Archive of articles classified as "Law"

Open Source and Patents

6/08/2011

Tim Davis I was asked to post a paper I wrote a little while ago relating to Open Source Software and Patents – given the prominence of this subject at the moment. Feel free to discuss this paper or any recent developments regarding patent law in the comments.

The internet is profoundly reshaping the manner in which we are interacting with technology in our world. It has transformed not only the way in which we share and communicate information but also how we locate, learn and explore different types of media online. Fundamental to the development of the internet is the principle of collaboration that exists between millions of different people scattered across the globe – who are able to connect, deliberate, ponder and solve complex problems which would have otherwise remained unsolvable. It is this organic and multi-lateral cooperative effort which has allowed researchers and entrepreneurs to innovate and create commercially viable applications which have not only increased the dissemination of media on the internet, but also improved the manner in which the internet is evolving.

It is apparent that in order for the continual expansion of the internet to continue there must be persistent and increased collaboration and development between all users. It was collaboration which lead to the formation of the internet during its initial development as far back as the 1950’s, and it was collaboration which became fundamentally important during the early 1980’s and 1990’s when people began to realize the increased need to find and organize file and information structures. It was also at this point that the view of software development changed radically. Software was no longer being viewed as a pure mathematical algorithm but rather as a medium that was critically important to business success, and many technology companies began to question why software was not been offered the same legal protection as other industries. Companies such as Microsoft and Intuit were pushing for increased protection of intellectual property rights on software in order to protect their commercial business strategies and facilitate innovation. During the same era, Richard Stallman created the Free Software Foundation (FSF) to openly oppose this drastically changing trend. Stallman despised both the concept of proprietary software and that of intellectual property rights over software, rather proposing that all software be ‘free’ – a definition he characterized as ‘free to use, read, modify and redistribute without any legal repercussions’. Stallman’s arguments were almost entirely dismissed by many software companies at the time simply because ‘free’ was not ‘commercially viable’.

Thus, in this article I will endeavor to explore the changing attitudes between proprietary and open source software and its evolution in relation to the internet. I will seek to focus on the development of patent law in the United States primarily because it was the first legal system in the world to allow increased intellectual property rights over software and in doing so, ultimately opened the floodgates for the rest of the world to follow. I will consider the implications of open source software and discuss whether the attitudes in relation to open source software have changed since the early development of the internet. I will also attempt to explore the juxtaposition between protecting and rewarding inventors with patent protection versus unfairly restricting other innovators from developing and advancing technological processes through open source software. Finally, I hope to conclude by discussing whether a rational solution can be discovered which protects inventors while also allowing the open source community to freely evolve.

II. Patents

The fundamental purpose of a patent is an impartial grant of an exclusive set of rights which provide the patent holder with a monopoly over the related subject matter. The majority of patent law revolves around the issues of what is patentable, whether the specification provided in the original filing is adequate, whether the monopoly claimed is supported by the relevant and appropriate documentation and whether the supposed invention is in fact novel and inventive when measured against the ‘prior art’ – that which was already known in the relevant field at the time the patent was sought. While these fundamental aspects are standard features of all non-software related patents, the development and approval of software patent law has only very recently been established and the requirements differ to some extent. The precedent set by the 1981 US Supreme Court in the case of Diamond v Diehr was the first instance in which the US courts had instructed the United States Patent and Trademark Office to grant a patent for an invention in which computer software was utilized. The decision set out in this case created confusion for computer programmers because there was no clear definition provided by the court as to whether software related inventions were actually patentable. The resulting accepted interpretation at the time was that software in isolation was not patentable but innovations which used software as part of larger process were.

The US law remained stagnant with this definition for almost a decade, and it wasn’t until the mid 1990s that a clearer ruling on software patentability evolved. In 1994, the Court of Appeals for the Federal Circuit (CAFC) built on the decision from Diamond v Diehr and stated in In re Alappatthat “programming creates a new machine, because a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from the program software”. This decision set an entirely new legislative decree for software patents and the intellectual protection of software in general. Despite the significance of this decision, it was not until 1998 that CAFC made the single most important ruling in relation to software patents today, by removing the archaic ‘business method exception’. The ‘business method exception’ was created in Hotel Security Checking Co. Vlorraine Co in 1908 and was implemented in order to prevent ‘methods of doing business’ being patentable subject matter. It was consequently invalidated by CAFC in 1998 when ruling on the State Street Bank & Trust v Signature Financial Group case. State Street attempted to have Signatures patent invalidated on the basis that it was a mathematical algorithm and was also a business method. CAFC rejected State Streets argument and invalidation claim, which it suggested was based entirely on the contention of ‘unpatentable abstract ideas’ and subsequently negated the ‘business method exception’ entirely. Following the State Street decision, it became clearly apparent that computer software and data structures were now considered patentable subject matter in the United States. The US Patent and Trademark Office attempted to outline some ‘computer related examination guidelines’ for software patents with the basis of these guidelines being that the invention must produce a ‘useful, concrete and tangible’ outcome. Unfortunately, these guidelines were, and still are, easily fulfilled during the drafting process of software patents and a flood of new software patents emerged as a result.

