August 29th, 2013

Enough with the LinkedIn Endorsements!

linkedin_log0They come poring in to my email these days — LinkedIn endorsements. And I still can’t figure out why this is happening.

When I joined LinkedIn a couple years back it was to see what this other social network was and post my bio in case anyone using the service wanted to find me. I assumed it was a pretty pointless exercise since I already have a pretty good web footprint, but hey, you never know if someone is going to invent a better toaster. Twitter, after all, supplanted my RSS feed.

In doing so, I also accepted connections from other lawyers since this was just a simple click and it cost me almost no time. As long as I didn’t smell a marketeer that was going to follow-up with email solicitations, it didn’t seem to matter much to me.

But LinkedIn wasn’t, as far as I could tell, a better toaster, and it just seemed to be yet another gathering point for people to connect with others, and yet another way to spend time that could be better spent with doing actual work, or time with family.

My wife, a recruiter for dot com companies, loves the site as it enables her to look for people with certain attributes to fill positions. For job hunters, it can be valuable. But for a practicing lawyer to be spending time there?

Every so often I noodled around with it, and joined a legal blogging group that I diligently checked once or twice a year. That was about it.

LinkedIn EndorsementsAnd then started the flood of people endorsing me. Friends, adversaries and strangers.  A first I was flattered. I’m easy that way.

But I was endorsed for legal practice areas sometimes, in areas where I don’t even practice.

I endorsed a few people back if I knew them and was familiar with their skills, but the problem is that the endorsements came in like a flood, sometimes multiple ones from the same person, but with new practice areas noted. And each time I tried to endorse someone back, in took me several minutes just to do it right, me not being the type to willy-nilly endorse people.

My brain finally started to fire properly and I belatedly realized that this endorsement racket is, for most, a massive self-congratulatory pat on the back to each other that doesn’t amount to a hill of beans. Sort of like a contest to see who can collect the most Twitter followers.

I’ve stopped, at least for now, because I can’t answer the one big question: What the hell is the point? It isn’t as if a potential personal injury client is going to go to LinkedIn to find an attorney. And even if they were already deeply involved with LinkedIn, and used the service on some regular basis, it isn’t as if such a person would be duped by the endorsement scam.

Would some other attorney find me and refer a case? Maybe. But they are also unlikely to be duped by the endorsement scam. They would see my bio, and they would ask around.

So I’ve stopped what I see as a pointless charade.

If folks want to use LinkedIn in order to find people connected in their particular industry, as my wife does, I get it. If I were looking for new employment, I would most definitely have my bio on that site.

But running around “endorsing” people doesn’t seem like time well spent.

 

April 19th, 2013

What Does A Smile Mean? (Updated x2)

Jeff Bauman in the hospital after the Boston Marathon bombing

Jeff Bauman in the hospital after the Boston Marathon bombing

Jeff Bauman is in the picture to the right. He is in the news right now because he had the great misfortune of being near one of the Boston Marathon bombs.

In the picture Bauman is smiling and giving a thumb’s up. He is also missing both of his legs. Actor Bradley Cooper is to the left and New England Patriots wide receiver Julian Edelman (who tweeted the picture) is to the right.

As soon as he woke up in the hospital, he asked for pen and paper to write that he saw the bomber and then went on to help the FBI.

I bring this smile photo up today because, over the years, I’ve covered several rulings by courts that deal with defense attorneys asking to fish through the Facebook and other social media sites of plaintiffs. They ask to fish because the plaintiff is smiling in a photo and claim that the smile is inconsistent with suffering.

Here are two examples: In Davids v. Novartis,  drug-maker Novartis went fishing on the basis of a smile in a photograph and Magistrate Judge Williams D. Wall slapped it down, writing, “is not clear to the court, one picture of Plaintiff smiling does not contradict her claim of suffering, nor is it sufficient evidence to warrant a further search into Plaintiff’s account.”

By contrast, a Suffolk County judge permitted access to Facebook based on the same theory, writing in Romano v. Steelcase:

In this regard, it appears that plaintiff’s public profile page on Facebook shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed. (see also, in contrast,  Eric Goldman’s commentary on the Romano photo)

Perhaps future courts will take note of the picture of Bauman, with a smile and a thumb’s up, to note that a smile in a snapshot does not magically mean everything is well.

As Bauman makes abundantly clear in this picture, people can smile for a multitude of reasons. It may be because they are happy to be alive. Or because someone said something humorous, even at a funeral. Or simply because of instinct when someone lifts a camera and hollers, “Say cheese.”

Judges and practitioners, please take note.

