Category Archives: Legal practice

Which is more important – experience or ability?

Everyone has to start somewhere. In entry-level jobs, the candidates tend to have limited experience, so an interviewer is inevitably focused more on ability, and potential, rather than their track record. Academic achievements sometimes get undue prominence, simply because there is nothing much else to go on.

The more senior the role, the greater and broader the expectations on the candidate. A senior associate in a law firm may be expected to have have several years’ experience of practising law, interacting with clients, managing projects, and so on. There is more data on which to assess whether the candidate is good at the technical aspects of the job, at getting on with clients and colleagues, at working hard, and at achieving the client’s objectives. Candidates for partnership need these skills but, depending on the firm, they may also need an ability to run and build a business, work with fellow owners, manage budgets, hire and fire, and so on.

It doesn’t stop there. IP Draughts has recently applied, unsuccessfully, for two part-time roles chairing organisations in the legal field. He thought he had the ability to do both jobs well – he wouldn’t have applied otherwise – and that he had relevant experience. But it seems that his CV lacked certain elements that were considered important. Sometimes, these elements are not fully brought out in the job specification and only become clear when the recruitment panel considers the candidates who have applied.

For one role, the feedback after the first interview mentioned various desirable traits. On several, he thought he had a strong or reasonable case. The one on which he probably had least experience, and which had only briefly been discussed at interview, was “holding the Chief Executive to account”. It is true that his various chairing roles haven’t included that responsibility, though he does have experience of managing people. Whether this means he couldn’t have performed that role well is, of course, a different question.

For another role, the recruitment exercise was re-run without interviewing the candidates who had applied the first time. The stated reason was that the candidate pool wasn’t sufficiently diverse to enable the recruitment panel to make a choice. This sounds, of course, like a polite way of saying that they didn’t like any of the candidates.

But taking it at face value, what does it mean? Are white, middle-aged men no longer suitable candidates? Having gone through compulsory diversity training at the Law Society, IP Draughts is aware that diversity comes in many forms. If he had known that this was going to be an issue, he could have laid it on thick about how his parents left school at 15 and 16, how he was the first person in his family to go to university, etc. But this wasn’t one of the stated criteria when he applied. As a good lawyer, he answers the questions that are asked, and isn’t so good at anticipating and answering the questions that are not asked.

IP Draughts’ message for anyone applying for a job (including our current vacancy for a trainee) is that you just have to give it your best shot, and hope that the job advert is an accurate reflection of the selection criteria. Beyond that, it is out of your hands. We all experience rejection, and we just have to keep plugging away.

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10 reasons not to become a lawyer

By all accounts, Thomas More was a good lawyer and good trade negotiator in Europe (a skill that we need now) but was less successful dealing with his boss.

In the last few days, there has been a discussion on LinkedIn about how difficult it is to qualify and practise as a lawyer, and how certain individuals have been successful despite the strong advice they received from careers advisers  and others to avoid this path.

IP Draughts’ view is that is important to be realistic about one’s chances. And about the opportunities that a legal qualification may provide, even if the career path doesn’t end up with you becoming President of the Law Society or Chairman of the Bar Council.

IP Draughts recalls the very strong advice he and others received, as students, to avoid the Bar. Often this advice was from practising barristers. The underlying message seemed to be that the chances of becoming a successful barrister were very low, and unless you were extraordinarily talented and had enormous reserves of resilience, you should find an alternative career path. The advice was kindly meant, but usually ignored, including by IP Draughts.

The statistical unlikelihood of becoming a practising barrister was emphasised during IP Draughts’ Bar Finals year (now the BVC), when approximately 1,500 students were crammed into a building off High Holborn that was designed, so he was told, for 1,000. The 1,500 had already survived one whittling process, as the numbers applying to the Inns of Court School of Law were a large multiple of the numbers accepted. At the time (the early 1980s) only a small number – a few dozen? – of the people who completed the Bar Finals course were taken on as tenants in chambers each year.

