October 1st, 2010

Should Lawyers Blog (Or Twitter) About Their Cases?

There’s been some discussion in the blogosphere lately about using blogs or Twitter to discuss one’s cases. It popped up recently when criminal defense lawyer Norm Pattis twittered about his day in court, dealing with child porn and sexual assault. It was designed to be a tweet (or twit) about a day in the trenches of the practicing attorney(which differentiates him as a practicing lawyer from those in academia, or those looking to sell social media services).

The tweet, which Pattis has taken down, (although a similar one remains) was problematic. For even if he believed the twit didn’t disclose anything about any of his clients — and he didn’t — I don’t think that is really the standard that needs to be addressed.

There are only two questions any attorney should ask when contemplating a public comment about a case:

What will clients, past, present and future, think about it if they should see it?
What will jurors think about it?

So even if a post is fine from an ethical standpoint, it may not be wise because of how others perceive it. And in worrying about how others perceive it, you have to assume that some will mis-perceive it. That’s just the way it is, and most importantly, there’s an excellent chance you will never know if it’s been mis-perceived.

Pattis thinks lawyers should post this kind of stuff, as he has an interest in the public seeing more of how the law works in actual practice. In a discussion of the post, and criticism he encountered, he explained:

I am adamant that there are not enough trial lawyers as judges. There are none on the Supreme Court. Every time a nomination to the court arises, I go into a funk about the injustice of it all, and write about why the court would be a better place with trial lawyers on it. Another writer has dubbed this the Trench Lawyer Movement. I like the sound of that. Trial lawyers of the world unite! We have nothing to lose but the courts!

So I report daily from the trenches about what I am doing. What kind of case am I appearing in?; am I in trial?, or engaged in trial prep? The “Tweeting” is inoffensive, or so I had hoped, as it reflects fewer than 140 characters. Others have begun to post trench menus of their own, reporting on their days in court. Slowly a sense of common purpose arises among lawyers with similar vocations. If trench menus help trial lawyers find one another and communicate, all the better. At least I think so. Or, to put it another way, beware the asshat masquerading as ethicist.

He’s dead-on regarding the lack of trial lawyers on the Supreme Court. I’ve discussed this here also. But does that address the issue of the content of the actual postings?

Scott Greenfield clearly isn’t a fan of these “trench menus” that seem to be going around the criminal defense blogosphere, writing:

In the meantime, you’re giving up information to anyone who bothers to read your twits. A prosecutor can announce that he’s ready for trial, knowing that you’ve got three other cases to cover in three other courthouses today, blowing a potential speedy trial dismissal so that you can broadcast your ego. Wonder how happy your defendant would be to know that you gave his motion away to be a big man on twitter?

He goes on in another post to explain why he doesn’t discuss his cases, writing:

But my lack of discussion has nothing to do with that, and everything to do with my decision to not discuss my cases to avoid any possibility that a confidence or strategy will be disclosed. I don’t own my cases, and they aren’t mine to write about. They belong to my clients, and my clients don’t want the worst experience of their lives strewn across the internet. I respect that, so I don’t kiss and tell.

As for me, I rarely write about a case or client. Did you see that qualifier? Rarely? When I started this blog, I did a couple of “day in the life” types of posts, in the form of photo essays, that reveal little about any case or client (and whose formatting got screwed up when I switched to WordPress, but I’ve been too busy to deal with it). I also didn’t think they were interesting enough to continue.

But I share Pattis’ desire to publicly explore more of what we do in the public eye, and I did do a day-in-the-life series of what it was like to try a case. I held all the posts until the trial was over, talking little about the details of the case, and did so with the permission of the client. The series remains one of my favorites, though that sentiment is not necessarily shared by my readers.

And I also did one post on an active case, with the permission of the client, after it landed on the front page of the newspaper,which started with this heads-up:

A week ago I quietly passed my three year blawgiversary. And now after three years I’m doing something I’ve never done here; writing about a pending matter in my office.

In each case, I read through the posts trying to see how they could be mis-read by anyone, before posting. I don’t want any client (past, present or future) or any juror, to think I’m even close to any kind of ethical line.

Sometimes, it isn’t about whether the lawyer is doing something improper, but about the much broader category of appearing to be improper. And that is the higher standard all blogging or twittering lawyers should, I think, aspire to. Any damage, will remain completely hidden. And it isn’t about the appearance of something improper as lawyers might see it, but how it might be viewed by the public.

