Author: TSA Press

The California Consumer Privacy Act,  the most significant privacy regulation ever enacted in the United States, takes effect in January 2020. In order to help in-house counsel and legal departments learn what they need to know about the implications of the new law, we’re hosting our free “Cramming for CCPA” webinar on November 13 at 11:00 a.m. ET.

Our expert panel, led by Dave Feldman, Director of Offerings, Axiom who will be joined by global privacy experts, will provide insight into how their organizations’ CCPA implementation plans are proceeding. What key actions are they undertaking? What major roadblocks and challenges are they facing? What advice can they provide their peers regarding how to move swiftly and strategically to get their companies CCPA compliant?

In addition to these real world case studies, our program will also address:

• Where to start and the minimum requirements for compliance;
• Winning management buy-in for building your privacy program;
• How to set up a mechanism for consumers to exercise their rights; and
• The penalties for noncompliance and data breach.

Brian Dalton, VP of Research at Above the Law, will host the discussion.

Is there anything that Justice Sonia Sotomayor can’t do? Raised by a single mother in a Bronx housing project, she graduated from Princeton (summa cum laude) and Yale Law School, worked as a prosecutor in the legendary Manhattan District Attorney’s Office, and served on two of the nation’s most prestigious courts (the Southern District of New York and the Second Circuit) — all on her way to becoming the Supreme Court’s first Latina justice.

Her talents as a writer go beyond judicial opinions. In 2013, she published a bestselling, critically acclaimed memoir, My Beloved World. Earlier this year, she published a bestselling, critically acclaimed children’s book, Just Ask! Be Different, Be Brave, Be You.

Given her tremendous professional success, Justice Sonia Sotomayor is an excellent source of career advice. Even when she’s not providing tips for professional success per se, we can learn so much from her — as I did this past weekend, when I returned to Yale Law School for my 20th law school reunion and had the chance to hear her speak.

On Saturday afternoon, Justice Sotomayor, a member of the YLS class of 1979, sat for a public interview with Dean Heather Gerken (a trailblazer in her own right, as the law school’s first female dean). Actually, “sat” isn’t the right verb; Justice Sotomayor likes to walk, so the two conducted much of their conversation while ambling about the auditorium Oprah-style, wearing lavalier microphones.

Their free-ranging discussion was frank, fascinating, and funny — and it felt quite relaxed, even though it took place in the vast and formal space of Woolsey Hall, before an audience of more than 1,500. Justice Sotomayor and Dean Gerken didn’t set out to provide career advice — but their conversation inspired within me the following four tips for professional success.

1. If you don’t understand, just ask.

Why did Justice Sotomayor give her children’s book the title Just Ask? Here’s how she explained it to NPR (an explanation she shared with the YLS audience):

Supreme Court Justice Sonia Sotomayor was diagnosed with Type 1 diabetes early in life, and ever since has given herself insulin shots before she eats, to help manage her blood sugar levels. No big deal. But some years ago, she had an upsetting experience at a restaurant.

She was in the restaurant bathroom, just finishing up her injection, when another woman walked in. They both returned to their dinners, but as Sotomayor left the restaurant, she heard the woman from the restroom [tell her dining companions]: “She’s a drug addict.”

Sotomayor stopped, turned around, and said: “Madam, I am not a drug addict. I am diabetic, and that injection you saw me give to myself is insulin. It’s the medicine that keeps me alive. If you don’t know why someone’s doing something, just ask them. Don’t assume the worst in people.”

The justice’s book, Just Ask, explains a dozen different challenges faced by children — including diabetes, dyslexia, and asthma — so kids can learn to understand and celebrate, rather than fear or hide, what makes them different.

“Just ask”: Wise advice for kids and for life, but applicable to adults and careers as well. Young lawyers — for example, junior associates at law firms, or law clerks to judges — frequently make the mistake of not asking enough questions. As a partner or judge explains how they’d like something done, the young lawyer, not wanting to appear ignorant, doesn’t ask questions to clarify what’s unclear. The resulting confusion then causes the young lawyer to waste a lot of time, make mistakes in the project, or both.

