Conversations with Law Firm Leaders: Ted Davis

Ted Davis (Kilpatrick Townsend & Stockton LLP, USA)

In our rapidly evolving legal landscape, effective leadership is critical to maintaining a competitive edge. With this in mind, the Law Firm Committee initiated a series of conversations with managing partners, heads of practice, and IP leaders from member firms around the globe to gather their insights on the challenges and opportunities facing law firms today, the ways in which technology is transforming how law firms work, and how they strive to achieve balance in law firm life.

The first of these conversations features Ted Davis, a partner in the Atlanta office of Kilpatrick Townsend & Stockton LLP, where he has practiced trademark, copyright, false advertising, and unfair competition law since 1990. He currently serves on The Trademark Reporter Committee and is a past member of INTA’s Board of Directors. Mr. Davis has also served on the American Bar Association’s Board of Governors and the American Intellectual Property Law Association’s Board of Directors. In recognition of his extensive volunteer service to INTA, he received the President’s Award in 2017 and the Volunteer Service Award for the Advancement of Trademark Law in 2014; he is also a three-time recipient of the Ladas Memorial Award. Together with John Welch (Wolf, Greenfield & Sacks, USA), he presents the Annual Review of U.S. Federal and State Case Law and TTAB Developments at the Annual Meeting each year.

Outside the office, he has taught as an adjunct professor at Emory University and the University of Georgia School of Law and has testified before Congress on trade dress and Internet issues. He is a member of the Georgia, New York, and District of Columbia bars.

What is your firm’s biggest challenge over the next five years and what is its biggest opportunity?
A challenge that we face—and really everyone in the legal industry faces—is getting junior lawyers fully integrated into the practice of law in the quasi-virtual environment in which law firms now operate. Historically, and certainly when I was an associate, the practice was a fully immersive experience. There were associates in the library and partners in their offices—a certain “forced comradery” among junior lawyers arose from physical proximity.

While it might be easy to call that artificial, it led in practice to lots of informal learning experiences, and it built cultural connections. There is value to being roped into random lunches with colleagues—especially those in other practice groups—to learn about each other’s lives and experiences and how the firm works in an informal way. Virtual tools in the hands of junior attorneys can be a partial substitute for being in the same room, but I doubt it can entirely replicate the in-person experience. Firms that can figure out how to integrate junior attorneys into the practice will be at a great advantage.

How do you currently use AI and how do you think you will be using AI five years from now?
AI is already a valuable tool to analyze successful arguments and will just become more sophisticated and ubiquitous in that process.

I am intrigued by the use of AI to make a stylistic analysis of decisions. If a generative AI platform can ingest the entire corpus of opinions from a particular trial judge, does your duty of zealous representation obligate—and not merely permit—you to use the platform to revise your briefs to be more consistent with that judge’s stylistic conventions? We can see AI teaching attorneys how to utilize stylistic expressions more likely to appeal to particular judges and avoid those they dislike. Attorneys already seek to learn as much as possible about their judge, so AI could provide a “know your audience” technology that appreciates stylistic preferences in a more systematic way.

Also, while the dangers of over-reliance on AI are apparent, and there are horror stories of AI platforms hallucinating nonexistent “phantom” cases, we may soon get to a point where attorneys might be required to use those platforms to make their advocacy more palatable to the courts.

What keeps you up at night?
I have a great concern about the politicization of the legal process generally, and of U.S. trademark law in particular. The USPTO is an executive branch agency, and the Appointments Clause [U.S. Constitution, Art. II, Sec. 2., Cl. 2] clearly provides the President with the ability to appoint and supervise the heads of executive branch offices such as the Secretary of Commerce and other “Officers of the United States.” Political appointees historically have deferred to the USPTO staff in the legal and administrative operations of the office. Nevertheless, there have been rare past occasions on which the USPTO Director has interfered with the decisions of the TTAB by appointing new panels to rehear particular cases, which in turn led to final panel decisions contrary to the original panel’s decision.

This happens rarely, and it should stay an infrequent occurrence, but that rarity has been by practice. Outside the First Amendment, the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and possible statutory prohibitions, few guardrails limit the Director’s discretion or right to take action. The general lack of those guardrails is a necessary consequence of the Appointments Clause, but it would be very bad indeed if the Director’s office became politicized such that litigants, registrants, or applicants could pressure the Director to intervene on a more regular basis.

United States trademark practitioners generally do not advise their clients that a TTAB decision could be overturned by the executive branch for reasons possibly unrelated to the merits of a case, and hopefully it never comes to that. Regrettably, though, you do not have to be a conspiracy theorist for this to be a concern. Fortunately, recourse to Article III courts remains an option, but it would be a true disservice to U.S. trademark law and our profession if litigation before the TTAB became a politicized process.

Complete the statement: “I wish I knew earlier in my career….”
You have to invest in yourself. You need to figure out how to invest not just in making yourself a great attorney, but how you craft a career. I always knew that getting clients was difficult in the first instance, but, as a young attorney, you do not appreciate how difficult it can be to keep clients. Client dynamics can be entirely unrelated to how you do your job, so you need to work on your entire career.

Figure out how you want to spend your time advancing your career apart from just learning the law. What do you like doing that will bring you into meaningful contact with other lawyers and non-lawyers who could be your clients? It is a long-term investment, so the sooner you start, the better off you’ll be.

What do you do when you are not working. Is there any activity or trait that your friends and family particularly associate you with?
My wife and I are empty nesters and have taken the opportunity for more travel in recent years. We tend to plan travel to either a place that has some family history around it or is something off the beaten path. For example, my extended family has Scots-Irish roots, and we have taken trips to Ireland and the Orkneys off the northern coast of Scotland.

Last year, we took an off-the-beaten-path trip to Koyasan/Mount Koya in the Wakayama Prefecture of Japan. I was fortunate enough to attend the TM5 meeting in Japan as part of the U.S. delegation. We stashed our luggage at the train station and hiked up the mountain to a Shingon Buddhist temple. I will not profess to have gathered any unique insights into Buddhism, but when you encounter freezing temperatures in a venue in which open-toed sandals are the only permitted footwear, a fire purification ceremony can suddenly become much more attractive than it otherwise might be. There’s lots more of the world to explore, so I see this as a continuing adventure for us.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest. The opinions expressed in this interview are that of the person being interviewed and do not purport to reflect the views of INTA or its members.

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