Redline Presents

You have written and published two books on the subject of startups: Dead on Arrival: How to Avoid the Legal Mistakes that Could Kill Your Startup (2012), and 10,000 Startups: Legal Strategies for Startup Success (2022). Ten years separates the two. You have described the differences between the two books as follows:

There is good reason for our tendency to focus on the negative. If our cavemen ancestors sat around in a Zen state of mind instead of constantly worrying about saber tooth tigers, we might not be here at all. Evolutionary psychologists say our negativity bias was necessary for survival. It was that fascination with failure that launched my first book, Dead on Arrival.
10,000 Startups is not like that. This book is about the stories you do not hear about – the quiet successes: founders who worked well together; startups that avoided litigation; and products that complied with law and regulation. This is a book about the good legal planning that prevented problems from occurring. In this book, we will walk through the basics of good legal hygiene and how some of my startup clients and other well-known companies have paved a trail to success, partly by getting the law right. This book focuses on the legal strategies I developed over many years that increase a company’s chances for success.
What are some of the more major lessons you learned from the experience of writing the first book? How have those lessons informed your writing of the second book? Are you surprised at the pace of change in the intervening ten years, at least in certain aspects? What has been the most profound change in your mind?

The first book was more of an attention grabber since the title appealed to fear, which is a powerful motivator, but maybe not the best marketing tool. You may remember the 1970s Samsonite luggage television commercial in which gorillas tossed bags around to show how tough their luggage was. That was one of the best commercials of all time but, oddly, Samsonite’s revenues decreased during the campaign because people associated Samsonite with gorillas tossing their bags around. Similarly, I am not sure it was a great idea to be associated with a whole book of legal mistakes. Thus, my second book, 10,000 Startups, has a happier premise – legal successes.

The other thing that occurred to me while writing Dead on Arrival is that the same mistakes happen again and again, over and over. As noted in the book, I have practiced in many different industries, markets and geographies over almost 40 years, and see the same mistakes over and over. So the book is quite universal.

The basics have not changed over the past ten years. Delaware is still the king of corporations and venture capital is still the holy grail. We still need the same basic corporate structure, but the market has changed and some of the legal instruments have evolved. For example, SAFEs were new ten years ago; now they are standard. The tax law has changed (or in some cases, like QSBS, not) so that the case for a C corporation is even more compelling and the use of offshore companies less. The most profound change is happening right now, and that is automation, especially AI. I do not incorporate many companies any more (an online robot does it) and I rarely create a cap table in excel. That has created efficiencies but has also given the nuclear codes to non-lawyers, so I probably spend more time now fixing companies that forming them.

You have been practicing law since 1984. Is it safe to state that you have advised 10,000 or more startups in your professional career? What are some of the more memorable or notable startups that you've represented over the years?

Probably. I have certainly met with that many startups. I wrote about many memorable ones in my books. Some of my favorite clients did not make the book. For example, I have had a lot of low tech or no-tech clients. One of my favorite clients owned a chain of Asian supermarkets. The founder escaped from Vietnam in the 1974 evacuation and ended up in the US with no money or English skills. She eventually started a food market and grew it to many outlets and brought her whole family to the US where they all work in her stores. It’s a story of the American Dream. In a way, most of my startup clients are like that - people taking very bold action.

My least favorite but highest profile clients have been actors and entertainers. I worked in Hollywood long enough to discover that the “talent” views lawyers as cost centers rather than trusted advisers. Hollywood is what brought me to California and I stepped back into that arena long enough to know it wasn’t for me.

I have had mixed experiences with athletes. I represented some of the San Jose Sharks players at one time, which was fun since I went to law school in hockey country (North Dakota). I also ended up representing several of the San Francisco 49ers. I am not a football fan so it wasn’t that big a deal for me. One of the players invited me to the super bowl one year when the 49ers were in it (locker room access, after party etc.) and I declined because I wanted to take my daughter to a birthday party that day. He couldn’t believe it.

Anyway, in terms of startups, like I say in the book, the best ones are going to be the ones you do not hear about because they do everything right, quietly exit and keep their names out of the papers.