Recent complaints about the law schools taking money off students who have no hope of qualifying seem to imply this is a recent phenomenom. IP Draughts’ experience is that it has been going on for generations, at least on the barrister side of the profession.

The Bear Garden, part of the Royal Courts of Justice

As it turned out, IP Draughts was successful in obtaining a pupillage, after interviews with several chambers. He just ‘clicked’ with the barrister who was interviewing him, on a day when he (IP Draughts) was on good form. Probably rightly, the chambers didn’t offer him a tenancy at the end of his 12-months pupillage. Although he received some good feedback about his written work, and generally got on well with clients, he wasn’t sufficiently comfortable in his own skin for the performance levels required in court, in chambers, and in the clerks’ room (the biggest bear pit of all). About half of the pupils in IP Draughts’ chambers obtained tenancies, some in other chambers after further periods of pupillage.

The contrast, when IP Draughts obtained a job in industry at the end of his pupillage, was astonishing. Overnight, he went from being a junior know-nothing to the in-house legal expert. Three years later, there was another major shift, when he joined a firm of specialist IP solicitors.

With these experiences in mind, IP Draughts offers the following 10 reasons not to become a lawyer and, in some cases, not to spend money on obtaining legal qualifications. (The money was less of an issue in IP Draughts day: first degrees were free of charge, and the Scottish Education Department exercised their discretion to pay for IP Draughts’ Bar Finals course to qualify as an English barrister, for which – 35 years later – he remains both surprised and grateful.)

The purpose of this list is not to dissuade anyone from pursuing a legal career, but rather to ensure that the would-be lawyer goes into the process with their eyes fully open to the risks. If you are new to the legal world, some of these points may not be obvious.

  1. Are you bright enough and can you look objectively at yourself? Sorry, but it has to be said: hard work is not enough. You need to be bright – well above the average for graduates. You also need to be clear-headed and objective in assessing whether your level of intelligence is sufficient for success as a lawyer, particularly in the areas of comprehension, reasoning, analytical and communication skills. Many people find it hard to be objective; if you can’t do this, you are unlikely to make a good lawyer. As this blog has previously commented, many job applicants don’t seem to have the requisite skills.
  2. Do you care the right amount about the law? If you intend to practise as a laywer, it is important to be interested in law as a subject, but also to regard it as a professional ‘tool of the trade’ for providing a professional service, rather than an end in itself. It is essential to understand and uphold the ethical and professional standards of the legal profession. But too much interest in law for its own sake can get in the way of providing a professional service. If you want to be a ‘pure’ lawyer you may need to go into academia or find a role where the law itself is the central focus, eg working for the Law Commission. Equally, if you just want to earn lots of money and couldn’t care less about the law as a subject, becoming a lawyer is probably not the best route to follow.
  3. Are you comfortable with process work? There are several trends. Increasingly, legal jobs are becoming automated, e.g. law firms use office templates for contracts much more than when IP Draughts qualified. And some legal jobs are all about the process, with limited scope for pure legal work. Whether in the field of M&A, conveyancing, company formation or financing transactions, many law firms make their money from their reputation in following a process, rather than for their legal expertise. IP Draughts has been accused of practising as an artisan, as though (to follow an analogy) making individual, hand-crafted loaves of bread is a quaint irrelevance in the 21st century, compared with the mass market, factory-production of sliced white. But even he gets involved with work where processes are important, eg in the field of data protection. Newbie lawyers need to be okay with following processes, or find themselves a niche where this is less important.
