Category Archives: Blogging

 

July 10th, 2007

Is the Blawgosphere Stagnating?

I haven’t done any blogospheric naval gazing since I started writing on personal injury law in November 2006, since that isn’t what my blog is about. But Dave Hoffman at Concurring Opinions just wrote on The Flat Legal Blogosphere And What to Do About It, and I’d like to hit a few points despite the fact I’m just a rookie.

First, read his post at the link above and then come back.

Welcome back (and yes, I stole his naval gazing graphic). Hoffman’s comments in red and mine in black:

Group Blogs Do Not Predominate: Unlike the political blogosphere, the one-person operation remains a very important part of the short- and the long-tail of the blogosphere. Among the highest traffic sites are many run by one individual (Berman, Bainbridge, Leiter, Caron, Ribstein, Althouse/Reynolds (if the last two count as law bloggers). Others are run as groups (Scotusblog, Balkinization, Volokh, CO, Prawfs, Discourse, Conglomerate). But there is no clear trend, as I once predicted, toward further consolidation.

The political blogs, of course, are heavily dominated by two parties and massive amounts of money, thus making for a poor contrast. The reason for the lack of consolidation in legal blogs, I think, is that solo and small firm practitioners still practice in wide numbers across America. (cite, anyone?) While almost every other industry has consolidated — how many solo doctors do you know now, as opposed to 25 years ago? — attorneys have resisted. The blawgosphere merely mirrors the actual practice of law. If you need to do a comparison, look to other professions. Without looking, I’d bet accountants, architects and other professionals are similarly one-person operations.

Traffic is Stagnant: Critics notwithstanding, I still think I’m right that the legal blogosphere’s growth has slowed significantly. One major law blog has seen a large increase in daily visits (SCOTUS Blog), and a few others (Opinio Juris, for example) have seen a gradual increase to around 1,000 visitors a day. But on the whole, the explosive growth in traffic of 2002-2005 no longer exists. Sites are bumping around basically where they were a year ago.

I don’t know the basis of this since no link to a survey was provided, and I don’t think traffic stats for particular sites are public knowledge, except for those that volunteer the info. My own small, recently-started niche blog that you now look at averaged over 700 unique visitors a day in June. I don’t know if that is good or bad and would love to know what others get, but this is still just anecdotal. Absent some type of actual survey of the legal blogosphere, I don’t see how one can say traffic is stagnant.

New Entrants are Rare: I think (though we need a new census). I imagine that almost every law professor or lawyer who wants to blog has now heard of the medium and has either joined the fray or decided to abstain. Moreover, it is becoming increasingly hard, as I’ll discuss in a moment, to break into the game and find readers.

Most attorneys I speak with are unfamiliar with blogs. Many still don’t have web sites. And I managed to find new readers starting from scratch (albeit while expending a great deal of time). While I am still very new at this, my gut tells me that tremendous growth lies ahead. Here’s why: New York probably has over 10,000 attorneys who practice personal injury law (based on about 75,000 total attorneys, with the largest plaintiff’s attorney group having about 4,500 members). Yet how many blawgs on that subject can you find? Since this is my area, I’ve looked. And you won’t find much. Justia shows just 28 for the whole state covering all areas of law. There are a million attorneys in the U.S., but how many blawgs in total are there that post at least once a week? About a thousand?

There are Few Professionals: Here, we can see some parallels to political blogging. A few reporters and the gossip-hounds are doing this full-time, but by and large lawyers aren’t quitting their day jobs to make money from blogging. The amateur/hobby status of law blogging is likely driven by the smaller audience of readers for law than for partisan political analysis. With the exception of Reynolds and Volokh, I imagine that no law blog could, even when fully monetized, gross more the low five-figures a year.

Yikes. I italicized the last point because it is the most important part of this response. If someone published an article in a legal journal, will that gross them any money? No. Except as an indirect form of marketing as they become known in their field for what they do. Blogging is conceptually no different. Most blawgers, I think, do it simply for enjoyment, or to network with other attorneys for possible referrals, or perhaps hope a future client stumbles on the blog while looking for counsel. Trying to place a financial figure on such an indirect form of networking is not only impossible, but would completely miss any real benefits that might accrue based on new contacts and clients.

Law Blogs Are Largely Reactive: Here, some qualification is in order. Some law blogs, like Berman’s, Balkin’s and Volokh’s, have driven national debates on issues like torture and sentencing. They have done so through “original” reporting on legal issues, in a significantly deeper and more comprehensive way than reporters on the “law beat” ever could. These blogs really show the value added of law blogging. But, overall, most law blogging, even at high-traffic sites, remains parasitic on the main-stream media.

True, they are reactive. I’ve also noticed, though, that in two stories where I was presenting original material (that supplemented that of the main stream media) my traffic spiked upward. I think it is clear that those that pursue original content will flourish and those that are strictly parasitic will stagnate. Very Darwinian. Very capitalistic. Isn’t that how it should be?

