Blog Ipsa Loquitur

This is an actual law firm; they take personal injury cases and advertise on the New York City subway system, and probably on TV and the radio, too. I’m glad someone finally understands my pain.

Seriously though, personal injury attorneys may be about as reviled as lawyers come. I suppose District Attorneys with political ambitions are probably unpopular among some segments of the population, but it’s much more likely that I just watch(ed) too much TV (before law school). Put aside your abject outrage for a bit, Dear Reader, and consider what function a personal injury attorney serves.

Think of the circle of life: plant makes fruit, bird eats fruit, larger bird eats bird, snake eats large bird, mammal eats snake, dinosaur devours mammal, shark with jetpack eats dinosaur, jetpack runs out of fuel, shark crashes, worms eat shark’s corpse, and worms nourish soil for plant. ((I was a sickly child and absent for most of my 4th grade biology class. I’m pretty sure this is how it goes.))

In the same way that every creature in the life cycle plays a part in propping up the enterprise as a whole (until the inevitable nuclear holocaust caused by SkyNet), the personal injury attorney plays a key role in our society. Sure, firms don’t want to run afoul of consumer protection laws, but they’re similarly skittish about running afoul of lawsuits. Laws make it a Bad Thing to sell some kinds of unsafe products, lawsuits make it an Expensive Thing.

And, of course, the counterargument goes that having an army of lawyers sitting around waiting for your company to get sued is an Expensive Bad Thing in itself. Worse, it’s one which makes your safe products more expensive, because you have to offset your costs of keeping all those lawyers around.

Like just about everything in the world, I’m going to go out on a limb and suggest that the optimum outcome lies somewhere between “everyone should sue everyone for everything ever” and “no one should sue anyone ever again.” (This is the boldest claim anyone in the history of the tort reform debate has ever made.) But we definitely need more funny commercials:

Frankly, I’m glad there’s a firm injecting some levity into the discussion and reminding folks that not all personal injury attorneys want to sue everyone. These conversations are so damn heavy all the time. They’re totally harshing my mellow, maaaan.

It’s not the world’s most accurate resource on lots of things, I’ll concede. But do you know how much a subscription to Helicopter Prison Escape Quarterly costs? It’s not worth the expense, in my expert opinion. Just go read the Wikipedia article. My favorite on the list is Pascal Payet, who has apparently escaped from prison in a helicopter three(!) times.

Just think of the Wikipedia articles in fifty years: the List of Jetpack Prison Escapes is waiting for us, in the future.

Remember that iPhone app a while back that sold for $1,000 and didn’t do anything other than show people that you spent $1,000 on a single app? That crazy idea netted some programmer $5,600 before Apple took the program down, to the mixed delight and horror of the collective internets.

There’s a new kid in the $1,000 iPhone app club, though. And this one is nowhere near as nonfunctional as the last one. The program in question is called “BarMax,” made by a company of the same name. BarMax (the company) offers bar review courses for recently-minted J.D.’s who hope to pass the California Bar Exam. Courses in New York run about $3,000: the idea that you can get the materials you need to pass for a mere thousand dollars sounds dirt cheap.

I found the sticker shock of an iPhone program amusing, especially considering how reasonable it is by bar review course standards; doubly so, considering that it’s dwarfed by the the cost of law school itself. Hell, we’ve all mortgaged our futures to get here. What’s another Cleveland between friends?

The patent system is designed to promote the progress of the useful arts and sciences: Congress is given the authority to do crazy, un-capitalist stuff like give an inventor a monopoly on his shiny new “machine that peels potatoes in the shape of Hitchcock’s silhouette.” Oh, sure, we limit the time to a couple of decades, but it’s an iron-clad right to hock those tater obliterators (When my legal career fails to materialize, I’m inventing this and laughing all the way to the bank.) without limitation, right?

Not exactly.

A recent case involving Microsoft’s popular Office software nicely illustrates the difference between (1) a right to sell your invention and (2) the right to exclude others from selling your invention. At first, they both might seem like monopolies: if you patented an invention, you’re the only one with the right to sell it. However, when people have patents that slightly overlap one another, you run into problems.