Although there is ample evidence available to suggest that most computer software programs are statutory in nature, the typical requirements for patentability still remain. The most important prerequisite for a software patent is that the invention defined within, or by, the software program is non-obvious – a determination made by assessing whether the invention would have been obvious to a person of ordinary skill and knowledge in computer programming at the time of filing. This fundamental prerequisite of software patents is also the greatest limitation in the patentability process, as most patent examiners are unable to effectively research all of the prior art, and subsequently validate patents which should not have been certified. As a result, the continuous flow of pre-existing and recently filed ‘valid invalid software patents’ are causing serious problems and concerns for all of the free source, open source and even proprietary software communities since those accused of patent infringement must conduct their own prior art research in order to determine whether or not the patent is invalid. While it is argued by proponents of the patent system that owners of software patents are disadvantaged because of the ease at which the validity of patents can be questioned, the entire process obviously requires substantial review and improvement.

Many supporters of open source software have actually suggested that the US Patent legislation should replicate laws implemented by the European Patent System. The European system specifically states that computer related inventions are not patentable, although it does allow member states to interpret and dictate this directive. As a result, many member states have simply allowed software patents to be valid which has resulted in thousands of patents being accepted by the European system, and enraged many enterprise software companies. The European Patent Office (EPO) argues that the European Patent Convention does not ban software programs completely but rather specifically defines what is, and is not, patentable. They indicate that algorithms by themselves are definitively not patentable for example, but an algorithm contained within a computer program which solves a technical problem is. The ambiguous definition and lack of clarity in the European Patent Convention is not unlike the historical decision from Diamond v Diehr in the United States, where many European software developers are now simply confused as to what is, and what is not patentable – a suggestion the EPO discounts.

Despite these flaws, there are increasing numbers of people who are of the view that the European method of handling patents would assist the US in reducing the flow of ‘valid invalid software patents’, and reward and recognise truly novel inventions with patent protection. Members of the proprietary software industry are actively dismissing this suggestion. They claim that the US System only just provides the minimum requirements to protect innovation and anything less would severely reduce their competitive advantage in industry, and render the fundamental purpose of the patent system – the granting of a temporary monopoly – useless. While it is unclear whether the European Patent System is, or would be, more effective than the US System in reviewing software patents, it does illustrate that there are more systemic problems in the US System compared to the European one, due to common law rulings on software patents.

III. Open Source Software

Open source software is predominately a method of creating and distributing software. According to the Open Source Initiative, open source doesn’t just mean that a person has fundamental access to the code. The distribution terms of open source software can also include many different criteria ranging from free distribution initiatives to source lock down terms, where any modifications made to the source code must always be openly provided. Thus it is clear open source software is not rule-free software, but rather software in which certain restrictions are imposed on users of the code. Founder of the Free Software Foundation, Richard Stallman, has consistently dismissed the fundamental premise of ‘open source’ as he believes software should be entirely ‘free’. He suggests that “free software is motivated by an idealistic goal: spreading freedom and cooperation. I want to encourage free software to spread, replacing proprietary software that forbids cooperation, and thus makes our society better”, a view that hinges on the extremist end of open source collaboration and is perhaps only effective in certain development environments.

While Stallman may want all software to be free, the success of open source software from both a commercially viable and development model cannot be denied. It is often acknowledged by even proponents of open source software models, that there is immense value in the open source system, by being able to generate results and facilitate collaboration in order produce and develop software. This was illustrated clearly by the release of theHallow Documents – a set of highly confidential documents which were leaked to the press which outlined Microsoft’s plan to disrupt open-source software entirely, and also its strategy to “deny open source initiatives such as Linux entry into the market”. Other highly publicised illustrations of open source successes included the response by the Open Source Initiative foundation to AOL letter regarding the Mozilla project and its future. While these examples provide illustration that open source systems and applications are becoming increasingly viewed as a cost-effective, secure and reliable way of implementing systems in the corporate environment
, there are also a number of challenges that open source software have yet to overcome. The most obvious challenge comes from Microsoft and its so-called “FUD” tactics, or Fear-Uncertainty-Doubt strategies, which attempt to undermine the popularity of open source systems and their safety online and in corporate environments. This is particularly evident through Microsoft’s continued argument that open sourced systems allow hackers to study weaknesses in source code structure, thereby gaining valuable insight into the organization of code and consequently infiltrating companies who use the software to gain access to their data. Conversely, open source commentators argue that since the software is ‘open’, any programmer can review and fix security flaws much faster than proprietary developers, and thereby plug security holes quickly and efficiently. A strong example of open source collaboration is the internet based Mozilla browser project, which has attracted contributions from millions of software developers around the world and is now the 2nd most popular browser on the planet after Internet Explorer. Despite this example, the critical challenge to open source software is not defending its manner of operation but rather the increased threat from software patents that could potentially ruin the open source movement and halt the innovative process.