Recently, for the first time in my career, I had a client go public so I attended the opening bell ceremony at NASDAQ. When I was the Royse Law Firm, I had to hand clients like that off to a large firm long before a public offering. Now I can stay with them through the life cycle.

In 10,000 Startups, you wrote of your home state of North Dakota that it "has one of most modern corporation codes in the country."

You added, "Don't ask me why."

What brought you out to California?

Before California, I worked with a large law firm on Wall Street, for the evilest son of a bitch there ever was. One winter day, to punish me I suppose, my boss sent me to Los Angeles to assist a motion picture studio client with an issue. I ended up staying two weeks, spending every day on set, meeting movie stars, having sushi at the beach and enjoying the nice weather. As soon as I arrived back in New York I applied to take the California bar exam.

I interviewed up and down the west coast but settled in the Silicon Valley because of the lifestyle (surf, ski, bike, run etc) and because I could see that this is the center of the technology universe. I have never looked back.

In your book Dead on Arrival, you describe an encounter with "Craig" (not his real name), a rather eccentric founder of a startup in which your client, an angel fund, had considered investing. The meeting seemed to be going well, and a term sheet for an investment seemed in the cards. But then:

[A]s the meeting was coming to a close, the VC somewhat casually asked Craig what other interests he had—not as diligence but just to be personable. Craig started by saying, "Well, physics is my first love." We expected Craig to continue with a description of some arcane techie pursuit. "But my real interest is time travel," he continued.
Silence. The note-gathering stopped. The VC sat back down in his chair. He stared for what seemed like a long time.
"What kind of travel?" he asked.
"Time travel." Craig beamed, happy that someone wanted to hear about his personal interests. "In fact," Craig continued, "you might want to invest in it. I hope to devote a lot more time and attention to time travel. You see, it works like this …."
And then there we were, riding the crazy train.
Whatever happened to Craig?

His company did not get funded. I did not hear from him again.

The mad scientist type founder is a real thing in Silicon Valley. Investors get seduced by technology only to later find out that the founder is a terrible business person. I have many stores about that and I have fallen for it as an investor myself.

A few years ago, a very famous Silicon Valley personality invested in one of my agtech clients. I know the industry well, so I knew that the company’s tech was not that great compared to its competitors. It seemed that the investor should have been smart enough to know that too. After close, I asked the investor why he chose that company when there were so many others who had taken the tech further. He said that solving the tech problem was the easy part. The hard part was finding a company that had market penetration and my client had that. I suppose that his ability to recognize that is why he is the client and I am just a lawyer.

For tech lawyers advising startups, the following passage from 10,000 Startups was especially on-point, and what far too many inexperienced lawyers and founders don't understand:

If there is a moral to the story, it is that start-up companies have an unknown constituency (their future buyer) that is far more precise and demanding than they are. At some point, a company must start conducting its business like its potential acquirers in order to avoid being punished in valuation on exit.
What is the single most M&A-damaging, or at least, what is a common, "DOA"-level action, decision or omission that a startup has made in your experience?

The most common and unfortunate mistake is lack of documentation, and that is a DoA issue. Business people sometimes do not take formalities seriously and assume they can paper things later when they have more time or money. It’s sad when a company hits that perfect storm of the right team, the right tech and the right time only to fail because they didn’t document properly. This happens all the time and usually manifests itself when the parties cannot agree on percentage splits, or on vesting, or even on what IP the company owns. It’s the easiest problem to fix and the one with the worst consequences.

What videogames are you playing?

None since Angry Birds. My daughter plays enough for both of us.

What's your favorite lawyer movie or book?

John Grisham’s The Firm.

If you were forced to live and practice law other than in California, where would you most prefer to be?

I am licensed in 6 states and other than CA, I would go to Nevada if I were not here. I like the desert and mountains.

How did you find yourself specializing in ag tech law? What is it about that specialty that you find appealing?