Heather Abbott, of Newport, R.I., is wheeled into a news conference past members of the media, behind, at Brigham and Women's Hospital, in Boston, Thursday, April 25, 2013. Abbott underwent a below the knee amputation during surgery on her left leg following injuries she sustained at the Boston Marathon bombings on April 15. (AP Photo/Steven Senne)Updated (4/26/13) – Another smile, this time from bombing victim Heather Abbott. One week after the bombing, she had her leg amputated. Prior attempts to surgically repair the leg had failed.

Three days after the amputation she appeared at a press conference. And smiled. You can see her expression here.

A smile may mean many things.

Updated June 24, 2013: People Magazine ran a cover photo in its June 11, 2013 edition — three amputees, three brave smiles. If a defendant tries to claim a smile in a photograph means the person isn’t injured, just show them this cover.PeopleMagazine-BostonStrong

 

March 15th, 2013

The Death of RSS and the Rise of Twitter

twitterWhen news broke yesterday that Google was dumping GoogleReader there were two kinds of reactions from bloggers noted Bruce Carton at Legal Blog Watch: Those for whom it was the end of the world and those who shrugged.

Carton was in full panic mode. I was a shrugger. I stopped using my RSS feed about a year or two ago, as it simply died a slow death for me.

And that’s because most anyone that I would have followed on RSS is placing links to their blog posts on Twitter. And Twitter also had the advantage of having (short) comments on those blog posts, which might also give you an idea if something was interesting or contentious. RSS was not just redundant, but inferior. (And, as I noted the other day, it can make you a better writer of legal briefs.)

Between Twitter, RSS, Facebook, LinkedIn, Google+, Instagram, blog post comments, YouTube, listservs, all manner of open discussion forums and whatever else is incubating now that I don’t know about, participating online can easily be a 24/7 job/hobby/distraction. But I have a real job and a real family, as most of you do, and I have to pick and choose. RSS lost. I also have an account at LinkedIn that I rarely check/use, I stopped using forums years ago, and I haven’t yet figured out what to do with Google+, or had the time to explore it.

I haven’t always been a fan of Twitter, and ripped it right after it came out. But I’ve come to appreciate its utility, an appreciation that comes only by carefully screening those I might follow.

When someone follows me, I generally look at their last three tweets (or “twits” as Scott Greenfield quite appropriately calls them). If those tweets are about a local accident, in the desperate hope the victim will log on to Twitter and find this brilliance, I know this is not a person to follow. So too with anyone in legal marketing. I need more phone calls and emails from these hucksters like I need a hole in the head.

But worse still are those that respond to an individual with something like “Ha!”, apparently forgetting that many others will see this gibberish, not just the one that sent the message being responded to. And even worse are those that write, “Thanks for the RT!” Thanks for sharing your insecurity with me by noting how important an RT is to you.

Why anyone would want this crap clogging their Twitter feed and rendering it useless is beyond me. Links and short comments on relevant stories are what works.

And you know those folks that are following thousands of others? It’s pretty clear such folks are not reading their own Twitter feeds. I don’t give a damn if they follow me or not.

Last year I spoke at a conference on social media down in Washington DC. And a woman that followed after me was hit by an audience question: If someone follows you on Twitter, are you supposed to follow them back? “Yes!” she cried, as that was the polite thing to do. I almost fell off my chair as I recognized the entire audience had just become dumber for having heard this.

Twitter can be a good tool that certainly replaces RSS. Just be sure to carefully cull the list of those you follow. You can follow me if you want (@Turkewitz) but don’t be upset if I don’t follow back. My brain has a limited capacity.

That’s my two pesos. Bruce Carton’s mileage will vary. And remember that no one will ever put the number of your Twitter follows on your headstone.

Elsewhere on the subject:

Really Simple Sign of the Future (Greenfield)

The End of GoogleReader: A Sign of Blogging’s Decline and Lessons for Lawyers (Elefant)

 

 

January 31st, 2013

Another Facebook Fishing Expedition Gets Slapped Down

The Facebook decisions seem to be coming fast and furious now.

Today, the Appellate Division (First Department) shot down yet another attempt by a defendant to go fishing around the plaintiff’s personal life, simply because Facebook activities “may reveal daily activities that contradict or conflict with”plaintiff’s claim isn’t enough. No way, said the appellate court, not good enough.

“Mere possession and utilization of a Facebook account is an insufficient basis to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection of the account’s usage.”

“To warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff’s Facebook account — that is, information that “contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”

So sayeth the court in Tapp v. New York State Urban Dev. Corp.