Addendum: See Also:


(Eric Turkewitz is a personal injury attorney in New York)

 

June 28th, 2007

Avvo Responding to Criticisms

Avvo, the new attorney ranking website, has been responding to frequent criticisms of its site. This was revealed in a a 1 1/2 hour interview with Paul Bloom, a founder and VP of marketing at Avvo, by Scott Greenfield — owner, operator, writer, editor, publisher and grand poobah of Simple Justice.

You can read the details at Avvo: My chat with Paul. That’s Scott’s mug shot at right, not Paul.

Addendum: At the request of Mr. Greenfield, I have added a more up-to-date photo.

See also:

 

June 6th, 2007

Flea, The Boston Globe and Morality in Journalism and Blogging

(Having discussed the trial of medical blogger Flea, I turn today to coverage by the Boston Globe)

Was it just me, I wondered? Flea’s name was plastered on the front page of the Boston Globe and I thought, “Is that really necessary?”

Leaving aside the issue of whether this pediatrician brought undue attention on himself due to his blog entries about his medical malpractice trial, we have to turn to the conduct of the Globe and ask some questions:

Was the outing of a doctor’s pseudonymous blog in a courtroom a human interest story? Yes.

Was it interesting enough to write about? Yes.

Was his name critical to the story? Well, no.

Did this deserve to be a front-page story, above the fold (without his name)? Maybe. Human interest stories do appear there, but when they sit atop a human tragedy, in this case the death of a 12-year-old, there really isn’t much of the “fun” quotient usually associated with such prominent placement. Page 10 of the local news, maybe.

When I saw the article appear I was surprised both by its extraordiary placement on the front page, and more significantly, the outing of the doctor’s actual name by the Globe in such a spot. So too with the names of the patient and his father. While the episode was surely interesting, these informational nuggets added little to the story. They were, however, guaranteed to bring heartache and pain for those named.

This is not a discussion of whether the Globe could do this — the First Amendment clearly protects them — but whether they should do it in the manner they did. It goes to morality, not to law.

After deciding to use the names, and deciding to blast the story with the acerbic blog comments across the front page, the writer then engages in a self-fulfilling prophecy:

The case is a startling illustration of how blogging, already implicated in destroying friendships and ruining job prospects, could interfere in other important arenas.

That’s true. It can interfere in important arenas. So why did they do it? Is it the policy of the Globe to inflict pain on people simply because they can? Was there some kind of sick gratification in seeing a young doctor get his comeuppance for perceived arrogance in his writings, and damn the consequences? While he was outed in the courtroom, it was an outing no one else knew of beyond those limited confines. Until, that is, the Globe thought it would be fun to blast it to the rest of the world.

I asked the plaintiff’s attorney, Elizabeth Mulvey, about the Globe article, which appeared over two weeks after the trial was over. She said:

I asked the Globe not to use either party’s name, as I felt both sides had been through enough and that it really didn’t add anything to the story, and also that I was not the original source of the story, which was leaked to the Globe by someone not involved with the case. Although I would have preferred not to comment at all, I felt that it was necessary to correct some misinformation supplied by this source. I really feel that it is regrettable that, because of this source’s indiscretion, both my clients and the doctor were subjected to unnecessary pain.

The result of the Globe’s decision to use names is that this story will repeatedly pop up when new patients Google this doctor years from now, since numerous blogs have now reprinted Flea’s name while quoting the article. That seems grossly unfair given that it results from his prominence as a medical blogger rather than any wrongdoing as a doctor.

But those bloggers that have already published his name, simply by quoting directly from the article, can un-do some of the damage they may have inadvertantly done if, upon reflection, they feel an injustice has been done. They can go back to their blog postings and edit out his name — using instead his initials, first name, or pseudonym — so that they are not unintended accomplices to the Globe’s lack of good judgment. The question to ask: Should Flea be permanently branded, in his real-life profession, because of this? Bloggers may not only wish to make that modest edit, but to explain to their readers what they have done and why, so that others might follow.

Will that scrub the Internet of such references? Of course not. But it might cut down on what could be page, after page, after page of such results. No matter what some might think of the comments Flea made, the punishment that the Globe sought to inflict upon him seems vastly disproportional to any sins he committed with his blog.

The Globe created a very high profile problem. The blogosphere magnified it. Can any of that damage be undone? It seems like an experiment worth trying.

 

June 5th, 2007

Deconstructing the Trial of Flea — Part 2

(In Part 1, I discussed how a plaintiff’s attorney discovered the identity of medical blogger Flea, and used it during his medical malpractice trial.)

When this trial ended in settlement many people wanted to know: Was the existence of the blog and the Boston Globe’s description of a “Perry Mason” moment a factor in the settlement?

The answer I come up with, after discussing limited facets of the case with plaintiff’s attorney Elizabeth Mulvey, is that while I doubt the blog or the Perry Mason moment made a big difference, the reality is that only the jurors would ever know. And they didn’t hear all the evidence.

While Mulvey wouldn’t discuss the facts of the case — the agreement is confidential and I doubt either the parents of the boy that died or Flea want to talk about it — I did learn that there had been five witnesses before the settlement, including Flea and two experts.