The issue of software patents has become a critical problem for the continued development and expansion of the open source software community, predominately due to the fact that open source software relies heavily only on copyright protection and licensing. The United States Patent and Trademark Office have been issuing patents for software development at unprecedented rates. A possible explanation for this substantial increase in patent applications stems from computer programmers not wanting to rely solely on copyright law as their only means of intellectual property protection, particularly because US Copyright law requires copyright owners register their works in order to litigate. Additionally, software developers are wary of the subjective nature of copyright interpretation in respect of the US lead idea-expression dichotomy contained within the US Copyright Act. The idea expression dichotomy suggests that “ideas that are the fruit of an author’s labours go into the public domain, while only the author’s particular expression remains the author’s to control”. The application of the idea-expression dichotomy is particularly prevalent in relation to open source software programs in the instance that the abstraction-filtration comparison test is applied. The “abstraction, filtration and comparison” test was developed during the Computer Associates International Inc v Altai Inc case. The US Copyright Act clearly indicates that computer programs are to be protected as literary works, and non-literal structures of computer programs are to be covered analogously in ‘other literary’ works. The test attempts to separate the expression of an idea from the idea itself, and it does this by identifying protectable elements of the expression from the unprotectable elements. Many have commented that the “the abstraction-filtration-comparison test eliminates protection for computer programs by entirely filtering out not only the individual elements of computer programs such as software objects but also the compilation of selection and arrangement expression that is the program’s structure, since both are designed with efficiency in mind”. The difficultly for software developers to rely on this test during copyright litigation is that it is difficult to interpret, and only provides protection for the literal component of the program – a potential problem in open source software development. Consequently, the outcome of this case has encouraged some software developers to seek patent protection as a more secure way of defending their underlying software programs as opposed to any reliance on copyright law, and thereby actually encouraging, perhaps unknowingly, proprietary software development.

Additionally, the other obvious problem created by the application of this law, is that any businesses attempting to develop a commercial open source application may be unknowingly infringing patents and risk consequential litigation. As many computer programmers are shying away from a reliance on copyright protection and filing patents, it makes it exceeding difficult for any commercial enterprise to effectively develop open source applications without becoming embroiled in a patent litigation suit. It has been commented numerous times in the US that the patent system is entirely too broad in its approach of issuing software patents for concepts which have existed in some prior art form. A review of the US Patent and Trademark office has suggested it has systemic internal problems and is unable to handle the sheer volume of patent pending applications being filed, the complex and technical nature of the work and the lack of experienced staff examining and validating software patents. In addition, there has also been increasing observation that Patent Attorneys are technically rewording prior art in order to achieve patentable subject matter which has already existed in some prior form. A clear illustration of the problem can be identified via U.S. Patent No. 6,330,551 issued in 2001 which was granted to protect ‘automated online dispute settlement systems’. The patent is effectively for an internet based computerized system of dispute resolution which allows each party to resolve their disputes electronically by entering in a monetary sum to settle the claim; a computer generated algorithm then automatically calculates the dispute payout to each party. The difficultly with this patent is that there is definitively obvious prior art documented by a paper written by RM Issaac on “Theories and Tests of ‘Blind-Bidding’ Dispute Resolution” which was published in 1989 in the Journal of Economics.

There are countless other examples similar to the one provided above and it is evident that the issuing of such patents, which have a broad and unqualified concept specification are definitively negative to the continual expansion of the open source software movement on the internet. The difficulty stems from the fact that the inherent nature of open source software is its intrinsic ability to facilitate collaboration and take free forms of expression from any contributor that wants to devote their time to the project. The internet has accelerated the rate at which programmers can collaborate and build software across distributed networks and decentralised development boundaries. If a patent exists for a fundamental idea behind an open source software project being created, then the collaborative process on this project is damaged. Regardless of the project owner’s legal right to the copyright of the code, the project is rendered useless without a valid licence from the patent holder. Evidently, this causes many developers to stop contributing to the project for their own indemnity purposes and the open source initiative breaks down entirely. Furthermore, while open source copyright holders could attempt to have a patent invalidated in court, such processes are generally extremely expensive and developers generally do not have the funds or resources to undertake such a process. Thus in this instance, the collaborative and collective efforts of software developers in the open source community are severely disrupted by the existence of patents.