The other Facebook decisions and discussion on my site are at this link.

 

 

 

January 25th, 2013

NY Judge: Facebook Discovery Reviews May Open Flood Gates

This Facebook discovery decision came down January 11th. It is one that I’ve expected for a long time.

The backdrop: In the last few years there have been a plethora of demands by defense lawyers in personal injury cases for Facebook (and other social media) information. It often comes in the form of a demand for the plaintiff’s log in information, so that they can go snooping around looking for something damaging.

The first decision of any note came about due to a woman smiling in a photo on Facebook. The photo was public. If the woman is smiling, argued the defendants, maybe she isn’t in as much pain as she claims? (Romano v. Steelcase, 2010) And so it began.

Commercial litigators have dealt with e-discovery for years, sifting through documents that might number in the millions as emails and document drafts are sorted through with sophisticated software. Out-of-work lawyers get hired for peanuts to sit in dreary dungeons going through them.

But such discovery is mostly unknown to the personal injury bar. The exploding use of social media, and the creation of spectacular quantities of data, is now changing that.

This data explosion and the desire of defendants to access it has ramifications for the courts. Who is to say what should be disclosed or not? Well, the court is to say. And in order to say, the court must review. Therein lies the problem.

In Staten Island, Justice Joseph Maltese wrestled with that issue two weeks ago at the trial level in Fawcett v. Altieri. Fawcett’s action alleges assault and battery by Altieri and injury to Fawcett’s eye.

Defendants moved for social media data and the plaintiffs cross-moved for a protective order.  The defendants demanded:

authorizations to permit the defendants to obtain full access to and copies of Plaintiff’s current and historical records and/or information and photographs on Plaintiff’s social media website pages, including but not limited to Facebook, MySpace, Friendster, Flickr, and any other social media websites.

In the face of discovery demands, courts have to deal with what his “material and necessary.” The court noted the wide array of things that social media is used for:

The court takes judicial notice that subscribers to these sites share their political views, their vacation pictures, and various other thoughts and concerns that subscribers deem fit to broadcast to those viewing on the internet. Whether these broadcasts take the form of “tweets,” or postings to a user’s “wall,” the intent of the users is to disseminate this information.

This wide array of data is important because, if some material is to be disclosed, someone impartial will have to sift through it. The fact that privacy settings may be cranked up high is unimportant. An old fashioned hand-written diary may be private, but it also may be discoverable in certain circumstances.

And so defendants must show, in order to gain access to private information, a “factual predicate” for doing so, which is another way of saying that a party, to gain access, “must show with some credible facts that the adversary subscriber has posted information or photographs that are relevant to the facts of the case at hand.” In this case, Justice Maltese noted that depositions hadn’t even been held yet, and no actual predicate had been shown.

The judicial burden is extraordinary. The judge noted that “asking courts to review hundreds of transmissions ‘in camera’ should not be the all purpose solution to protect the rights of litigants. Courts do not have the time or resources to be the researchers for advocates seeking some tidbit of information that may be relevant in a tort claim.”

This is exactly the point I made back in October 2011 after a lower court told the plaintiff to disclose everything, and the appellate division reversed and threw it back to the trial court to do a “more specific identification of plaintiff’s Facebook information that is relevant, in that it contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.” (Patterson v. Turner)

I noted then that, if lower courts were forced to actually do such determinations, they would be swamped by requests. They would have to set the bar of discovery high, just to survive the paper onslaught. I  wrote that:

What does this mean for the lower courts? That if they see fit to grant a request for Facebook or similar records, the judge will be forced to do in camera reviews of potentially voluminous records comprising all manner of notes that might come from Facebook, My Space, private blogs, Twitter,  emails, texts and other places. The digital age has spawned an extraordinary boatload of information that courts will have to sift through when demands are made by overeager lawyers hoping to stumble upon some smoking gun.

Justice Maltese has concluded, as had I, that someone has to go through all that crap. OK, he doesn’t say it exactly that way, but he comes damn close:

As a matter of judicial policy, such a fishing expedition is not a sufficient basis to open the flood gates of meandering thoughts or silly postings to be used to impeach a party in a simple assault or negligence action without any good cause to believe that any incriminating statement was ever made and publicized in the social media. These are not matters of national security or part of a criminal investigation. This is a civil tort matter of a minor assault that should have a good faith basis other than supposition, hope or speculation that some comment was made that may be relevant to the case at hand.

This point can’t be made strong enough: Anyone opposing a discovery order for social medial records had damn well better point out to the court that this is not a one-time deal. When the camel’s nose gets under the tent, the rest of the camel will surely follow.