All of the interviewed lawyers practiced in California—one of
the most sophisticated legal markets for IP law and lawyering in the
world. All of the lawyers had at least five years of experience dealing
with trademark and copyright enforcement, and their years of IP
practice experience ranged from five to forty years, with most having
practiced in this area between twelve and twenty-five years. About
three-quarters of them (45) were partners in law firms of varying
sizes, ranging from boutique firms of three lawyers to large firms with
hundreds of lawyers in multiple cities. Most of the remainder (7) had
“of counsel” status, although four of the lawyers were solo
practitioners (all of whom had previously worked in either large law
firms or as in-house counsel specializing in IP), and two lawyers
served as in-house counsel in corporate legal departments. There were
slightly more men (31) than women (27) in this study.51 One
characteristic of the interviewed lawyers stands out precisely because
it highlights one of the distinguishing features of trademark and
copyright practice: almost all of the study lawyers had relatively little
trial experience (and more than one-third had never been to trial in a
trademark or copyright case in their entire career).52 Only five lawyers
indicated that they had gone to trial in a trademark or copyright case
more than three times in their careers.53 This finding perhaps reflects
the general phenomenon of “the vanishing trial” in civil cases.54 But it
also highlights that most trademark and copyright disputing occurs
outside of court and, even when a lawsuit is filed, most disputes settle
at some point in the pretrial stage.55 As discussed more fully below,