However, while it is obvious from the previous example that patents are hindering the open source software effort, the alternative to patent legislation could be worse. Currently, many patent holders offer free licences to open source collaboration projects and provide free licensing and distribution rights in respect of their IP portfolios. Open source and free software proponents often forget that patents spur innovation forward because the invention needs to be fully disclosed to the public. The ability to review and improve upon existing technologies then further spur forward the creative process, and are positive for competition. Additionally, the removal of software patents in their entirely would result in an increased reliance on copyright law and trade secrets – both of which would be significantly worse for the software industry and open source community in general. Furthermore, if patents were eliminated entirely, it would make it extremely difficult for small businesses to gather external funding, particularly when venture capital financing look heavily to patent applications before funding small business.

IV. Where to from here

It is clear that there is a gaping divide between proponents of free and open source software and patent law. Open source commentators are of the firm belief that patent law is hindering the innovative development processes behind software applications and the internet in general. There has been extensive discussion in this paper that open source software cannot coexist with patent litigation simply because of the legal differentiation between the
protection of copyright and expression, and the monopoly rights associated with patent law over the relevant subject matter. In some regards, it is acceptable to conclude that free and open source proponents are hypocritical in their views on patents since they express their desire to preserve collaboration and freedom of expression, yet limit the abilities of an individual inventor to protect his or her idea. Equivalently, many of their arguments illustrate critical weaknesses in the US Patent and Trademark system. It is clear that the current system is not working effectively and ‘valid invalid software patents’ are consistently being approved by patent examiners. However, to suggest that the abolishment of the patent system as a whole is required to ensure that the internet is protected and innovation can continue – is not an effective solution to the problem either. Many academics have written about systemic problems associated with the US patent office and a plethora of plausible reform structures which would work. Reforms of the patent system would benefit all sections of patent law and not just software and business methods. In addition, encouraging enterprise business to licence their IP portfolios to open source initiatives are actually beneficial, since there are economic benefits if the software is used commercially.

It is important to remember that the foundations of the internet were built on the collaborative efforts of many, and it is acceptable conclusion that only with this continued cohesion can the internet continue to develop into the future. The benefits of open source software have been well documented throughout this paper, and equivalently, so have those of software patents. While it is accepted that fundamental problems exist with the continuing trend of validating ‘invalid’ patents, the system is capable of being reformed with external input, database improvement and increased information dissemination. Open source software can and will continue prosper into the future despite looming patent issues, as it has stubbornly proven that it can even in the current software patent environment. Additionally, large scale open source projects such as Mozilla and Linux only promote the efforts of open source development and future open source initiatives. Thus, while it is accepted that patent reform is necessarily in order for open source initiatives to continue to proposer, the abolishment of the patent system in it’s entirely is nonsensical and does not seek to promote, harbour or extend innovation in any form – whether it be on the desktop or the internet.

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All Things Law Stats

8/05/2011

Tim Davis So I thought I would post some of the stat’s around the free law forum I created – All Things Law – and what it receives after being around for about 12 months without any promotion at all. I’m pretty happy with the way the forum has gone so far considering that I haven’t had to put much work into it. The central idea behind it is to enable sharing and collaborating around studying the law in Australia much easier by providing an opportunity for students and graduates to share their knowledge where possible.

Anyway, the stats for the period of March 1st -April 30th 2011 are below with Total Members being around 1,523:

  1. Period Pageviews – 9,342
  2. Unique Visits – 2,464
  3. Pages/Visit – 4.04
  4. Avg Time on Site – 2:24
  5. Avg. Signups per week- 34
  6. Most Referring Site – Timdavis.com.au
  7. Most Other Referring Site – Google + Facebook
  8. Total Answers – 93
  9. Most Popular Page – Notes page
  10. Longest Time Spent – Law Clerkships – The Naked Truth

Of course, the site is and will always remain a completely free resource for students – both undergraduate and post graduate. While I don’t  have all that much time to manage the site and  the increasing load that it requires – I am happy to engage with people who want to get involved, help promote the site or become moderators and the like.

If you think this is something that you might want to get involved with – preferrably being located in Australia – just contact me at any time.

 

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ACTA – Anti-Counterfeiting Trade Agreement

19/11/2010

Tim Davis For those of you interested in the Anti-Counterfeiting Trade Agreement – attached is a paper and some research that I conducted in respect to the agreement and the general implications that it holds in my view. I concluded most of the research right around the time the ACTA agreement was finalised – so provide your reading of it in this context. Generally, I do not think it is a worthwhile agreement to adopt for a range of reasons outlined in the paper – but perhaps, most pertinently, despite the Department of Foreign Affairs & Trades insistence that it won’t – it will have a definitive impact on our local laws when ratified. Particularly interesting, will be the Courts interpretation of ACTA – and you can rest assured that intellectual property rights holders (IPR’s) will be jumping on this agreements collective bandwagon if becomes part of Australia law.