  4. Are you comfortable working in a hierarchical environment? Nowadays the world of law is not quite as rigidly hierarchical as in the famous Class sketch from the 1960s. But there are still areas where it is expedient to “know one’s place”. When IP Draughts first started in practice, if a partner and associate attended a client meeting, it was not unusual for the associate to be entirely silent for the entire meeting. Some clients expect to deal with a partner. Some lawyers are, regrettably, very old-fashioned in their social attitudes. Some judges are unpleasant to counsel and ‘put them down’. It gets better over time, but some of these attitudes remain. You don’t have to be like that, but you need to be able to cope with that type of environment, if you encounter it.
  5. Can you work with other lawyers? Linked to the above point, are you comfortable working with other lawyers, including judges before whom you may appear in court? IP Draughts has found that, in general, IP lawyers are a good bunch of people, probably better to deal with than the average lawyer. But some are hard work.
  6. Can you work with (non-lawyer) clients? In his brief career as a barrister, IP Draughts found that he was better at working with clients in the corridor outside the court room than in standing up in court before the judge and arguing his case. Nowadays, with greater experience and maturity, he is comfortable dealing with most people. Depending on what your legal role is, you may have more or less exposure to commercial or private clients, or to other lawyers and judges. Are you good at dealing with non-lawyers? If not, certain areas of law will not be good for you.
  7. Do you have enough stamina and resilience? You may have to fail a few times in your chosen ambitions, and move on, before you achieve what you want and what you are suited to do. Some people sail into their chosen careers but most of us do not. There are more forgiving environments than the law. And in some legal work environments you may find yourself stretched to the limit, in terms of the amount of work you are asked to do. For example, US law firms have a reputation for paying well but pushing their junior lawyers to their limits. Do you have enough stamina and resilience for the law?
  8. Can you afford to become a lawyer? Nowadays, students take on debt when undertaking university and vocational courses. There is no point in doing so unless either (a) you have a real vocation for becoming, in this case, a lawyer, or (b) you will make enough money in practice to make a decent return on your investment. Which leads on to:
  9. Will you make enough money? The range of earnings of lawyers is large – much larger, say, than that of airline pilots who are mostly within a fairly narrow band. You may be earning less than the minimum wage, trying to keep a small legal aid practice afloat, or you may be a millionaire partner in a leading City law firm. Most of us are somewhere between the two, nearer the former than the latter. If you are at least partly motivated by money, what are the chances of being well-off? The public perception of lawyers’ incomes is often very ill-informed.
  10. If law is a qualification rather than a career, are there better alternatives? If you are planning to qualify as a lawyer but not practise as one, why do you want to qualify as a lawyer? Are there alternatives that may be more suited to your circumstances or make you more attractive to an employer, e.g. in some cases, doing an MBA? The traditional status of a legal qualification may not count for much in (some parts of) the modern world.