As explained by another legal luminary, former Manhattan U.S. Attorney Preet Bharara, in his own bestseller, Doing Justice, asking questions is how we learn and grow. So don’t be afraid to ask “dumb” questions; the answers might surprise you.

2. Keep yourself open to possibility.

I’ve written about this before, but it bears repeating. In telling the story of her amazing career, Justice Sotomayor offered an excellent example of the role that chance plays in our professional lives — and how we must be ready to seize the chances offered to us.

As a 3L at YLS, Sonia Sotomayor did not have a job lined up for after graduation, and she was trying to figure out what to do. Walking down the main hallway of the law school one day, she spied some delicious cheese plates inside a classroom — refreshments for a panel discussion and reception about public service careers. Overhearing that the last speaker was being introduced, she saw an opportunity to enjoy some free cheese and snuck into the back of the classroom.

That speaker was none other than Bob Morgenthau, at the time the Manhattan District Attorney. In his remarks, he told the students, “If you come to my office, you’ll have more responsibility at age 25 than any of your classmates.” That pitch appealed to the young Sotomayor.

When she spoke with Morgenthau at the reception afterwards, he urged her to apply. She did, she got the job, and she embarked upon a successful career in public and government service. The rest is history — and it all started with some plates of cheese.

3. Prepare, prepare, prepare — but be prepared to pivot if necessary.

When she was a young prosecutor in the Manhattan DA’s office, her senior colleagues repeatedly emphasized the importance of preparation. The best trial lawyers think about every possible eventuality and prepare accordingly.

But even the best-laid plans often go awry. You might have prepared a beautiful presentation as a prosecutor, but trials are unpredictable things — and in just a few minutes, a single witness can blow up your entire case. And when that happens, you need to adapt.

The same goes for your career. You pick a practice area based on extensive research — but when you actually start working in it, you discover it’s not what you expected. You select a firm after ample due diligence — but two years in, you get laid off.

When these unfortunate surprises happen, ruining your carefully constructed plans, you can’t just curl up into the fetal position and cry. You need to regroup, figure out another path, and move forward.

4. If you’re unhappy in your job, then do something about it.

People don’t like to admit when they’re wrong — and this is especially true of lawyers. But as Justice Sotomayor told the YLS audience, “Don’t be afraid to say, ‘I’ve made a mistake.’”

In the career context, she explained, this failure to acknowledge error often leads lawyers to stay too long in jobs they don’t enjoy. But it doesn’t have to be this way.

“Take chances,” the justice said. “As a talented lawyer, you can change paths at any time.”

Disclosure: All links to books in this post are affiliate links.

Earlier:

David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.

As we approach the end of the 2010s, one of the defining features of the decade for patent lawyers has been the increased willingness of the Supreme Court to hear and decide patent cases. In contrast to the first decade of this century, where seven out of 10 years saw one or fewer Supreme Court patent decisions, most years this decade have seen three or more patent decisions by the Supreme Court. Which is an important development, because while some of the Court’s recent patent decisions have been more impactful than others, it is indisputable that there are significant ramifications for IP owners whenever the Supreme Court speaks. 

Considering that on balance the Supreme Court’s pronouncements have been perceived as negative for patent holders, it is hard to ignore the Court’s arguable contribution to the well-documented decline in patent values over the past decade. A decline particularly exacerbated in the minds of many by the Court’s Alice and Oil States decisions, on the issues of patent eligibility and IPR constitutionality, respectively. Or TC Heartland for that matter, which has erased venue-based advantages previously enjoyed by patent owners, by limiting patent enforcement to venues where the alleged infringers are incorporated or have a physical presence. Taken together, the Court’s recent jurisprudence has shifted the patent litigation landscape on a number of critical fronts. Ask any patent lawyer or patent owner if you need confirmation.

In light of the Court’s increased attention to patent issues, it is fair to ask what factors may be behind the phenomenon. Increased division of opinion at the Federal Circuit is one likely contributor, as has been the need to resolve issues arising out of the passage and implementation of the America Invents Act. A recent Iowa Law Review article by Boston University’s Paul R. Gugliuzza suggests another interesting factor at work as well. In his view, “[E]lite lawyers’ remarkable success in obtaining certiorari may help explain why the number of patent cases heard by the Supreme Court has increased so substantially over the past decade.” While I agree with his thesis, we must first clarify what he is getting at with his reference to “elite lawyers.”