ACTA Pre-Text

The growth of technology in the modern age and its unparalleled advance has rapidly altered the transfer of technology between countries around the world. At the core of this advance is the increasing proliferation of technological innovation and the precipitous development of digital systems which have catalyzed the rate of technology distribution across global borders. Evidently, as a corollary of this rapid technology transfer stems the overarching concern from intellectual property right (‘IPR’s’) holders about the adequate level of enforcement and protection of intellectual property in the global economy. The access and value of such knowledge is particularly relevant in developing knowledge-based economies where ‘expertise, innovation, quality and creativity are the main factors for success’. In this regard and as the socioeconomic divide between the developed and developing world closes, the efficiency and effectiveness of existing judicial mechanisms has been questioned.

The majority of such criticism stemmed from the Second Global Congress on Combating Counterfeiting and Piracy (‘GCCC’) 2005 in Lyon, France where Japan ‘proposed for a new international treaty on counterfeiting and privacy’ which was termed the Treaty on Non-Proliferation of Counterfeits and Pirated Goods. Japans interest in raising the spectre of such an agreement originated from the then Prime Minister Junichiro Koizumi who aimed to

‘[e]stablish Japan as a nation built on a platform of intellectual property … and enhance measures such as speeding up patent examinations, reform of the justice system in the area of patents, and reinforced measures against counterfeit and pirated copies.’

Such an aim spring-boarded Japans policy considerations in the area and a new intellectual property framework was developed which lead to the establishment of the Intellectual Property Strategy Headquarters.[4] The aim of this Headquarters was to spearhead intellectual property development and protection in Japan and abroad given the country’s heavy reliance on the global economic benefits of it.

Read the entire paper – here.

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Law Clerkships – The Naked Truth

19/08/2010

Tim DavisI thought I would put together a little section on Clerkships – my experiences and my general thoughts. I also have put together an Example Cover Letter which might assist you if you have never done a cover letter before. I am, by no means, suggesting that this is perfect – but it might help you out in your applications for Clerkships. I also intend on doing a similar type of scenario for CV’s and I hope to get that up here at some point as well.

The following is simply my thoughts on Clerkships and Law generally. You may agree – or disagree – with these general thoughts and feel free to open a discussion thread on All Things Law in this regard.

Clerkships – The Naked Truth

Law Firm clerkships are an inherent part of becoming a lawyer and they are also perhaps the most stressful.

Clerkships are typically viewed as a nightmare – they are ultra competitive, there are only so many firms, and there are only so many positions on offer.  Most of the larger firms typically receive more than 1,000 applications for seasonal clerkships and usually have only 60-75 seasonal positions on the table. This means to even start, your chances are narrowed to around a 6% or 7.5% of even getting a seasonal place. This is then reduced even further for the now so called ‘Professional Legal Trainee’ program where the pool of 60-75 seasonal graduates is reduced to 30 who actually receive graduate offers.

The outcome? A 3% chance of getting a graduate place from the moment you click that ‘Submit’ button when you are applying at firms in comparison to your peers. Picture this as you stare around the lecture theater, only 3 out of every 100 people around you will end up working at a big firm. This is, of course, based on the assumption that you want to go to a big firm. There are positives and negatives to the entire process and in my experience it’s critical that you allow yourself the best opportunity to work in a big firm and in a smaller or mid-tiered firm.

Back when I first started the JD, I sat down with a very senior legal friend who was General Counsel at one of the largest financial organizations in Australia. His key advice in a nutshell was essentially that:

  1. Decide whether law is really for you – 100 hour weeks, 2,000 hours of billing a year – it takes commitment.
  2. Try large and small firms – there are huge differences in the scale of work, career advancement opportunities and networks.
  3. Choose something that you love – don’t get stuck in one practice group area and never leave. Rotate, rotate, rotate.
  4. Be comfortable to leave to progress your career – don’t feel “trapped” in any one firm – or even staying in law.

This advice – couldn’t be closer to the truth.

I clerked at both large and mid tiered firms – on the basis of my friends advice – and the differences were profound. Primarily, the scope work was different – more individualized in the later as opposed to larger teams in the former. The level of resources available is almost incomparable particularly in relation to electronic resources and databases that are taken for granted while at university – at mid-tiered firms, the number of licenses are restricted due to the inherent cost base of having so many while at larger firms – everyone gets a license. I also found that at mid-tiered firms – Friday night drinks on the firm are sacrosanct and an integral part of the culture. In juxtapositioning this against larger firms who rejected the notion of Friday night drinks every week as “wasteful”. Of course, this didn’t mean that you still didn’t go out for Friday night drinks – you just don’t do it on the firm – rather, you went out in smaller groups on your own.