 

 

 

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Clinical trial agreements: thriving in ambiguity?

IP Draughts has recently advised several clients on clinical trial agreements (CTAs) and related contracts, including manufacturing agreements and agreements with clinical research organisations (CROs). The experience has left him reflecting about how this area of practice is an odd mixture of precision and vagueness, of formal procedures and finding ad hoc solutions, of strict regulatory compliance and muddling through the best one can, and where the scientific values of accuracy and taking a long-term view often run up against a commercial need to advance one’s product through trials ahead of the competition and before the development money, or investors’ patience, runs out.

In the UK, there is also sometimes a contradition, not found in some other countries, between the commercial aspects of running trials and paying fees to a hospital, and the non-commercial values and attitudes of National Health Service (NHS) hospitals and the people who work in them.

Instances of these contradictions include:

  1. Worldwide documentation. The need to comply strictly with national or regional (eg EU) regulations governing the conduct of trials, data protection and privacy, freedom of information, insurance and indemnities. But some of these regulations are complex, subject to change (eg EU data protection regulation), and vary between countries, while many clinical trials are conducted on a worldwide basis, using a single set of documentation wherever possible. Some of the language used in this documentation has clearly been designed under a different regulatory system to the one in which it is being used.
  2. Different skill-sets. The contracts that one encounters usually attempt to be in alignment with the regulatory system with which the drafter is familiar, at the time of drafting. But often they are drafted by non-lawyers and/or negotiated by non-lawyers, and used for several years without substantive review. They can and do end up with incorrect, misleading or outdated references to regulatory compliance, e.g. referring to guidelines rather than the relevant law, using terminology designed for a different type of trial, or a trial in a different country, or incorporating contradictions between obligations in documents designed for the same trial by different professionals, e.g. the Protocol (medical and ethical drafters), the Technical Agreement (regulatory and manufacturing drafters) and the CTA (financial, commercial and, one hopes, legal drafters).
  3. Poor source documents. This blog has previously commented on some of the oddities in the model NHS CTAs, e.g. the limit of liability for deliberate breach to twice the contract price. IP Draughts finds it difficult to believe that this strict limit, which he has never encountered in any other contract in over 30 years of practice, would be upheld by a court. Though he has no case authority directly to support this argument, he wonders whether a court would find such a limit unenforceable under the Unfair Contract Terms Act 1977, in view of the need for liability terms in written, standard terms of business to be reasonable. There are plenty of other examples of oddities in the NHS CTAs, which seem to be have been driven by commercial or financial priorities and to underplay the importance of clear, accurate, and legally-valid drafting. And yet he is told that the template CTAs in use in many other countries are much worse than the UK templates.
  4. Varying quality and availability of advisers. It is sometimes difficult for trial sponsors to find advisers and consultants who have significant experience of clinical trials and the associated legal issues in the jurisdiction in which the trial is taking place. For example, one of IP Draughts’ clients is currently looking for a legal adviser in Finland. Is any reader able to recommend someone suitable? A separate issue relates to CROs. Although he has not studied the subject in depth, IP Draughts has the impression that the market for CROs is dominated by a few international providers. He has heard stories of some large CROs taking weeks to respond to requests and being very bureaucratic in their approach.

The skilled clinical trials manager learns when to insist on strict compliance with the rules and when to bend, when to take one’s time and when to rush headlong, and when to stick and when to compromise in contract negotiations. It is not an easy task. In the UK we seem to have plenty of people who have these skills, and a thriving eco-system of life-science companies, service providers, hospitals, universities and regulators.

Whether this eco-system will survive Brexit is yet to be seen. There is a real danger of damage to the lagoon, its coral reef and its colourful species of fish.

 

 

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Skill set for transactional IP lawyers

Are the skills required for an IP litigator different to those required for a transactional IP lawyer? And are the skills for the latter different to those required for an M&A lawyer? What has happened to the general commercial practitioner who can turn his or her hand to anything that comes through the door, of a contentious or non-contentious nature?

Recent posts on this blog have focussed on drafting techniques, but they are only a part of the overall skill set required by many lawyers who advise business clients (using the term “business” loosely to distinguish from consumers).

The skills and attributes that IP Draughts tries to help his junior colleagues develop include (some of these overlap, and in no particular order):

  1. A foundation of technical accuracy, developed by continuous learning. Our UCL course on IP Transactions, as well as the Oxford diploma course, helps to supports this long term objective.
  2. Drafting skills, in commercial contracts and more generally in legal documents including notes of advice.
  3. Clear and purposeful communication with clients and others. The purpose will vary, and in individual cases the communication may need a particular mix of (a) analysis of what is needed, (b) organisation of material, (c) helpfulness, including understanding how the intended reader processes information, (d) conciseness, (e) completeness and accuracy, (f) bullet-proofness, (g) advocacy, (h) directing or recommending, etc.
  4. Ethical conduct and regulatory compliance.
  5. User-friendliness.
  6. Negotiating skills and tradecraft.
  7. Recognition of the different roles, character and temperaments of parties and understanding their needs and priorities.
  8. Risk management.
  9. Mutual cooperation in a supportive working environment.
  10. Self-motivation and motivation of others.
  11. Participation in the wider community of lawyers and clients, eg through writing, teaching, committee work.
  12. A passion for excellence in all of the above.

The skills for commercial litigators will overlap with the above list but include other items. IP Draughts sometimes gets involved at the margins of litigation, eg knowing how to select, instruct and manage a barrister, or how to write a letter before action, but rarely gets involved in the core activity, including working within the civil practice rules and directions.

Has IP Draughts missed anything important for a transactional IP lawyer?

 

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