One final down--First Amendment Law. Two (plus a paper) to go.

But while I have your attention (and I'm taking a break from studying): I had an interesting experience during my Copyright, Trademark, and Trade Secrets class last week that crystallized some thoughts about being wrong. Specifically, about being wrong in a room full of the smartest people I've ever met.

Suckers for punishment, keep reading. Everyone else skip to the "End Frustrating Legal Analysis" tag.

The experience was relatively straightforward. We were covering trademark law, and had just spent two or three days hashing out the "use" requirement of infringement analysis. My professor, Tom Lee, spent a significant amount of time trying to explain how the "use" requirement in the statute detailing infringement (15 USC 1125(a)(1)) was not extraneous to the "likelihood of confusion" test (15 USC 1125(a)(1)(A)). Frankly, most of the class didn't buy his arguments, but most of them (I think) at least got his point.

I didn't.

This was very frustrating to me, and he and I went back and forth on the issue both in and out of class for a few days (I admit, Professor Lee's patience and perseverance with me was pretty impressive, and I'm as patient as the dead). Basically, I felt that "use" of a mark in an infringing manner implied some sort of reproduction (as clearly implied by 15 USC 1114(1)(a), but that's not the statute we were talking about). Professor Lee was suggesting... well, something slightly different. But I couldn't figure it out.

We moved on to the "likelihood of confusion" test and I asked: "It looks like you can have infringement without the use of the plaintiff's mark, so does that mean that the use requirement really is extraneous?"

His short response--not terse, but with a certain patient restraint bordering on weariness--"No, because as I've been trying to demonstrate for the past couple days, it's not use of the mark, it's use of a mark."

Click.

That would be the sound of me getting it, and also feeling really stupid. I was conflating two issues in the analysis.

End Frustrating Legal Analysis.

And if you don't understand any of the foregoing, that's okay--if you ever need to understand it, either go to law school or hire a competent attorney (hopefully me, one of these days). The point is, I was confused because I had written "the" in my notes, when the proper word was "a." And then I spent three days being frustrated and confused, which led me to pester my professor until finally he found a way to explain my mistake in such simple words that I looked--and felt--like a complete idiot.

This is a class filled with some of my brightest peers, which of course amplifies the sting a bit. But I tend to comment a lot in all of my classes, so it's not the first time I've made a fool of myself. I don't like to look stupid--I don't think anyone likes to look stupid--but it doesn't bother me enough to shut my trap. And I finally realized why.

I'm not at law school to be right. I'm at law school to learn.

This should be obvious, I think, but people lose sight of it. I've heard several of my classmates comment that they don't raise their hand in class because they don't feel competent enough--they don't want to look silly. Some professors will go out of their way to humiliate you, it's true, but even the nice ones will frequently make students look dumb, if only by comparison. When I had him for Civil Procedure as a 1L, I think Professor Lee did occasionally set out to make someone fall on their face, but it was rare and he certainly never did it to us in Soft IP. Doesn't matter--we're inexperienced and foolish by comparison to a man of his experience.

But in pondering this I recalled my choir days back in High School. When you're rehearsing, it's important to catch mistakes early so they don't become habitual--acquiring good habits is easier than breaking bad ones. Every choir director I ever had emphasized that we should sing with confidence and sing to be heard, because if we were unsure of something and sort of mumbled our way through it, the director would be unable to hear our mistake and correct it. We would never improve because we were hiding our faults.

I felt silly when I finally realized why I wasn't understanding the concepts as presented, but the lesson I learned (and the price I paid to learn it!) will come in handy on the final exam come Friday morning. I sang my ignorance with confidence and the "Director" Lee fixed my mistake.

So here's my newly-minted advice for law students: you're not at law school to be right. You're at law school to learn. Ask your stupid questions, take your licks with pride, and pester the professor until you "get it." Looking stupid today could mean looking really smart come grade time.