This infers that there are conflicting issues at play – the larger the firm, the greater the value of work, the greater the work resources, the larger the team sizes and the longer the career progression. Conversely, the smaller the firm, the greater the mid-range-to-small level of work, the less amount of work resources, the smaller the teams and the faster the career progression. In the later, it is not unheard of to make partner in 3 to 5 years while in the former – you will only be sitting on Senior Associate level – if even that.

All this is relative to who you are and what you want to do – whether you get an offer to a larger firm, whether you want to work at a large firm and whether you want to even be a lawyer. I am merely attempting to rationalize both sides of the argument so that you enter the legal world with a balanced view. Don’t go to a big firm with the attitude of – “I want to earn a shit load of money” – sure, you can and very much will – but don’t be so ignorant to believe that money in law can appreciate on its own. It’s quite the opposite – money in law is correlated to human capital and law is not a scalable industry in any sense. This infers that you will work – and you will work very long hours – to achieve the acceptable billing level to move up the law firm hierarchal structure.

The Cynics View

The Naked Truth sounds all very depressing doesn’t it? I would answer this as both Yes and No.

The people who end up at the big firms are the so-called “well-rounded” students. They have travelled to Africa and saved endangered animals from extinction by wrestling native Africans and beating them in spear throwing competitions in order to gain access to their land. They have taken a year off to contemplate life in a remote Chinese village at the top of some mountain in some place that you can’t pronounce. They have worked at community legal centers, they have joined every committee under the sun – on both earth and extraterrestrial planets – and have a raft of HD’s to complement all this. Typically, in order to sort out such student – I have formed the aptly named ‘Awesomeness Equation’.

The ‘Awesomeness Equation’ is composed of ‘Humbleness + Social Character – Wankertude + Counter-Wank’. Many people who draw with a low score in this equation love to tell you about themselves – primarily because they have a high ‘wankertude’ – the part of the equation you want to sidestep. A high ‘wankertude’ is attained through key examples such as telling you they are doing judicial clerkships under justice so-and-so, or by simply stating mid-conversation “Did you hear? I just got 102% for property law – first person to exceed 100%” or letting you know that they have clerkship offers at every firm including firms that aren’t law firms yet or who aren’t in existence but will be some day.

Some firms love a low – or even negative – score in my ‘Awesomeness Equation’ and these are the firms you do not want to work for in my opinion. The reality is that it primarily depends on the firm and what they are looking for. If you ascertain that most of the clerks, partners or employees are scoring low in the ‘Awesomeness Equation’ then you have already made up your mind that you don’t want to work there.

Evidently, while I say this with some jest & humor, I am attempting to be be frank by suggesting that you don’t need to be a wanker or mix with wankers. Nobody likes a wanker – being humble suits everyone and makes those that didn’t get a whole raft of offers feel more at place in the conversation with other clerks. In comparison, those that let everyone know just how good they are often brings an awkwardness to the conversion which leads to the dreaded conversation silence, window watching, star gazing and ultimately “how’s the weather?” type conversations. You’ll be able to easily identify such people because as soon as senior members of the firm come over for a chat, they are the ones to introduce such topics off the bat – this ultimately leads to the circular responses from around the group in answering the “how many offers did you get?” question in front of partners and they get to bask in responding to them like eager narcissistic children. Sure, if you meet a wanker – you can attempt to “counter-wank” the wanker – thereby offsetting any attempt you are making to exert ‘wankertude’ yourself – but this should idealistically be done to make others feel better rather than sooth your own egotistical nuances.

I’ll say it again – be humble. My grandfather has always said to me ‘God, gave you two ears and one mouth. Use them in proportion’. How is this relevant? It means – listen more, talk less. Of course, you are going to have to talk about yourself – I am not saying that you shouldn’t. Rather, just don’t be the first person to bring up just how good you are orwhy you are so good. Such topics should be part of the conversion not the conversion. If they are the conversion – congratulations, you’re a wanker.

Unfortunately, law is often branded as an industry full of “wankers” and while many of us would kindly refute that association – it is the stigma attached. Relevantly, it falls upon the current group of “Generation Y’ers” to change this general perceived sentiment for the betterment of the industry. Indeed, I have met many of the “wanker” variety who are Generation Y’ers – but then I have met a whole range of really great people and this is what has primarily influenced my decision-making process in relation to what firms would be great places to work and what firms would be simply unbearable.

