Twenty Years In Civil and Criminal Practice Equals One Cyberlawyer
Since my admission to the California Bar in 1987, I have put in over twenty years practicing law. I have been a securities litigator, a trademark enforcement lawyer, a plaintiffs personal injury lawyer, a prosecutor, a federal public defender, and then, quite surprisingly, the lead lawyer for the recovery of Sex.Com, the world's most valuable domain name. After accomplishing that feat over the course of twenty months, lots of people assumed I was an Internet lawyer. That was not entirely accurate, however. I won Sex.Com by using old school principles, such as “thou shalt not steal,” and “my client was first in line.” I've always been inspired by Joe Jamail's summary of the trial lawyer's art: “I just catch liars.” By Joe's standard, I've been a trial lawyer for more than a few years. But that's not the same as being an Internet lawyer, which had become my goal, for the near term.
So I took about a year away from work, started digging, not just into the law, but into the life of the Net. My favorite activity was exploring the latest business model for webmasters, downloading the contracts, checking out the program features, and evaluating whether anyone could actually make any money. I directly researched the contracts governing online schemes involving ebooks, affiliate programs, free websites, free hosting, credit card processing. I scanned the news for clues to the emerging legal battles on the cyberfrontier, I got magazine subscriptiions for everything from the Harvard Business Review to The Progressive, from American Lawyer to Wired, and signed up for free intellectual law resources that kept starting up, trying to track the wild phenomenon of the emerging universe of Internet law, monitoring the emergence of new legal doctrines like astronomers vying to name a new constellation. To educate myself as to what the law already had to say on the issues I felt were core to the emerging body of Internet law, I set myself the task of writing Charles' Primer, which it is now time to edit extensively. Please enjoy it, but don't take it as legal advice, but rather as a starting point for research and discussion.
Thank you for visiting my website. I built it just for you, and if I can be of any assistance to you, don't hesitate to call me at 520-841-0835. My company is Online Media Law, PLLC, based in historic Tucson, Arizona. I am currently licensed to practice in the courts of California, and consult on Federal issues in various venues. And now, without further ado, the history of my sojourn these last twenty years in the law.
Resume
UCLA Law School, Class of 1986
John Olin Fellow in Law & Economics: I graduated from UCLA Law School in 1986. While there I and about twenty other students received John Olin Fellowships in Law and Economics. The Olin Foundation then proceeded to introduce us to such free-market luminaries as Robert Bork (before his failed bid for a Supreme Court seat) and Steven Breyer (before his elevation to the Supreme Court). We were invited to become members of the Federalist Society, but the people starting it were such nerds that they got no traction. We also were taught basic economic theory by UCLA Professor Armen Alchian, to whom I am indebted for his crap-cutting insistence that all economics was common sense. Click here to read some of my writings on finance and economics.
Chief Comments Editor, FCLJ: To lighten things up, I worked on the staff and then as Chief Comments Editor of The Federal Communications Law Journal. I edited a couple of articles, but what I was best at was rounding up more people to join the FCLJ — my recruiting marketing campaign got us like forty new staffers — a great thing when there's lots of proofreading to do!
Founder, Lawpoets: I also created a student organization called Lawpoets, a loosely-organized gang of guys and gals who weren't wait around for the profession to crush their brains into pulp — we were going to drink and read poetry before our brains were pulped! We actually registered with Dean Barbara Koskella, so we could do bake sales and collect money for beer/poetry bashes at the law school. This put us on an equal footing with fancy lawfirms that also hosted munchies and booze events in the courtyard. We pulled off a couple of events, creating more guerrilla marketing materials up in the FCLJ office, then flooding the law school with our welcome blasphemies. Fellow UCLA 86-er Tom Brill and I started publishing “Furry Chiclets, A Lawpoets Creation” during our years working in LA. To see Tom and some of the other original Lawpoets, check out Furry Chiclets.
Exam Tutor for La Raza Law Students: After getting a disappointing string of “B's” in my first semester, I took an exam-taking class from Dr. Michael Josephson, who created the Josephson Bar Review course that he sold to Kluwer. Josephson's brilliantly simple method of exam-taking is guaranteed to improve anyone's exam score from a B to an A if they apply it. I applied it and aced every second semester exam, genuinely wowing some of my teachers. I shared the method with a goodly number of La Raza Law Students members, and I think some folks were really helped. Someday I'm going to teach a class or at least write a brief essay on the method, because it really works.