Professor Gugliuzza defines an “elite Supreme Court lawyer as someone who has presented oral argument at the Court in five or more cases in the current and ten preceding Terms, combined.” As you can imagine, that is rarefied company. And that small cadre of elite lawyers handled around half of all Supreme Court oral arguments in one recent term. Moreover, that small group of lawyers has increasingly found clients interested in hiring them for patent matters, whether to argue Federal Circuit appeals or to file cert petitions in the Supreme Court. The latter activity has more than doubled this decade as compared to last, perhaps as clients have seen better results when using an “elite lawyer” to petition the Supreme Court. With more patent-based petitions being filed by top-drawer Supreme Court practitioners, it is not surprising that we have seen more uptake of patent cases by the Court. 

Likewise, the increased participation of Supreme Court expert advocates at the Federal Circuit level may also contribute to better positioning of cases in terms of attracting Supreme Court interest. One consequence of this shift from patent specialists to appellate luminaries for handling patent appeals, as noted by Professor Gugliuzza, is that ”patent law — particularly at the appellate level — is being shaped by the most notable generalist litigators at the country’s most prestigious law firms.” Whether or not that is a good thing is up for debate.

For Professor Gugliuzza, one important benefit of the increased activity amongst “elite lawyers” in patent cases is in helping to provoke necessary Supreme Court oversight over the Federal Circuit. In his view, “elite advocates can pick and choose specific legal issues on which settled Federal Circuit law is particularly in need of reform and that the Supreme Court might be willing to disrupt.” Adding to the Court’s comfort in dealing with such important issues is its confidence that “elite lawyers” will handle such difficult cases with aplomb. 

At the same time, there is also the danger that both non-patent specialist “elite lawyers” and the Court will focus more on those patent law questions that center on procedural or statutory issues, rather than important technological elements, such as questions of validity. As noted in the article, “the Court’s agenda in patent law doesn’t always focus on the core issues that are most salient to the day-to-day administration of the patent system. Indeed, it took more than a decade and numerous unsuccessful cert. petitions before the Court finally tackled (and overturned) perhaps the most important and controversial ruling the Federal Circuit ever made: that patent claim construction is a pure question of law subject to de novo review on appeal.” Put another way, when the Supreme Court’s patent agenda is being shaped in part by elite generalist lawyers, there is always the danger that key issues take longer to receive necessary attention.

Ultimately, Professor Gugliuzza’s article is a fantastic example of academic scholarship that practitioners and their clients should be reading and thinking about. For one, much has been made of the impact of lobbying by industry interests on Congress when it comes to patent law changes in the past decade. At the same time, the increased role of “elite lawyers” in patent matters can be viewed as a subtle type of judicial lobbying by the clients with the good sense and resources to hire those advocates for their appellate patent needs. The consequences of this shift towards “elite lawyers” thereby resonates down to the entire patent ecosystem. The supreme solicitor club may be a small one, but like the Court itself, their reach is both deep and wide in the patent space.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

* An alleged New Hampshire church shooter has reportedly beaten his own lawyer… good luck trying to find another attorney to represent him. [Boston Herald]

* A bunch of law firms are vying to provide fixed-rate trademark services for Amazon. Wonder if they’ll offer free two-day delivery for Prime members. [American Lawyer]

* It may be time for the “Piper” to pay –another DLA Piper employee alleges inappropriate behavior by a firm partner and administrators. [Bloomberg]

* R. Kelly and his divorce lawyer are in Splitsville over R. Kelly’s alleged failure to pay his lawyer’s fees. [Chicago Sun Times]

* Roger Stone won’t be able to show clips from The Godfather Part II at his trial. I guess they made the judge an offer he could refuse. [Daily Beast]

* Unfortunately, two beaten-up lawyers make today’s Morning Docket. The Cleveland attorney sucker punched by a client after a 47-year sentence was handed down is mulling a lawsuit against the local sheriff’s department. [Cleveland.com]

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.