Unlike our elder generations – most of us now travel the world, have a greater sense of freedom and comprehend a broader range of issues at a younger age. This is simply a by-product of opportunities past from elder generations and which is in part why many Generation Y’ers yearn to have greater workplace flexibility. In my mind, technology has – and indeed should do so on a greater scale – allowed communication to reach an unparalleled advance. Yet, everyone must still work from offices when they could easily work from home. It would seem that such encouragement needs to be pushed into modern law firms to facilitate a growing younger generation who desires flexibility as an inherent facet of their new found sense of liberation.

But I digress – the point is that you need to determine what’s right for you. In order to me to ascertain what was right – I utilized the age old “beer test”.

The Beer Test

I have completed a few clerkships in my time and my thinking is this – everyone is at the firm because they got through the interview process and deserve to be there. This means you don’t need to psychologically profile every person you meet in order to ascertain some arbitrary ranking system in your head to stroke your own ego. The truth is – while marks matter, people matter more. If you can sit, slosh down a beer and have a decent conversation with your fellow clerks, partners and other staff – then you are heading the right direction. These are the people that you will be working with and these are the people that you really need to get on well with. If, in the alternative, you sit down and discover that everyone is drinking water and using words such as “jolly” or “merry” or “grand” – then I would think, you have hit another road block and you really need to think about whether you are in the right place.

I cannot stress enough – you have to love the people you work with and you have to love the practice area you work in. If you are lucky enough to get a seasonal clerkship offer – or even multiple ones – then be yourself. If you feel like you are walking on egg shells during your time at a particular firm – I can guarantee you that this firm is not for you. Forget whether it’s the perceived best, the highest paying, the most perks, the grandest library or the free city hotels – working there everyday will become a nightmare. Perks wear off, people do not. The point of the employment discovery process, in my mind, is to employ people who are enjoyable, courteous, passionate and who are generally great people to be around – this later point being the most critical. Now, I would hope that most people you will meet will possess such attributes, but the reality is – many will slot smoothly into the “wanker” category.

The lesson to learn in the entire clerkship process is “who not to be” rather than to model yourself off “who to be”. If you see a partner yelling at someone – or in fact any person yelling at someone – you have immediately learnt the valuable lesson of “who not to be”. This should also really extrapolated into everyday life and perhaps already is through the age old axiom of “walk a mile in someone else’s shoes before you pass judgment in your own”.

Law clerkships are no different – in learning “who not to be” – you are equally learning “where not to be” and “who not to be with”. Life is full of choices and you have the choice to not associate with such people. Many “old school partners” mostly take the attitude of “well, I did it this way so this means that you have too” – I would actually argue that we are now in the year 2010 and this no longer applies. You spend your life writing about changes to the law yet law firms seemingly don’t embrace such change – it’s hypocrisy at it’s best.

Cultural differences between generations are becoming undoubtedly wider. If you would like to sit and listen to your iPod while pumping out legal work – which I certainly do – should you be allowed? Should you be allowed to check Facebook or Twitter or CNN or TheAge or SMH or any of the multitude of websites you would otherwise check daily? Of course you should if it helps and ultimately assists your concentration and workflow process. Yet, some firms don’t like this either – or rather “frown upon it”. Again, at least in my mind, this is another sign that this firm may not be for you. If this is frowned upon – imagine what else will be in the future.

The Sobering Reality

Unfortunately, the sobering reality of law firms is that you need to secure a seasonal clerkship to really have any hope of ascertaining a position as a ‘Graduate Legal Trainee’. I say this simply because the law firms take the attitude that “Why would we employ someone we don’t know, who hasn’t worked for us against someone we do know, who has and who ‘just’ missed out on a priority offer?”. Evidently, whether such logic is right or wrong, the truth is that law firms will always offer priority positions to a select group of graduates and then make up the remainder from a pool of ‘overflow’ seasonal graduates. This may be a bit confusing – so let me explain.

Let’s assume ABC firm offers 70 seasonal graduate places across June-July 2010, December 2010 and January 2011 with the intention to employ 30 as ‘Legal Trainee’s’ in 2012. The priority offer system requires that ABC firm must put their offer on the table around Mid-February 2011 to these 30 students. Of course, many of these students have already mostly determined which firm they like best and out of the 30 priority offers that are made – only 22 students accept within the stipulated 24-hour time period and the other remaining 8 students head off to different firms. This means that there is now a pool of 8 students remaining who can receive offers. The remainder can then be sourced in mid-march from anywhere.