I am from an agricultural state and my family was in the produce business. In fact, I used to earn money in high school and college by buying produce from local farmers and peddle it alongside the roads from the back of a pickup truck so I have some background in the business. And I have had a few ag clients even while working from Palo Alto. I was introduced to the opportunity in agtech at the restaurant/bar at the iconic Rosewood Hotel in Menlo Park by the mayor of Salinas about 12 years ago. He made a compelling case that ag was the next big frontier for venture capital and tech. It was a Eureka moment, and I immediately jumped in by creating a group called Silicon Valley Agtech. The goal of course for me as a lawyer was to develop a practice in the area, but I am also a huge enthusiast. Through SV Agtech, I have traveled around the world giving presentations and leading pitches and panels. It even allowed me to return to my former home of Fargo for a panel/presentation on the topic. The Covid lockdowns put an end to our live events but SV Agtech still exists today, albeit on a smaller scale. We still do an annual conference and maintain a large and active community.

You make a helpful distinction in 10,000 Startups between a "lifestyle" business and a "go-big-or-go-home" business (and those that are somewhere in the middle). What are these differences and how do they matter in terms of choice of entity formation and other salient decisions that founders must make?

When I first came up with that distinction the choice was tougher. Since then, the tax law has made it clear that the exemption from tax from gain on the sale of qualified small business stock (QSBS) is probably here to stay. Thus, I form far more C corporations than anything else, even though I am a tax lawyer and love limited liability companies (LLCs) and S corporations. Nevertheless, the analysis is fundamentally the same. A typical venture backed tech company will not have taxable income because they will reinvest any earnings into building good will or technology (so the two levels of tax on C corporations is less of an issue) and is more likely to exit through a stock sale (so the QSBS exemption his available). VCs look for high risk and high returns, and will only invest in C corporations, and they will expect to either strike out (a failure of the business) or hit a home run (make many times their money on a sale of the company). That is what I call go big or go home. That has to be C corp.

The lifestyle business aims for steady but modest returns for the life of the business. No VC is going to invest in a non scaleable business, and the founder probably is building the business for annual income and not a large quick exit. That is what I call a lifestyle business and we might choose a passthough entity like an LLC or S corporation for that company.

The tricky part is when we don’t really know what we are. The company could be a good profitable business on its own, or could take venture money and scale to become a huge success. In that case, we might form it as an LLC and convert it to a C corporation later if we attract the attention of a VC.

An especially notable passage of the book describes the launch of Royse Law in 2006:

In March of 2006, I took a deep breath, signed a 5-year lease for 2500 square feet in Palo Alto and launched the Royse Law Firm. It started with exactly one employee – me. My vision was to deliver a fully integrated solution that considered both legal and tax issues for corporations and their shareholders. It was my view that the law firms in Palo Alto had not done a good job of considering the interests of all the stakeholders in a company. The large corporate firms were good at company corporate matters but, as to the individual interests of the shareholders, not so much. I ran into Larry Sonsini, the founder of the well-known Silicon Valley law firm Wilson Sonsini Goodrich & Rosati, at a wedding and ran my idea past him. He agreed that there was a place in this Valley for a business tax lawyer so, despite the naysayers, I knew I was on to something.
Would you say that your focus on the individual interests of shareholders, and in particular, on tax law, are two of the more critical factors facilitating your success? It must be a rewarding practice, to be able to connect with clients engaged in the exciting enterprise of starting something new, at the individual level.

I probably form a closer personal relationship with my clients due to the depth and breadth of what I offer them. If they are building a startup for sale, I will often want to also ensure that they do not pay more tax on sale than they should, or that they plan their estates properly. That’s probably why many of my clients are serial entrepreneurs.

In 10,000 Startups, you have described how company counsel can sometimes become investors in early-stage startups.

My most successful client companies have been the ones that would not let their lawyer invest because there was so much demand from other investors. Generally, however, the upstanding, honest, and reputable VCs will let valued early supporters, like company counsel, who took a risk on a fledgling startup, into the round.
Have you had any positive or negative experiences (eg ethical considerations or practical experiences) that you can share with regards to taking equity in lieu of fees, in whole or in part?

In my early days of practice Silicon Valley lawyers would take equity for fees and we all learned the hard way what a bad business model that was. We then started taking equity in exchange for a delay or deferral of payment and that worked out well. So well that firms now will defer payment of fees even without equity, so the gold rush seems to be over. It can be a risky practice. For example, if I am advising a company and also investing, will I advise it to issue me a company friendly pre money SAFE or an investor friendly post money SAFE? I no longer buy stock or take equity in companies that I advise to avoid these issues. There are plenty of other fish in the sea.

