From the litigation list: Mark A. Lemley

From my call for law professors who actually appear in trial courts, one commentator “nominated” Mark A. Lemley, a professor at Stanford. Even the most cursory examination of his law school bio and Curriculum Vitae shows why Lemley stands out.

Mark A. Lemley

Mark A. Lemley

Mark Lemley is the William H. Neukom Professor of Law at Stanford Law School, the Director of the Stanford Program in Law, Science and Technology, and the Director of Stanford’s LLM Program in Law, Science and Technology. He teaches intellectual property, computer and internet law, patent law, and antitrust. He is the author of seven books (most in multiple editions) and 142 articles on these and related subjects, including the two-volume treatise IP and Antitrust. He clerked for Judge Dorothy Nelson on the United States Court of Appeals for the Ninth Circuit

Outside of his teaching duties, Professor Lemley is a founding partner of Durie Tangri LLP. He litigates and counsels clients in all areas of intellectual property, antitrust, and internet law. His clients have included Comcast, Genentech, DISH Network, Google, Grokster, Guidewire, Hummer Winblad, NetFlix, and the University of Colorado Foundation. He has litigated in over 90 cases in his more than two decades as lawyer. He was recognized as one of the top 50 litigators in the country under 45 by the American Lawyer (2007).

Proving that a law professor can be a distinguished scholar and a distinguised trial lawyer, Mark A. Lemley is remarkable. Stanford law students are lucky to have such a “dual threat.”



13 responses

  1. Prof. Lemley is so obviously brilliant and his expertise is widely valued. But is he a “litigator” or a trial lawyer? As all trial judges know there can be a huge difference. I like the old saw: “Litigators are always prepared but never ready for trial; trial lawyers are never prepared but always ready for trial.” so I would be curious how many times he has selected a jury and cross-examined witness, and given a jury opening and closing? Just sayin. Even if he hasn’t he is still an outstanding professor and litigator and that is a wonderful accomplishment.

  2. Your comment gets to the bottom line: “Trial lawyers” are in the trenches doing those things you describe, too often from the seat of their pants/skirt. “Litigators” are often the most brilliant and tenacious in the motion battles that precede the rough and tumble battle before the court and jury; they can wilt in the well of the courtroom before a jury. There is a significant difference as you point out, and our clients need both kinds of effective representatives to be most successful.

  3. With the revival of summary judgement beginning in antitrust cases, SCOTUS rebirthing code pleading and Daubert, litigators now have so many opportunities to inflict exposure to law books on trial lawyers. The trial lawyers allergic reaction is as frightening as the melt down of the litigator if that increasingly rare event a trial occurs.

  4. Mark Lemley is remarkable in many ways.

    With that said, I’m not sure how a full time non-clinical law professor can schedule the time to first-chair jury trials. Teaching class requires professors to teach at regular times, at their home school, in addition to hosting office hours and the like. Counseling and appellate work can fit that kind of schedule, as they can be done part-time. So professors can (and do) do that. In contrast, trial work is unpredictable and all-consuming. It’s hard to fit into a teaching schedule. You can’t tell the judge, “I’m sorry, but we need to take a break on every Monday, Tuesday, and Thursday from 10-12 and 1-3 so I can teach my 10:30 and 1:30 classes across town.” If the case is out of town, it’s especially hard to pull off. A prof might be able to write motions or help out in other ways, but I’d be surprised to know of many lawprofs who do more. And once you get out of practice, it’s harder to get back in; it’s not the kind of thing that is ordinarily well done on a casual basis. So even assuming that a prof has a strong interest in trial work, I’m not sure how they can pull off first-chairing jury trials, which seems to be Judge Kopf’s standard.

  5. Professor Kerr,

    I’m watching the darn Giants beating the Royals by one run. As I write this, Bumgarner has now retired 12 straight Royals on little rest. His Series ERA is about .25. And that brings me to your comment.

    First, I am looking for professors who teach and first chair trials. In other words, I am looking for the Bumgarners of the Academy. That said, I appreciate the inherent limitations that law faculty face if they teach non-clinical classes. Your fair point is noted.

