student who is facing a glum outlook on the job scene. You have to be willing to stay honest with yourself.
Once you have a commitment to the truth, you have to take responsibility for the truth. Everything is on you, and there is no one else to blame. America has a culture of blame. Everyone is going to shift responsibility. Politicians do it. Business owners do it. Voters blame politicians. Everyone has a hand out. Everything is someone else’s fault and therefore someone else’s problem. In the future that you will create, the successful people will be those who take responsibility, and realize that by doing so, they are empowered to act. They can change things. They and only they are responsible for their problems. You must do the same. You must be people of responsibility. Blame no one. Take action.
I’m not a big fan of team sports. I like tennis, surfing, racquet ball. Its not that I’m not a team player, but I guess I’m not a team player. The idea of collaboration is not the same as the idea of team play. In a team, the team is the center and the individuals all function to make the team a success. In collaboration, you do not have to be part of a team, but you have to connect to others, both individuals and teams, and share. You have to share information. You have to give and take. You have to let others partake of your genius and creativity, and by doing so, you will get to partake of theirs. Trust others to share when you share, be the first to share and not the last. Offer your ideas without expecting it to be returned, and over time, you’ll realize how many others reciprocate and pay it forward. There is too much to know for us to keep it all for ourselves or think that we can know all of what we need to know. We have to collaborate in the new economy.
Be Broad (be more than just an attorney)
There’s a paradox in the new economy. You have to be highly specialized. I do a lot of trademark law. I know it as good as anyone. Its very narrow as a subset of law, and a subset of a subset of law. I have that knowledge quite deeply and I will continue to deepen that knowledge. But, I also have to be a broad person. I need to know about taxes, economics, corporations, technology. I have to be well traveled and know something about wine. I have to know what is going on in the new technologies because IP law arises from the fertile ground of new technology. I know how to program HTML, understand basic PHP, and tinker with Apple ios, the operating platform for iphones and ipads. I’m not a programmer, but if I’m going to understand what my clients are doing, what they need, then I need to be broad as well as deep. I need to not just be broad as a lawyer, I need to be a whole person, and be capable of engaging in conversation about more than law. It doesn’t really matter what makes you broad, but be broader than just a lawyer. Be an art connoisseur, or a wine snob or make home brewed beer or play competitive backgammon. Be on a board of a non-profit or join an adult cricket club. Embrace life and live it broadly.
Take some chances/risks
This one is a subject I am most qualified to talk about. I’ve taken a lot of risks. Lots and lots of risks. I started a landscape company at age 19, it succeeded. I started a coffeehouse when I was 23. It failed. I have enough worthless private stock certificates to paper a wall of my office. But, the wins from risks have far outweighed the losses. It has been far better to take the chances when opportunities come than to have let them pass by. You are smart people. Take chances. You can almost always recover from whatever the downside was. You’ll be better in the end, even for the terrible catastrophes that can result from taking chances. No risk, no reward.
Try and Fail
Similar to the idea of taking risks, try and fail. Do something that you may fail at. Failure is good. You can’t succeed without lots of trial and error. Its true as a method of running a laboratory. Its true of life. Try and fail. Gather up that confidence again and try again and fail again. You won’t fail as much as you think, but let failure be your guide and teacher. Failure is not punishment, it is discipline. Discipline is good. Punishment is bad. Discipline is the careful selfless guidance that a parent gives to get you through life. Punishment is when a self centered parent berates you to fill some need of their own. Life rarely punishes, it disciplines. Discipline is painful, but nothing is a better teacher than trying, failing, learning, and trying again in light of the discipline of the lesson learned.
You Don’t Have to Practice Law
You are amazing people. You are brilliant. You have no idea how amazing and talented you are. You don’t have to practice law merely because you went to law school. You can do anything you want with all of that genius. Go do whatever it is that will let you be brilliant. Run a company. Start a non-profit. Be a CPA or a real estate broker or a stock broker or a stock car racer. If you will be a success in law, you will be an equal success in non-law.
However you slice it, the future is full of amazing opportunity for you. The new Wild West is a new frontier of opportunity for success. You can change the world, influence this new world and be anything you want to be in it.
You can see that the things required for success today are not about what you know or who you know but about who you ARE. Work on who you are and you will find yourself a natural fit for amazing success in the new IP world.
Dana Robinson is a founding partner of Techlaw, LLP, where his practice focuses on intellectual property and corporate matters. He founded the IP Externship program at USD School of Law in 2013, and teaches courses on IP and business. He has founded a number of companies, including his current project, Trademarkery, LLC which offers trademark docketing and monitoring software Trademark Bank.
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