In the finest legal tradition I have to offer, consider this hypothetical. Abel invents a new kind of chair; it’s pretty cool, and he patents it. Later, Cain comes up with a way to make Abel’s chair recline. (The patent system allows for experimentation and tinkering with other peoples’ patented inventions.) Cain can still get a patent on his invention, even though it involves Abel’s chair; but if you’re the King of Patents, (The President has yet to appoint anyone to this position, strangely.) what do you give him? Does he get that right to make and sell the chair, or that right to exclude others from making the chair?

Giving Cain a right to make and sell the reclining bits attached to the actual chair that Abel invented would be punishing Abel for not inventing enough, right? If Cain can sell a reclining version of Abel’s chair, Abel will have a hard time selling his own version. (Ostensibly because it’s more boring than Abel’s. I don’t know. Work with me here: pretend that we’re talking about things more exciting than chairs.) We don’t want the patent system to tell Abel to come up with (1) a new chair, (2) a reclining version of that chair, (3) a flying version of that chair, (4) a time-traveling version of that chair, and so on, or risk losing his ability to sell his modest chair as soon as one of those better chairs is invented (and patented) by someone else.

The solution the patent system comes up with is not to give an inventor an exclusive right to make and sell. Rather, we give an inventor the right to keep others from manufacturing the invention. This neatly sidesteps the issue of whether Cain should even be able to get a patent on a reclining version of Abel’s chair. Give Cain all the patents you want: all he can do is keep Abel from making reclining, flying, and time-traveling versions of his boring chair. Abel, in turn, keeps Cain from making the “chair” bits of the “reclining chair” — these bits can be safely assumed to be essential to customer satisfaction. Without them, all Cain is really selling is a footrest, a lever, and some gears. The two gentlemen will have to resort to some other means to settle their stalemate.

Thus, the patent system lets you invent something and prevent people from using it, even if you can’t use it yourself.

What Microsoft has been enjoined (the legal term for “prevented by a dude with a powdered wig”) from doing is selling Microsoft Office, which has a feature that lets it open and save something called an “XML” file. As it turns out, a company called i4i already owns a patent on this specific way of handling an XML file. Even though Microsoft invented a fancy chair, (one that opens DOC files, and TXT files, and has an animated paper clip ask me if I need help every five goddamn seconds) i4i has invented the simple chair.

The inventor of the simple chair (i4i) can keep the inventor of the fancy chair (Microsoft) from combining the simple chair (XML plugin) with the fancy bits (everything else Microsoft Office does), and selling the fancy chair (Microsoft Office as it existed last week). Which is exactly why Microsoft had to pull copies of their software off the shelves last week.

Just like 1910, 1810, and so on back to 1110. I’m not sure if anyone said 1010, as they were probably too busy running around with giant swords and slaying orcs to worry about calendars. At least that’s what all my history books said.

This year is going to be pretty cool. To celebrate, I’ve compiled a list of things that we can expect out of this fledgling year:

• January: The longest eclipse of the century will occur over the Indian Ocean. Also, I will write this blog post. Both of these occurrences were foretold by the Mayan Calendar.

• February: The Winter Olympics kick off and end. I really look forward to seeing how the icebergs affect Michael Phelps’s backstroke.

• March: Through the use of the Stargate, the evil aliens known as the Aschen will attempt to make the human race extinct.

• April: Nothing important happens. I don’t know, someone’s probably going to sue someone or something. Oh, and my last law school class ends.

• May: I get my J.D., and make everyone call me “Doctor.” I should probably just have put another joke about Michael Phelps here.

• June: World Cup! Also, I start studying full time for the Bar Exam.

• July: World Cup! Also, full-time studying for the Bar Exam comes to a dramatic conclusion in a two-day essayfest.

• August: “Local Man Killed Burning Old Outlines and Highlighters in Post-Exam Catharsis; Outlines in Stable Condition.”

• September: Ex-law students everywhere wake up from their post-bar hibernations.

• October: Ex-Law students everywhere hedge their bets by taking the October 2010 LSAT under fake names, in an attempt to make law review on a second pass through law school.

• November: Bar Exam results come out. This will be the most frightened I will get checking a web page since that time I ran a Google search for my name after a particularly rowdy Spring Break in ‘04.

• December: I will finally get around to writing a second blog post this year.

Happy New Year, everybody!

There’s a very good explanation for why I’ve shirked my bloggy duties for eight weeks. I’ve been given a once in a lifetime opportunity to work at an unbelievably high level of government, which is all I really want to say at the moment. I’ll resume updates sooner rather than later, when I return above water to breathe air, as mammals are wont to do.