Caveat blogeur.

Lessons in Blogging

Some bloggers hate to link outside their own site, under the belief that it drives visitors away. Others will link, but only to “friendly” sites that agree with the author.

In steps Walter Olson, of Overlawyered fame, displaying once again why he is a master blogger; Linking directly to someone who criticizes him.

In his July 26th round-up you will find this little note:

An injury lawyer reads and reacts to my first book, The Litigation Explosion [Alan Crede]

Now most folks don’t know who Alan Crede is, as he is a relative newcomer to the legal blogosphere. But the cite Olson gives is to an exceptional post on the poverty of new ideas in the tort “reform” movement, of which Olson has been a pretty big player for awhile.

But whereas most bloggers would ignore such criticism, or silently fume, Olson links to it, showing the other side of the coin to consider. Crede’s points may be good, or not, but it is for the reader to decide.

Not too shabby. And a damn good lesson for new bloggers trying to understand how the blogosphere works in its many interlocking ways. Good bloggers don’t view the visitor as a one-shot deal, but as a recurring reader. If you write well and provide quality links when deserved, the readers come back. Google made its fortune, its worth noting, by sending people away from its site.

Take note also that Crede “gets it” with respect to blogging, as he likewise linked to Olson’s sites at Overlawyered and Point of Law (though Olson has now moved from PoL to Cato).

June 4th, 2010

When the Mainstream Media Swipes the Blogger’s Goods

I’ve been mulling this over for a few days, undecided if I should write about how the mainstream media swiped an original story I published last week. And then I saw that someone else just went down the same road.

Danny Sullivan wrote How The Mainstream Media Stole Our News Story Without Credit. And in it he told the story of a ludicrous lawsuit of a woman who sued Google after she was hit by a car after following Google directions. The media loves these types of lawsuits — those outliers of the courthouse that make people scratch their heads and wonder at the stupidity of mankind. And I usually watch them due to the deleterious effect that they have on the legitimate suits in the courthouse that never see the papers.

In my story, I wrote about the lawyers representing the 10,000 September 11 responders that had been sickened, and who had brought suit. A massive settlement — as much as $657M — had been scuttled in March by Judge Alvin Hellerstein who complained about the legal fees that plaintiffs counsel would get. He wanted the lawyers to cut their fees so that the claimants would get more. (They were to receive approximately the same as defense counsel, but only the plaintiffs who had taken the risk and put up their own money were singled out.)

There were thousands of articles written about the busted settlement, due to the extraordinary nature of September 11, the 10,000 claimants, and more than half a billion dollars at stake.

The newsworthy part was the two letters that I published early on Friday May 28th — they were not part of the public file — that disclosed a willingness by plaintiffs’ counsel to cut their fees from 33% to 25%. While settlement negotiations are usually private, it busted out into public view when one plaintiff’s firm demanded in a letter to the court that they get their full fee. The firm apparently copied every lawyer involved, thereby insuring that some member of the press would get their hands on it.

I published the letters, both as a hard news story along with my commentary at the end. Above the Law picked it up that same day and ran it as its first item in its Morning Docket with other hard news items. That basically guaranteed wide distribution.

The Daily News then used the material on Sunday to run a moronic editorial called Shave ‘Em Closer, about cutting the legal fees even further. And in doing so they failed to give credit for where they got the information. This left the reader to believe the hard news part of the editorial was from their own news gathering.

Now a short rant on the substance of the editorial. Here was their justification:

Envisioning an enormous payday, the lead attorneys in the case, a firm called Worby Groner Edelman & Napoli Bern, signed up sickened 9/11 workers when few others paid any mind to their epidemic illnesses. Retainer agreements set the legal fees at 33% of any recoveries.

Missing from every part of the editorial is the $30M plaintiffs’ counsel spent out of their own pockets, and the spectacular risk of taking the suit. Essentially, if the suit failed, the lawyers would not only have wasted seven years of their lives, but faced personal and professional ruin. No one else involved in the litigation was asked to cut their fees. Here’s an idea for the News: Why not cut your prices in half? I think you charge too much. Please don’t belly-ache about your expenses and risks in running your operation. You clearly don’t care about such things.

OK, Daily News rant over, back to the main subject. The Associated Press read the Daily News editorial and then created a new story based upon it. They apparently failed to speak to the News or bothered looking for other sources for the story. They simply parroted what the News said. No cites to original sources. And once in the hands of the AP, off the story went around the world.

