E-Commerce Practicum – The Faculty Perspective

Today we conclude our look at the practicum requirement of our third year curriculum with an interview with Professor Josh Fairfield.  Professor Fairfield leads our E-Commerce practicum. In our course catalog, the E-Commerce practicum is described as follows:

“The practicum in E-Commercial Law will explore one of the law’s fastest-expanding fields. The video game industry’s budget has long surpassed that of Hollywood. Social networks and online marketplaces are the internet success stories of this decade. Yet most established lawyers know little or nothing about how to advise clients on increasingly important e-commercial issues. This practicum will focus on the practical knowledge lawyers must have to succeed in both e-commerce transactions and e-commercial litigation. The practicum covers arange of topics from core commercial law applied to e-commerce (internet sales and securing financing for internet startups), to currently evolving legal issues, including drafting End User License Agreements for video games and social networking sites, drafting electronic sales agreements, and exploring the novel legal issues raised by the growing commerce of online marketplaces and virtual worlds. The course will cover both transactional and litigation skills, and will involve advising a hypothetical client first in the structuring of an e-commercial enterprise, and then progressing to role-played litigation scenarios based on the students’ transactional work.”

For you, what do you hope your students get out of your practicum?

Our students are very successful people. They’re bright. They’re hard working. I need them to learn something very specific if they are going to work for people in Silicon Valley. I need them to learn how to fail. You’ve heard the old adage, “If you’re not failing, you’re not trying hard enough”? The people in Silicon Valley are professional risk-takers. They take millions of dollars of other people’s money and they drive it off a cliff, so to speak, in search of some idea that they have. That takes an incredible amount of self-confidence, an incredible willingness to solve problems, and also an incredible willingness to fail. The people behind internet start-ups usually have two maybe three dead businesses in their past. These are people who have taken to heart the American adage about trying anything once.

I need students to be outside of their comfort zone and that’s a comfort zone they’ve established over two years of law school. I need them to learn how to be comfortable taking on projects, skills, capacities they are not comfortable with, but that I know, based upon my experiences, they will need. For my students, I know it’s not enough that they graduate from law school with a significant knowledge of the law. They need to graduate from law school with a significant understanding of risk taking and how to take risks appropriately and how to advise their clients on risk. Not just on what to do and what not to do, but rather what the risks are for each option set. That’s what I hope they will get out of this kind of course.

What do you think about when designing this kind of course?

I think about “What are the skills students are going to need in representing Silicon Valley clients, in representing entrepreneurs?” and “What skills have they not already had exposure to in their first- and second-year courses?”

I’ve used the metaphor of language learning for the curricular progression here at W&L, and it absolutely describes what I’m trying to do in the E-Commerce practicum. Applying this metaphor of learning a language, in the first year of law school, you learn some vocabulary. In the second year, you learn the grammar. And in the third year, you have to learn to speak. We’re doing basic things that they’ve known already from one class or another, I don’t think there’s anything we do in my practicum course, from the filing of a preliminary injunction to a formal risk evaluation for a client, there’s nothing that they haven’t heard about, but now they have to do it. I’m always shocked at how much of a difference that makes. How much you don’t really understand about the law until you have to do something with it. We’re taking things the students have learned before and telling them how to use them, but how to use them in a context with which they are not familiar, that is the world that lawyers live in. Lawyers live in an environment of mitigated and managed risk, and that is the skill they have to learn most of all before they leave law school. How to understand, how to mitigate, how to manage, how to explain to their clients legal risk.

Are there things you can do in a practicum course that would be much harder to do in a lecture-based course?

Risk management is incredibly difficult to teach in a lecture-based course. In the practicum setting, we set it up so the clients are unreasonable, the clients want vindication, they are angry, they want revenge. Those emotions are all going to lead to bad business decisions if the lawyer does not help the client understand the risks involved. You can’t do that in a lecture class because it’s too easy in a lecture class for people to say, “Just be reasonable. Make the smart business decision.” Much harder to do when you’re across the table from the CEO, who is saying “I’m your client, I pay the bills, and I want you to file this lawsuit,” and you have to say, “You know, this may not be your best move. I’ll do what you tell me to do, but we have to keep some options on the table. Have you thought about this, or that, or this other thing.”

Do you think the experiences students have in your practicum will help them be better lawyers? If so, how/why?

Absolutely. In my practicum course, I push my students to understand what it means to counsel a client, to give advice to a client. It does not mean simply looking up the law and advising the client with something like, “This is legal” or “This is illegal.” Those aren’t real answers. The people with whom you’re working, if you’re working in Silicon Valley or with major corporations, are doing things no one has ever done before. They are professional risk-takers. They have businesses and ideas that regularly beat the market. They don’t want to know if something is legal. What they want to know is “What are my options? What are the risks if I pursue this course of action?” I believe this perspective will prove immensely helpful to my students as they begin their career.

What do you think the hardest thing is for students in terms of adjusting to this different style of learning?

Lawyers are by their very nature risk-averse. They have been trained to think this way. Too often lawyers fall into the bad advocacy trap of simply concerning themselves with “This is what I can do” or “This is what I can’t do.” Furthermore, they are also susceptible to becoming “yes men” and doing whatever their clients want. Good lawyering is about doing many different (and often difficult) things at once. Good lawyers have to manage risk while helping their clients meet objectives and being firm and clear both with what is legally correct and what is ethically required. We design problems in which clients ask our students to do things they should not do and students have to tell clients to back off. This is certainly not easy, but as a lawyer, it is your responsibility to have these difficult conversations.

I think managing all these considerations at once, particularly the risk component, is the most challenging aspect of this course for students.

Any particular favorite moments from your classes in the past?

We’ve had some fantastic guest speakers, including Adam Palmer from Norton Symantec as well as the Founder of Rosetta Stone. I also particularly enjoy these five-minute presentations students have to make called “Ideas Worth Spreading.” These are very similar to TED talks, and, for these presentations, students have to find insight from outside the law, something that seemingly does not relate to the problem or question at hand, and show the class how it in fact relates. The students are graded on how far outside the law they reach and how well they connect it to the problem. Furthermore, my class is structured very differently than even most practicum courses. Everything is structured according to “Silicon Valley rules”: Group work. All meetings are 15 minutes. Two people work at a computer at a time. I enjoy watching students adjust to this new environment.

Before coming to law school, my students have had these rich and varied lives, and I want to make sure they do not forget about these skills, talents and perspectives. These are the sorts of things that will help them solve problems as lawyers. In my class, I ask people to be not only lawyers but also people. I try to continually remind them to bring who they are to the table, to remember what they know, but perhaps more importantly, remember how to learn what they don’t know. Lawyers often forget how to learn, and I believe my practicum encourages students to strengthen these muscles, so that when they get out and are confronted by a challenging problem, they know how to unpack it and pursue it with a real intensity and fearlessness.

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