The “from anywhere” can mean ABC firm can assess all the applications it received for graduate recruitment and determine who they want to give these remaining 8 offers too. Relevantly, the premise is ostensibly that the firm is not going to hire people who haven’t already worked at the firm and rather direct their attention to those seasonal recruits who “just missed the priority offer cut”. Logically, ABC firm has ranked the 70 seasonal graduates from 1 to 70 in order of their preference, so the offers are most likely to sent to the remaining students who haven’t received a priority offer from ABC firm. Many of students 30-70 in turn may have already accepted offers at other firms – and it’s my understanding that firms know of this before the mid-march date so they are able to basically “cross-off” from the list those who are already employed under the priority offer system at different firms – providing them, and all other firms, with a ‘remainder list’. This basically means that unless all 70 seasonal graduates received and accepted offers under the priority system – they are going to preference the 8 remaining places to those seasonal clerks who ‘just’ missed out ahead of any “outside” person who the firm has never met.

Does this mean I am screwed if I don’t get a clerkship?

Of course not – but is does mean that you are going to have to reassess your plans. You can do the Leo Cussen program and get admitted within 6 months or so – the only catch being that you have to hand over the cash to do it yourself. On the flip side, if you don’t get any clerkship offer or want to do the Leo Cussen program – you can quite easily find a small firm and work under a smaller firm until you are admitted and then look upwards from there. Another route to explore is that of becoming a barrister but you basically have to be admitted first – which means if you don’t get into any firm – you must work in a small firm or do the Leo Cussen and then go down the barristerial road from there.

In my mind, the best alternative is simply to go and work in-house at any business – large or small – that is willing to absorb you into their legal department and pay your training fee’s. This is really great option for you if you don’t get an offer to join a legal firm or simply would rather work in-house instead. Relevantly, it’s even more useful in some regards if you like a particular area of law and the whole ‘client-servicing’ aspect of law isn’t for you. Find a business in an industry you really love – finance, technology, fashion, engineering, mining … the list goes on – and send them a letter asking for clerkship opportunities. The results are often surprising fantastic and very rarely explored by legal students.

The ‘reality’ aspect of clerkships – putting aside pure academic merit and a side dish of ‘wanker’ – is that if you know people who do law, or know people who know people who do law – either through family connections or through networking – you need to start having lunches with these people. In some regard, law has an inherent degree of nepotism in its veins which always rears its head [ugly or not] through clerkships and graduate applications. Why is this so? Simple. It’s directly correlated to the fact that law firms are businesses, who are very much in the business of making money. They can only do this by employing graduates who have large networks that ultimately bring new business to the firm and generate new income. Income generation is the lifeblood of any business and the larger your network, the more clients you bring, the more favorable you appear in the firms eyes. Basically, your marks can be average – but if you are best friends with the top 200 rich list – ‘welcome to the firm’.

Surely, new business is not expected from a graduate? No, it’s not. But if you hope to stay in law your entire life, then you better start making more friends – because networking and new business generation is going to quickly shoot you up the law firm structure tree.

Ultimately, the question to ask is “Who Are You?”

Yeah, queue the Lion King. The reality is – what matters to you ? If you are happy to take what is served and enjoy the law so much that social life means nothing – then you will quickly discover that some firms will absolutely love you. If on the other hand, you love life so much that you really don’t like working – then perhaps law isn’t for you at all and I would think this would be reflective of your genuine nature. Do what you want to do – not what you think you should be doing. I have spoken to enough people who discover this far too late in life.

Follow what makes sense to you really – the law provides a great base to go and do anything – whether a law firm fits into this equation is up to you. In the alternative, go and work at a firm for a period of time and then leave for greener pastures if this is really what you want. Start a business, go travelling, work overseas – but don’t start a legal career for the sake of it.

Clerkships matter – but people and life in general matter more. If law is for you – then if this article has attempted to guide you in any regard realize early in life that people matter most – not the firm, or the bragging rights, or associating with “wankers” or the other multitude of aspects which come with being a lawyer. Pick people over any aspect of working at a firm – people drive your working environment, the culture and ultimately satisfaction in employment. After all, how many people with terrible bosses or co-workers do you hear say “I love my job so much!”. I think you’ll find the answer is none.

Saying you work at “ABC” – the best firm in the world – is great if it makes you happy and you accept you have a large amount of ‘wankertude’. Conversely, saying that you work at a firm with great people, do great work and have a great work-life balance is going to attract smart, passionate and like-minded people to you. Armed with such people, you can only go but one direction – up.

Best of luck :)

Feel free to contact me if you have questions – I’m a pretty nice bloke :P

Example Cover Letter – Here

All Things Law

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How to Answer Law Exam Questions

16/03/2010

Me

This is a page is a basic ‘how-to’ answer “Exam Questions”. Post anything in this discussion thread if you would like to add to this page and I’ll gradually collate it all into this page when I’ve got time.

Most critically to all this – I’m no expert :) – however, here is a example of this list in practice with both a hypothetical and direct legal response (ignore the content, look at the structure).

Basic Aims

  1. You understand the legislation.
  2. You understand the common law.
  3. You can interpret it.
  4. ….

The rest of this post has been moved to All Things Law.

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