Is this a self-interested, petulant complaint by me? I thought it might be and was going to kill the idea of writing about it until I saw Danny Sullivan’s piece on the exact same subject. I’m obviously not alone.

What is it about the mainstream media that believes they can just swipe the stories of others and run with them without attribution?

Elsewhere:

Mainstream media criticized for lack of Google Maps lawsuit story sourcing (Dave Parrack @ Tech.Blorg)

The mainstream media has for year, moaned about websites and blogs using their stories without giving proper credit to the original source. Which makes it slightly embarrassing when the shoe is revealed to be on the other foot… [more]

Should Mainstream Media Be Held to Different Standards Than Bloggers? (Chris Crum @ TechProNews)

Should mainstream media be held to different standards than bloggers when it comes to crediting sources? Mainstream media agencies have frequently turned their noses up at bloggers, essentially claiming that they steal and repurpose the work of their hard working journalists. While this may be true in some cases, it is hardly fair to say that this is true in general. In fact, this week, we’ve seen a clear example of the hypocrisy of this notion, because mainstream media publications are clearly just as guilty as blogs when it comes to improper crediting of sources… [more]

Online Journalism Ethics: The Link and Attribution Game (Eric Lipman @ Legal Blog Watch)

…[Sullivan’s] post on his personal blog goes into painstaking detail about the chronology of the story’s proliferation out here on the interwebs, and who linked, or failed to link, to whom…The comments on Sullivan’s post contain a spirited discussion of journalistic Netiquette, and are worth a perusal… [more]

Audit Notes (Columbia Journalism Review)

…Not giving credit for a scoop is uncool, but it’s pretty low on the scale of journalistic sins. It is a nice shiv in the side of newspapers complaining about blogs and aggregators ripping them off…[more]

May 13th, 2010

Radius of Influence: Talk Today in Tampa

I spoke to today in Tampa at the Radius of Influence conference on attorney marketing. But since I made the presentation without PowerPoint or other visual aids, just an old-fashioned talk with questions and answers, it left participants to rely on equally old-fashioned note taking.

So this post provides the attendees with an outline of my remarks, as derived from some postings over the years. Many of the people were from InjuryBoard, who co-hosted along with the American Association for Justice. InjuryBoard, for those that don’t know, is a group blog of personal injury attorneys that has had a spotty record with respect to creating quality posts, with some using their blogs to discuss local accidents and using the names of the victims.

As many know, I’ve been sharply critical of conduct that I view as electronic solicitation.

So this was the premise of the talk: Most attorney advertising sucks. But don’t take my word for it, as this is what federal judge Frederick Scullin, Jr. said about it in Alexander v. Cahill (the suit over the constitutionality of New York’s attorney advertising rules):

Without question there has been a proliferation of tasteless, and at times obnoxious, methods of attorney advertising in recent years. New technology and an increase in the types of media available for advertising have exacerbated this problem and made it more ubiquitous. As a result, among other things, the public perception of the legal profession has been greatly diminished.

I see this same attitude when I go to pick juries, with jurors rolling their eyes, often at the mere mention that they may be sitting on a personal injury case. There is no question about it; the small number of lawyers that engage in the tasteless and obnoxious advertising hurts all claimants that set foot in the courthouse, and attorneys in general.

My objective was to change some minds and urge people to stick to quality so that the profession does not get downgraded further, and so that claimants aren’t further hurt by the juror cynicism that their conduct breeds. In the process, the reputation of the attorneys may be enhanced and they may find themselves building relationships with others who value their opinions.

Perhaps they can write about tort “reform,” pending legislation, decisions of interest and other subjects in an interesting and fun way. Instead of racing to the bottom in marketing, perhaps they can build a reputation by writing well on subjects that they already know a lot about. And engage the rest of the legal blogosphere in the process so that they do not remain an island unto themselves.

Along those lines, the following posts were used as the framework for my 50 minutes at the mike:

Better Blogging – 12 Tips (11/18/07)

Attorney Solicitation 2.0 — Is It Ethical? (12/7/07)

This Blog for Sale (April Fool’s Day, 2009)

I Hate My Website (5/26/09)

And my all time favorite blog posting on this subject, from Austin criminal defense attorney Jamie Spencer: If you too have driven your car into a pool…

And remember, you are being watched by your friends and your neighbors. And your jurors. You can’t build a reputation, and earn respect from others, if you are wallowing in the gutter.