When we did take equity, the negative experiences were the obvious (company failure) and the case where the VCs would not let anyone else into the round.

You convey an interesting observation about founder share vesting: the standard is 3-5 years (a standard you describe as a "fossil" and an "artifact of an earlier time"), but founders that do well and proceed to further funding rounds can expect mandatory re-vesting, and so the more likely vesting period is closer to 8 years. How often in your experience are founders able to demand that at least some shares be vested earlier?

Quite often. It would be a risky thing to unvest 100% of the shares on close since VCs are notorious for firing founders.

Particularly enlightening in 10,000 Startups is your evisceration of the notion that "non-binding" term sheets are harmless:

The good faith obligation to work toward a close is a sleeper. You may be thinking that, because the term sheet is non-binding, you can walk away at any time. It doesn’t quite work that way. The obligation to negotiate in good faith, while a very fuzzy sounding standard, has some real teeth to it, even if the term sheet does not specifically call it out. The founder that changes his mind could find himself in a lawsuit for bad faith refusal to negotiate.
Have you had any experience with founders suing the VCs for bad faith refusals to negotiate?

Not personally. The Valley is a small place and any founder that sues his investor may not ever have another investor. However, we have all heard about and read about these cases. In fact, it is a little surprising how far VCs will go in stretching conflicts and fiduciary issues.

You've criticized use of the phrase, in hard-fought negotiations, of "this is market":

When a lawyer argues for a term because it is market, it is because (i) the lawyer is inexperienced and doesn’t know any better or (ii) they have no real arguments.
I understood this passage in 10,000 Startups to mean that the lawyer in negotiations should rely on logic and reason, and not on a perception (often wrong) of the popularity of a certain clause or position. Of course, there are times when it's appropriate to express that a certain clause or position is so beyond the pale of what's customary that it's impossible for any reasonable person to accept it. Thoughts?

Importantly, “market” gives you a place to start a negotiation, not an end point. Every company is different and it is a bit lazy to just rely on “market” instead of figuring out what risks in a company should be addressed. For example, the market for SAFE discounts is 20% right now. That is a good place to start but if we expect a quick priced round, is that really appropriate? It is worth asking the question.

This is much more of an issue in M&A. Third parties publish market standards and norms, and software will even read documents and tell you what is out of market. But each company is different and may have unique risks or concerns that require specific fact informed representations, indemnities and covenants.

In the book you highlight the importance of accountants in the M&A context:

Accountants are super important to the deal given that so much is tied to GAAP …. If the sellers represent that the financials are GAAP, they had better be GAAP or the seller will have to pay. Surprisingly, even financial people (or people who think they are financial) do not seem to understand GAAP. A company absolutely needs a CPA to make this determination for them.
The fact that you are also a CPA must be extremely helpful to your law practice. How have you benefitted from that? Would you advise other lawyers in your space to consider the accountancy certification?

If law is the language of business, then accounting is the logic of business and being able to understand economic concepts is useful. I find the accounting background especially helpful in tax law since the concepts are similar and not particularly intuitive. Specifically, I think a lawyer has to understand accounting concepts to draft clauses that deal with economic issues. For example, working capital adjustments are accounting related and you cannot just punt to “GAAP.” Same with earnouts.

What was your most glorious professional moment?

Closing a solar deal in 2008. I had just opened my law firm and was hired to represent the company in a several hundred million dollar international financing/sale. The investor hired a large New York firm. The transaction was incredibly complicated and had almost every issue you could imagine. We had conference calls that started at 6 am and went past midnight, day after day. Since we were only a four person firm at the time, I was managing numerous other law and accounting firms from around the world to get the deal done. A large number of shareholders opposed the deal and I organized a shareholders meeting to deal with the rumors, which started out contentious and ended on a good note.

Within a year of close China decimated the solar market with cheap products and the company went bankrupt soon after. No one was sued so I consider it a victory.

Mac or Windows?

Windows

Who is your favorite Avenger?

Thor.

You've operated your own YouTube channel since 2010, with over 100,000 subscribers. What advice would you have for us lawyers who would like to start our own video channel? Is it a major time commitment or can it be done more manageably now with AI, etc?