The trial started with Flea on the stand. It is a common tactic for the defendant to be called first by the plaintiff’s attorney. There was then a break in his testimony after Mulvey had done her direct exam so that the experts could testify, with Flea to return later. (This is not unusual, as scheduling expert witnesses is always a problem unless they are retired.) The blog outing occurred on the fifth day of trial. In addition to more testimony from Flea, there were still likely to be a couple more witnesses, with the defense team having another expert ready that could have testified if the trial continued.

Thus, even if a synopsis of the facts were available by someone, they would likely have been disputed. That’s why we have juries to look in the eyes of the witnesses and consider all of the available evidence placed before them. It is difficult for a summary by a newspaper or blogger to fully capture two weeks of trial for an in-depth analysis.

(As to the timing of the settlement, it is not at all unusual to have cases settle mid-trial, after the attorneys can evaluate the evidence. In fact, I’ve had four medical malpractice cases settle while the jury was deliberating on the verdict.)

And about that “Perry Mason moment?” Mulvey told me that while it was certainly interesting, it hardly amounted to the melodramatic rendering of it by the Boston Globe. Trial attorneys, you see, routinely confront witnesses with prior inconsistent statements. Sometimes it means something to jurors. And other times they shrug it off.

Just a few weeks ago Anne Reed wrote on this very subject at Deliberations, in The Overrated Prior Inconsistent Statement. From that posting, which has many links to original sources:

But are jurors really going to throw out a witness’s testimony because of one inconsistency, or even one lie? Think about it. Do you have a co-worker who has lied to you but with whom you still manage to work well? A family member who has lied to you whom you still love? Perhaps you yourself might have told a lie once, long ago? For most of us, the idea of falsus in uno is too simple to be useful in real life. [The latin phrase means that someone who lies about one thing is likely to lie about another, and a jury is therefore permitted to disregard all the testimony of the witness — ET]

Jurors are often forgiving and practical when a witness lies. That’s the conclusion of an empirical study by Jones Day lawyer Richard Stuhan, and trial consultants Melissa Gomez and Daniel Wolfe of TrialGraphix, Inc, collecting data from over 800 mock jurors in “over a dozen states.” Stuhan, Gomez, and Wolfe authored an extensive post about their study (and its limitations) at the Drug and Device Law blog, and plan to publish it in full in the April 2007 edition of DRI’s For the Defense magazine.

And so, while the confrontation with the blog may have been presented in the Boston Globe as exceptional, it appears that the only exceptional thing was where the prior statement came from.

This article was blasted across the front page a full two weeks after the trial was over. So the guy who wrote it, and the editors that placed it above the fold on the first page, weren’t even there.

Tomorrow, my final bit on the trial of Flea. But it really isn’t about him. It’s about the Boston Globe.

 

June 4th, 2007

Deconstructing the Trial of Flea – Part 1


(This is a follow-up to Doctor “Flea” Settles Malpractice Suit After Blog Exposed In Court. regarding a pediatrician that was live-blogging his own trial. I first discussed the legal ramifications of doing so on May 8, in Medical Malpractice Trial Starting For Med-Blogger)

Were you wondering how Flea was exposed in court and how his blog would be used? So was I. Curiosity got the better of me, since the details weren’t in the Boston Globe story from last week.

So I called plaintiff’s counsel, Elizabeth Mulvey, of Crowe & Mulvey to find out. She told me she was tipped off to his blog by another attorney. How did the other attorney know? Because Flea had blogged about a subject that Mulvey had spoken on some time back and the other attorney realized that she had the case. Flea had unwittingly given out the identifying information when he discussed her talk. On this cached version of Flea’s site, you can see his comments discussing Mulvey on April 28th.

With that information in hand Mulvey scoured his blog for helpful information, much the way any attorney would review writings produced by a witness for the other side. She found a post where Flea referred to Nelson’s Pediatrics as the bible of pediatrics. (I have the 11th ed. from 1979 on my own bookshelf.) So she asked him on the witness stand if he considered Nelson’s the bible for pediatrics. He said no. Lawyers call that a “prior inconsistent statement” that allows us to confront the witness with the other statement. That meant asking him if he was Flea and confronting him with the blog posting.

This testimony came out during the direct exam of Flea by Mulvey (she called him as her own witness making it “direct” even though he was adverse and it more realistically resembles cross-examination). She did not use the comments about the meetings with jury consultants that I discussed back on May 8th, but then, she still had another opportunity to examine him when his own attorneys were done. The tips he received on how to conduct himself on the witness stand could still have come up.

She never got to that second part of her exam, however, because the case settled. The details are confidential.

Mulvey considered this just another type of prior inconsistent statement. The most frequent use is when deposition testimony deviates from trial testimony. It could also come out if a witness has published an article where the contents of the article differ from the testimony. That it came out on a blog was novel, but the concept was not. (William Childs at TortsProf hit this point on May 31st.)

Tomorrow, more details concerning the trial…

Addendum 6/5/07 – Part 2 now available at this link.

Addendum 6/6/07 — Flea, The Boston Globe and Morality in Journalism and Blogging