Exile on Sixth Street
Morgan, Lewis & Bockius: I graduated UCLA Law in 1986. Reagan was in office then, and credit-card interest was around 20%, and I had about twenty-thousand in credit card debt. It was the heyday of “junk bonds,” so guys like Mike Milken, Ivan Boesky, and Michael Levine were minting money with borrowed money and insider information. This robber-baron wealth was of course trickling down at least as far as the big lawfirms, so associate salaries at the big firms were rising when I walked into the market. After a summer of magnificent excess at Irell & Manella, I took an associate position downtown on Sixth Street at Morgan, Lewis & Bockius, then the fourth largest lawfirm in the world. The crash of '87 took more of the steam out of the commercial litigation market, so I left the megafirm of Morgan, Lewis & Bockius to work for a New York boutique litigation firm.
Reboul, MacMurray, Hewitt, Maynard and Kristol: I joined the local office of this New York City firm in a nice space down in the old Pacific Mutual Building, still on Sixth Street. While my boss was a good New York Democrat, and the two part-time mommy-track associates were fun to work with, all we did were trademark seizures for captive-client Louis Vuitton, and defending Mitsubishi Motors in car crashes, I started losing my hair, getting paunchy, and according to my wife, sounding like a conservative Republican. To reverse the trend, I started taking visits to the Superior Court downtown and watching trials during the afternoon. I was immediately struck by how simple and doable the work seemed. The trial lawyers were ordinary people, who put on their pants one leg at a time. I could do this.
One day while eating pizza and drinking Corona at Lamonica's across the street from my office, feeling like I was getting fatter, more conservative and more bald every minute, it occurred to me that I had forgotten something. Scratching my head for the answer, it came to me with a start! I had forgotten that I had intended to be a trial lawyer! I had intended to be one of the guys who wring verdicts from juries with impassioned arguments and deadly persuasion. Somewhere along the line, I had literally forgotten this goal under the more-than-sufficient pressures of being a litigator.
The Prisoner of the Twin Towers
To cure my dis-ease with the life of a corporate litigator, I took a modest paycut, agreeing to base my compensation on performance-based bonuses, and became an associate at the redoubtable plaintiff's firm of Mazursky, Schwartz & Angelo in the East Tower in Century City. My office on the Seventeenth Floor of the triangular monolith overlooked the Beverly Hills High School athletic field. Century City is a gigantic legal island between two great rivers of traffic — Olympic Boulevard to the south, and Santa Monica Blvd. to the north. From my secret lair in an underground parking garage I would emerge at all hours, a stealthy avenger, a trial lawyer on the hunt for justice. Working for MS&A was a workaholic's dream. Not only did I handle a changing caseload of dozens of personal injury and employment files, I covered five counties, and solo-tried cases in San Diego, San Luis Obispo, downtown LA, and Pomona. I usually had one full time secretary and two overtime secretaries cranking out massive volumes of paperwork that I signed in a flurry of printing, copying, faxing and mailing. Trial work in LA is paper-intensive. Sometime in 1993, it all came to a screeching halt. I lost an expensive trial, the partners had a sit-down with me and said they wanted to scale back my trial involvement, and I was not into it. They said they could hire two people for the price of me. I told them that if they could find two people who could do what I was doing, they should probably hire them.
Oregon Trial Lawyer
I left LA to fulfill a dream to relocate my family of five to a twenty-acre parcel of land near Ashland, Oregon. I got an Oregon Bar license in July 1993, and after discovering that I could expect to make about one dollar for every five I'd been making in LA, I took a job as a Deputy DA IN the Jackson County District Attorney's Office, prosecuting misdemeanors and the occasional felony. Think major poverty as the public servant commutes to his twenty acres forty minutes away in a remote valley, driving twisty mountain roads every day to go try cases in the Jackson County Justice Center. After a little more than I year, it surprised no one when I embarked on a somewhat celebrated career as the pony-tailed trial lawyer of Jackson and Josephine counties. These are some real rough and tumble courthouses, and by that I mean that often, the judges will administer a little whipping to the new boy. But when they saw how I argued my position honestly, put on an efficient case, spoke directly to the jurors, and won verdicts, I always got their respect. To this day I tell you, I love Jo County juries, which amazingly almost always either gave me a good result, and one really great hung jury. Jackson County juries, on the other hand, are mild and passionless. Portland juries are actually my favorites.