I don’t think it is anywhere near that number of subscribers but yes it is a major time commitment, and only one small piece of the lawyer marketing puzzle. And yes hire help to do the technical aspects of marketing, but the lawyer must control the message and the marketing. Some parts of establishing your brand cannot be outsourced.

In 10,000 Startups, you quite memorably take a swipe at the perceived threat of AI replacing startup lawyers, in the context of an illustrative hypothetical of three co-founders that have approached you for advice on their new business:

These three founders did not have to come to me. They could have hired a robot or an artificial intelligence system to incorporate their company and draft their contracts. My friends in deep learning and AI assure me that an algorithm can replicate anything I can do, or soon will be able to. My friends tell me that an algorithm (let’s call him Al Gorithm) is the smartest lawyer in the room. I don’t know Al and I don’t care if he has rhythm but I doubt he will get this right. Based on my real-world flesh and bone, protoplasmic experience, I believe that this company has a high likelihood of having to deal with death or disability, an angry spouse, or a founder who wants liquidity too soon.
Sounds like you are not too worried about the likelihood of "Allie G" replacing us anytime soon, yes?

Not in my lifetime, but AI is gradually doing more and more of what lawyers do and law firms are going to have to adjust. I have long said that our whole industry is almost an accident of Enron/Worldcom/SOX because absent the major scandals of 20 years ago, we might have had multi-disciplinary practice take over the industry. We dodged a bullet. The next threat is AI and that is a challenge that cannot be avoided. The smart law firms will adopt AI in their practices and move upstream to areas that require more human judgement and interaction and less paper shuffling.

Flow (wu-wei) is a nirvana-like state of mental immersion marked by energized focus, full involvement, and effortless enjoyment in the process. Do you ever achieve flow in your law practice or elsewhere? How do you get there? How do you sustain it?

This might sound weird, but that is how I feel when I draft an LLC agreement (having done thousands of them). Otherwise, I achieve that state when I run and bike, which I do every weekend.

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

Probably my first boss back in Fargo. He was an irritable old Irishman but his approach to the law was as a problem solver. He cautioned me to be result oriented and not just task oriented, and taught me a way of looking at legal problems that suggested solutions that might not be apparent.

What books are you reading now?

Four Thousand Weeks. I just finished Die with Zero, Strength to Strength and Outlive.

Do you have any clients to whom you are extremely loyal, and yet drive you crazy? If so, what's your strategy (without revealing client confidences) for dealing with them?

I bill for hundreds of matters every month but I spend more time haggling over bills with one client than with all the others combined, and it has been like that for ten years. I don’t have any strategies for that.

Do you have any grinding axes about any specific policy or law? If there was one thing that you could change about that, what would it be?

Yes I do. This has nothing to do with my law practice, but last summer I was diagnosed with pancreatic cancer. A doctor said that my cancer is “uniformly fatal” and, under our US standard of care, he is probably correct. However, there are therapies out there that will help and may even be my cure but they are outrageously expensive and exceedingly difficult to access due mostly to the restrictive practices of the FDA. Many people like me will be spending a lot of time outside the country getting treatment that we cannot get here. Ironically, in my case, the treatment I will be getting is manufactured in California and must be shipped to a foreign country for administration.

We saw during covid that the FDA can approve a drug quickly if it wants to. In the case of cancer, it just doesn’t want to. My doctor assures me that the FDA is not conspiring to kill me with cancer. Perhaps not, but they certainly don’t care whether I live or die either. It’s barbaric.

Do you have any specific strategies for dealing with the stress of client demands and the rigors of a modern law practice?

I have a meditation practice which helps. Regular physical exercise also helps.
 

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

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

How did you become an advertising lawyer?
 

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

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

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

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

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

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

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

What kinds of projects are typically on your desk?
 

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

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

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

How have you found the experience?
 

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

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

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

What pro bono projects are you involved with?
 

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

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

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

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

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

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

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

If you were a book, you would be….
 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mac or Windows?

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

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

One serious and one not:

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

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

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

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

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

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

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

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

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

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

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

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

My Cousin Vinny.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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