Re: An IP gripe

Of course there is a huge (relative) demand for lawyers with technical backgrounds -- that is not who goes to law school.

Of course those of us who have either a technical education background or sufficient aptitude and interest to learn the technology are at an advantage over those who do not.

Of course any lawyer who knows the industry and knows the needs and interests of the clients and of the other side has an advantage over the other side. This is one of the main things I stress in my Computer Law class.

But the lawyer who knows *business* and the business side of the equation will often get more of the more important aspects of the transaction right than will the more narrow tech lawyer -- and certainly than the lawyer who just knows the law and is looking for legal protections only. I often was able to negotiate quite good deals for my clients (and the other side got good deals too -- or so they thought) by knowing the tech and knowing the industry and knowing business needs. Knowing the law was secondary -- there are very few contract lawsuits, very few legal issues that matter in normal commerce (except as the bedrock on which the contract sits -- but that is so taken for granted as to be ignored and ignorable most of the time).

I have negotiated with tech-knowledgeable lawyers who dazzle with their arcane knowledge. I just asked my client if the client was techno-savvy, or a friend or expert if my client was the less techno-savvy user (in the old days (mid-80s) I often was more tech knowledgeable than the clients who were buying the stuff -- and I was a history major).

Many IP law firms are defining their business to exclude people like me. This is fine. They have determined their nitch. But many other firms need IP people in copyright and trademark and cannot compete for the scarce technical-degreed people -- there are not many of them around. And so they make do.

This lack of technical knowledge or knowledge of the underlying business is common among lawyers -- and not just in the IP-related areas. Most of the top lawyers in the construction field knew a lot about construction and architecture and engineering -- though few were contractors or architects or engineers -- and none of us could do the design work -- but we understood it. The neophytes to the field would get chewed up. Same would happen with banking, bankruptcy, publishing, leasing airplanes -- every area where I have talked to expert, effective lawyers in the practice they all say that what separates them (and their best colleagues) from the pack is not knowledge of the law or some magic touch, but rather just knowing the business.

I think that Bob Oppedahl's point is just a special case of this.

But I think there a quite a few folk out there who have the technical aptitude and interest who do not have the technical degree. We can't do patent law, but we can be effective and ask the appropriate techie questions for the techie areas we know. The undergraduate degree is no guarantee of knowledge. Many of the EEs and math-types and computer types I know do not understand the tech outside of a very narrow focus
-- and many of them don't care to know more than needed to do the work.
For example, at our shop the IT people don't know and are not learning XML on their own -- it is taking the push from the top to get them to do it. And yet XML will be huge and they will need to know it.

20 years ago I heeded advice not to take patent and copyright because of the lack of a technical degree. I then spent years in practice learning them on my own -- especially copyright and trademark and trade secret. Patent I learned enough to know when to refer someone out to a specialist. The bad advice I received then is even worse now.

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Steven D. Jamar
Professor of Law
Director LRW Program
Howard University School of Law
2900 Van Ness Street NW
Washington, DC 20008

vox: 202-806-8017 fax: 202-806-8428
email: sjamar[_at_]law.howard.edu

The elaborate argument . . . does not need an elaborate answer

Oliver Wendall Holmes Received on Sun Aug 22 1999 - 14:24:10 GMT