Federal Criminal Defender
In 1995, I became the first Spanish-speaking lawyer on the Federal Criminal Justice Act panel on the Southern Oregon panel, representing indigent defendants in the Oregon US District Courts. I saw a lot of prisons, and was able to apply my Spanish extensively. I can only say good things about Steve Wax, the Federal Public Defender for Oregon — truly a gentleman of the highest water. While working as one of his CJA Panel attorneys, he always supported doing the suppression motions — suppressing statements and confessions, suppressing stops, arrests, and searches incident to arrest, and best of all, moving to controvert search warrants. Nobody does that much, but you know what? They are fun. Every judge wants to delve behind the workings of some other judge's warrant-issuing process. Of course, in Federal work, you become a sentencing expert, or you're not much good at all, since everyone gets convicted. (Unless, of course, by some miracle, their lawyer is Craig Weinerman of Eugene FPD, who gets like all of the victories.)
Ah Yes, Sex.Com
In 1999, I ran into Gary Kremen, and together we transformed his theoretical interest in the stolen Sex.com domain name into a reality. In 2003, Gary and I scored a legal first: the Ninth Circuit Court of Appeals ruled that Internet domain names are personal property under California law. While that might seem obvious, given that Gary sold it in 2006 for around $14 Million, it was far from obvious back in 1999. As I previously mentioned, my own hilarious, insightful, and witty book, The Sex.Com Chronicles, is all written and ready for readers. Currently it is being circulated by my agent to publishers, but if you would like to read it, just click here to register, and instead of asking me a legal question, request access to the e-version of The Sex.Com Chronicles.
Domain Name and Cyberlaw Cases
Since doing the Sex.Com case, I've worked steadily in the domain name recovery field, recovering Hardcore.com and Milfhunters.com, and defending the owners of domains including Kazaalite.com and Arthrostim.com from UDRP proceedings and US District Court lawsuits. Domain name recoveries in Federal Court are considerably easier than they were before the Sex.Com case, but they still requires a certain level of expertise and familiarity with the underlying law and dynamics. Simple things like just serving a complaint on a person with an address in China, India or Korea, tend to stump lawyers unfamiliar with the domain name landscape. If you're a lawyer with a domain case, and don't know which end is up, just click here to register and I will consult with you on your case. I have a number of forms that have been tried and tested to get results in domain name lawsuits.
A Favorable Verdict On A New Government Tort
In August 2002, I obtained a $306,500 jury verdict in Benson v. State of Oregon. The Portland, Oregon jury awarded $300,000 for the emotional distress suffered by my client Roger Benson, who spent 43 days in jail after the Oregon State Police ID Section falsely delivered computer misinformation to California police, misidentifying Mr. Benson as a violent three-time felon. Mr. Benson's story will be the subject of a book about his ordeal and how he fought to regain his life and dignity after a terrible, Kafkaesque fate befell him without warning. Unfortunately, the Oregon Appeals Court reversed the verdict for Mr. Benson in an opinion that affirmed the validity of his claim, but objected to a judicial ruling at the close of trial. Mr. Benson was forced to settle the case after the appellate reversal for a fraction of the total verdict. He then sued Identix, the maker of the biometric fingerprint scanning machine that had caused the snafu, and the State of California for violation of the Information Practices Act. Mr. Benson was unable to prevail on either of these claims, for reasons that were neither just nor reasonable. The titled of my book about Mr. Benson will be, “The Man That Justice Eluded.”
Software and Media Licensing
Over the years, I've handled licensing of video and photo archives, and software licensing. There are all kinds of ways to monetize Internet content, but it takes clever, inventive people to do it. My friends at Mansion Productions have developed their MPA3 software business beautifully during the last six years we've known each other, and it's been really fun negotiating software contracts with companies like Hustler, Paycom, and others too big to mention.
Federal Litigation Consulting
I've had a steady stream of other cyberlaw cases that keep me on the leading edge of evolving developments in the in the field, and can contribute ideas, forms, and fresh writing to ongoing Federal Court litigation at the trial and appellate level. I consult on federal cyberlaw pending in any federal jurisdiction, drafting discovery plans, identifying procuring lay and expert witnesses, analyzing the admissibility of evidence, managing trial preparation. I also write appeals from U.S. Disctrict Court Judgments in civil and criminal cases. If you would like to consult about Federal litigation issues, please contact me at 520-841-0385.
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