April 15th, 2010

Does Blogging Bring Business?

Two weeks ago Lance Godard posed this question to me in Blawg Review #257:

You’re an active Web 2.0 participant. What specific impact on business, if any, have you seen from your online activities?

Since it’s a question I’ve heard a hundred times before it must be a reasonable one, and one worth discussing.

The answer, however, is impossible to quantify, and this is why: When potential clients I ask them how they got my name. I’m required to ask because, if I take a new matter, I must report that piece of information to the Office of Court Administration.

But what if the answer is, as often happens, an embarrassed “web” or “Internet” or “computer,” then what? It’s possible that they hit my website, a Google ad that I sometimes run, or that they stumbled on this blog. Or its possible that a friend or relative found me one of those ways and then passed the information on.

Which site they hit first is the type of question a marketer would want to have answered. And in theory a lawyer could try to find out which one by asking all manner of follow-up questions while the subject was fresh in the caller’s mind.

But I never ask. Because the answer is completely irrelevant to any issue that the caller has. They called because Mom’s cancer wasn’t diagnosed in time or little Johnny was hit by a car. They didn’t call to talk about marketing, web ads, blogs or any of that other stuff. They called because they have a problem. That which may be interesting to marketers isn’t interesting to the potential client.

And if it isn’t interesting to the client or relevant to any issue that they have, then it doesn’t matter to me. The moment when someone is distraught over a family member in the hospital is no time to satisfy an idle intellectual curiosity.

The reality is that, before I had this blog, I already had a number of people find me due to my website, which is pretty extensive. That wasn’t the primary way, of course, because I received referrals from former clients and lawyers that knew me.

The calls that come from “the web” tend to be cases I’m less likely to take. That’s because the calls haven’t been screened by someone else that knows me. Many of the web callers have previously been rejected by others, a conclusion that is generally pretty easy to divine within moments of the call starting.

There are, in other words, way too many variables for me to figure out what exact effect this blog has. The only time I know for sure is when attorneys that find this blog call me, as they will introduce themselves that way. Lawyers can be dispassionate about legal issues and chat for a moment or two before getting to the reason for the call. Potential clients, on the other hand, want to talk immediately about the incident.

So if it’s impossible to determine what effect a blog might have on marketing, why spend so much time on it? And the answer is easy; because I enjoy it. No one should blog if they don’t find the actual activity rewarding for itself, for it is immediately apparent from the writing if the person is doing it simply to game Google for clients, as opposed to writing for enjoyment.

When lawyers who enjoy the medium blog, you see personality. You see passion. You see opinions. You see people interviewing George Bush’s dog after he bit someone. You see stuff that they don’t teach in law school, and they don’t teach in marketing school.

Sis months ago Scott Greenfield wrote, regarding all the law bloggers coming to town:

Most new blogs are doomed to death from the outset, created for the wrong reason and certain to fail to achieve their creator’s purpose. Most offer neither insight nor viewpoint, as their creators are scared to death that taking a firm and clear position might offend a reader, a potential client. After all, the vast majority of blogs are born solely as a marketing vehicle, even if the creators follow the sound advice not to make them look too “markety.”
….

The barrier to entry into the blawgosphere has increased dramatically. It’s not one of cost, or concept, as much as one of merit, focus and purpose. If you have the desire to write, the guts to write something worth reading and the stomach to deal with the constant onslaught of stupid and crazy readers, there’s a place for you in the blawgosphere. If you think it’s the path to success in your law practice, you will be sorry and your blog will fail.
…..
When I did a CLE with Kevin [O’Keefe], who was busily promoting blogging as the way to expose lawyer to the world, I responded to his enthusiasm with a caution: Anyone can have a blawg. Everyone cannot.

Thus comes Greenfield’s Law: Everyone can blog, but not everyone should. Because if you aren’t enjoying it, it will show.

So the answer to the question — What specific impact on business, if any, have you see from your online activities? — is this: I have no idea, though I know that there are many lawyers around the country that now know who I am, and that the fun I have in writing in this tiny corner of cyberspace has raised my general profile. That is a form of indirect marketing that I discussed last year, and can also result, for example, in a law blogger being quoted in the paper if they can talk authoritatively on a subject.

But that type of general profile-raising isn’t the kind of “specific impact” that can be quantified anymore than one can quantify the effect of writing an op-ed for the local paper or law magazine.