5 minutes with... Marcia Paul
Starting out, what did you expect from a career in law?
The truth is that I didn’t know what to expect. I always knew I was going to be a professional and since I could not stand even the thought of dissecting a fetal pig, law was the default choice. That was reinforced by the fact that my mother was the Clerk of the old City Court, so I was a courthouse brat as a child and then, while in college, I had summer jobs working in Small Claims and then Landlord and Tenant parts. That, plus a lot of Perry Mason, pretty much defined that I would go from college straight to law school and from law school straight to a Wall Street firm. But I really had no clue what practice would actually be like and how my career would play out, beyond the romanticized notion (being of the generation that was going to “save the world”) that I would stay on Wall Street for a short while and ultimately do some kind of public interest law. As it turned out, my stint on Wall Street was relatively short, but my path was not what I idealistically predicted way back when.
What do you consider to have been your big break?
In retrospect, landing a job at Greenbaum Wolf & Ernst – a now defunct firm; that is what led me where I am. Greenbaum was an old-line firm known for taking on unpopular causes and doing a fair amount of work for not-for-profit work (for instance, representing Planned Parenthood, defending Ulysses from obscenity charges before the Supreme Court), but it also had a strong First Amendment and “entertainment” practice, as well as a somewhat “sexy” international corporate practice. So when I realized that I was not going to save the world, Greenbaum seemed like a good compromise: I could do some “public interest” litigation, but I could also apply the skills I learned during my four years at Sullivan & Cromwell to corporate litigation and dabble in the First Amendment and entertainment practices. While I did do some corporate litigation while at Greenbaum, most of what I did involved the First Amendment and what was then called “entertainment” litigation –largely copyright and trademark cases for media companies, authors and celebrities. By the time GW&E folded in 1982, I was already doing exactly the same kind of practice I have today, namely a combination of media, soft IP, and transnational litigation, but I can’t claim that was my plan from the outset.
What differences do you see in today’s legal market compared to when you started?
There is a world of difference in practice today and what it was when I started in 1972. Then, a “big” team on a “big” case in a “big” firm consisted of four or five lawyers. There was no word processing; I started out with MTST and mag cards which were new inventions at the time. Email did not exist, so there was no e-discovery. A large document discovery in an anti-trust case meant a dozen file cabinets of documents.
Associates and even partners were not encouraged to go out and get new business: the relationships between the big firms and the “big” clients, whether Wall Street investment firms, brokerage houses, or retail or manufacturing behemoths, were institutional. Associates and junior partners could not produce the kinds of business that the larger firms were interested in doing. Your job was to do your work and maintain the client relationship, not go find new ones.
The flip side of this was that the practice of law was much less a business and much more a “fraternity” (and I use the word purposefully, as there were relatively few women lawyers and no Title 7 or the like). The firms took care of their own; there was less internal competition, lock-step compensation and promotion, and generally, more teamwork. Lawyers were largely insulated from the vagaries of the business world, even at the partner level. But lawyers got greedy. Billing rates rose astronomically (as, in fairness, did salaries and expenses) and then e-discovery radically changed the costs of even relatively routine litigation.
Concomitantly, the practice of law became less a fraternal profession and more a business, as firms compete tooth and nail and behave more like businesses and less like collegial clubs, and as clients insist upon discounts, alternative fee arrangements, detailed budgets, and other financial accommodations. The historical institutional relationships between firms and clients largely collapsed in the face of these new economic realities. While some of that is good because, at least theoretically, competition drives better results at more efficient prices, there are things I miss. I miss the collegiality, teamwork and loyalty. I miss the opportunity to really get to know a client’s business over many years by working on many different litigations, which can only happen when you have the continuity of a long-standing relationship with a client. I miss the idea that a client can trust that I’m going to review a bill carefully, that I’m not going to bill time that was inappropriately recorded or an unjustifiable amount, and that I’m going to bill what I think is fair for what was done and accomplished – as opposed to a client demanding discounts upfront off frozen billing rates with guaranteed budgets or fixed fees for particular phases of litigation. Where is the trust? Where is the sense of working together towards a fair result? I understand the need for predictability, and I also understand that in-house lawyers have to assure their superiors they are getting a good deal, but I find some of the rules applied to be arbitrary and others just plain unfair.
What achievement are you most proud of?
I do not like winning awards: being the center of attention myself (as opposed to on behalf of a client) is not my comfort zone. But the salient exception is an American Inns of Court Award I won for Professionalism and Mentoring in 2002. I was the first recipient of this award in the Second Circuit. As much as I love a jury coming back in my client’s favor, or getting a really great decision on an issue of first impression out of the Circuit, what I enjoy most about the practice of law is working with people, and particularly younger lawyers. Watching and helping them learn and change and develop confidence (and nowadays, develop business plans and pitch and get their own clients and build their own book of business) is as important to me as the intricacies of procedural arguments, or the intersection of the First Amendment and intellectual property protection. Consequently, winning this award is my proudest achievement.
What do you consider your greatest failure or regret?
In the early ‘90s, I started being consulted by clients about the impact of emerging technologies and new media on content protection, just as they were beginning to deal with these issues in their businesses. I looked to the younger lawyers around me who knew so much more about computers and videogames than I did, and relied heavily on their experience. I did not fully embrace the whole idea that the Internet and technology were changing the world and were going to change my practice on a day-to-day basis and that I better develop a comfort level fast as the result. I ran away from it, instead of running with it. Eventually I caught up and I now do a lot of work in this space (and feel pretty comfortable), but I see it as a missed opportunity, not only in terms of being considered a “go to” person for business development purposes, but also because it probably represents the single biggest intellectual challenge that I have faced – at least so far – in my career.
What law would you want to change, abolish or create?
There is the usual: abolition of the death penalty, legalization of marijuana, and a host of other ‘60s knee jerk liberal causes. But more than anything else, I would love to be creative enough to come up with an entirely new construct for copyright and trademark laws that encourages creativity and provides societal recognition and compensation for authors and those who build goodwill in brands and trademarks on the one hand, while at the same time acknowledges 21st century communication and mores, and incentivizes creation of derivative works, on the other. I think our current system of rewards and protections – particularly in the copyright, trademark, and advertising spheres – is broken, but do not personally have either the creativity or the objectivity to come up with a solution.
Who is your legal hero?
I do not have a single legal hero. As you may be able to tell from some of my earlier responses, I admire creativity and the ability to think out of the box. Whomever first crafted the First Amendment would be up there on my list. And the framers of the Constitution, who created a document that set forth basic governing principles but left room for centuries of growth and development within those value parameters. (As you can tell, I am not a strict constructionist; I believe that the Constitution is a flexible document meant to be interpreted over time.) It has been a long time since I read The Federalist Papers, but I remember being awed by the thought that went into the framing of the basic precepts of our legal system and governmental structure.
What career would you have in your second life?
No question about this one! Fashion Design. I said above that I always knew I would be a professional; that is the way I was brought up, what was expected of me, and what I expected of myself. But the truth is I would have had more fun designing clothes. This assumes of course that one has a second life, and then, too, that I would not have to worry about earning a living in that hypothetical second life, since there is no reason to think I would be a particularly good or successful fashion designer.
How would you like to be remembered? (“slogan”)
That is far too depressing for me to think about. I do not worry about what is going to happen in my life tomorrow, so it is not in my makeup to worry about what anybody will think about me when I am no longer around.