    Second, I will be posting about tenured or tenure track clinical faculty who are also trial lawyers. I agree that they are more likely to have the opportunity to discharge their teaching duties while also trying cases. Nonetheless, and I am sure that you would agree, they are critical to providing a well rounded legal education.

    Thanks for taking the time to comment. All the best.


  6. RGK, the part that I find odd is that you equate an incredible world class athlete (Bumgarner) with anyone who does a particular type of legal job, whether well or poorly (first-chairing jury trials). I don’t get the thinking behind that. I was at the U.S. Attorney’s Office only briefly, but I saw lawyers who first chaired a lot jury trials who were pretty bad at it. If I understand you correctly, though, you think the people who do a lot of jury trials but do so poorly are like Bumgarner. But I would think the test is not whether someone does jury trials, but whether they are among the best of the best at it.

    Anyway, maybe this is all just part of the weird Article-III-judge-vs.-professor thing you seem to have going on, so maybe the point is just to needle professors rather than to actually make sense. If so, that’s cool — professors, like federal judges, often could use the needling. But if it’s supposed to make sense, I don’t get the comparison.

  7. Both your initial point, about the conflict between carrying a teaching load while simultaneously trying cases, and your secondary point here about there being a split between people who try cases well and poorly, make sense. But neither really does much to illuminate anything.

    Mike Tigar did both, and did both well. Who are today’s Mike Tigars? Is it no longer possible to be a Mike Tigar today, and if not, why?

    And if it’s no longer possible to be a Mike Tigar, what impact does that have on law schools producing “practice ready lawyers”?

    Maybe I’m not particularly sensitive, but I didn’t get the sense that Judge Kopf was applauding Mark Lemley in order to denigrate law profs who didn’t try cases, but rather to applaud Mark Lemley. Not a bad thing.

  8. Tigar was always a rare bird, probably given a teaching load adjusted to his practice rather than a standard stand up schedule. Trial practice courses have always been common
    and are taught by adjuncts or regular faculty with wide trial experience before beginning to teach. Prof Kerr is right about rust factor, but you can be a voice coach even if you are not up to opera stage anymore. In addition clinics, once resisted by less wealthy schools largely on cost grounds, are now everywhere. Trial work has not been the problem, nor appellate work and neither of these is the standard full time fare of most lawyers. Other skills areas were resisted on the grounds that they detracted from learning substantive law, but that is rapidly passing, though some of the old fellows here at the home complain. Still at the end of the day none of us was ever really ready, we just had to jump in.
    While he backs off when challenged, Judge likes the macho image of the trial lawyer and does show a certain discomfort with standup profs.

  9. repenting lawyer,

    When I screw up, which is frequently, I try hard to admit my mistakes. That is not “backing off” that is pleading guilty.

    I am curious about this comment: “While he backs off when challenged, Judge likes the macho image of the trial lawyer and does show a certain discomfort with standup profs.”

    The discomfort part I am probably willing to cop to. I also like macho images. But, please give me an example of when I have “back[ed] off when challenged.” I probably have “backed off,” but I am interested in knowing the who, what and when of it.

    Why do I press you on this matter? Well, so I can phony up some lame ass excuse.

    Looking forward to your response, but fearful too. All the best.


  10. Judge We have had this conversation before, I posted a response about there being more ways to practice law and made some rather rude comments about writing appellate briefs for diva trial lawyers and answering questions from District Judges called up to the Circuit. You response was you did not mean to give the impression that the only real lawyering was trial work. Maybe not backing off, but I thought it a minor triumph. I think there are other occasions but my memory like my other powers are in decline.
    On law profs you cop to discomfort, not entirely sure of cause. Wonderful example was your go round with election law chap, though I was on your side.
    You do occasionally throw caution to the wind, show your emotions and let the rhetoric flow. I find it charming but it is not totally consistent with your ice cold logic model of lawyering.

  11. Sidebar, I really wanted to grow up to be Marshall Hall, but never made it to a pale imitation of Rumpole. Still as John Mortimer’s father told him, there is a lot of harmless fun to ne had in the practice of law. Did cite his father’s treatise on wills to a state district judge, he said I was showing off.

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