February 1st, 2012

Trial Prep and Twitter

Last week I was on trial — at three days it was the shortest one I ever had — and my trial prep included this: Deleting any Twitter messages that were political. My first post on Twitter was thee years ago, January 29, 2009. Since then I have made about 800+ posts.

So the few tweets on politics that I’ve made were taken down. None were overboard on anything — regular readers know that ad hominem attack isn’t exactly the way I write — but why take the chance?

The problem is that no matter how many times a juror is told to avoid looking up the people involved, some folks can’t help themselves. They might look up the lawyer. They might see the Twitter stream.

Despite what people think of New York as a bastion of liberalism, we have plenty of conservatives. Our recent past had Rudy Giuliani as NYC mayor and George Pataki as Governor. It doesn’t really matter if you are on the left or right of the political aisle, it is guarnateed that out of a jury pool some will have differing opinions.

And if you are the party with the burden of proof in a personal injury case (me) then you can’t afford to piss anyone off. This is particularly true in a presidential election year when politics dominates the news more so than at other times.

The same problem exists for web sites, of course. I’ve always cognizant of this (see, I Hate My Website from 2009) and try to govern myself accordingly. While there are some folks who take down their websites and replace them when on trial (or so I have heard) that isn’t something I’ve ever done.

Since no one generally cares about any tweet that is more than 10 nanoseconds old, this isn’t really an issue. But one person might care, that being the juror. So down they come.

Of course, the opposite might be true for criminal defense lawyers. With the burden on the prosecution, they need only convince that one lonely holdout. They may have a completely different view of keeping contentious political commentary up in place.

January 14th, 2012

Is “Article III Clerk” for Real? (Updated)

photo credit: FrogMiller, close up of US Constitution from National Archives

Have I seen this play before? A young guy, believing he is anonymous, spews on the web. When we last saw the show, it was starring a doctor known as Flea writing about his malpractice trial. He ended out on the front page of the Boston Globe.

Today we may be seeing the reincarnation of Flea, in the Twitter persona of Article III Clerk,* an arrogant, pompous judicial clerk writing about his boss and the litigants that come before the court. And doing so in scathing terms.

But is it real? Or is s/he merely a humorist of some type?

He wouldn’t be the first person to use an Article III pseudonym, of course, as Article III Groupie preceded him by many years, with a delicious wit at Underneath their Robes. She described herself as “a federal judicial starf**ker.” She had style. And A3G wasn’t anything close to arrogant as she ran her stories on judicial “divas and hotties.” When A3G finally revealed herself six years ago this week, she was actually David Lat. He quickly resigned his post as Assistant United States Attorney and went on to blogging greatness at Above the Law.

(For the non-lawyers, Article III refers to the third article of the Constitution, which establishes the judiciary. Rick Santorum thinks it’s the least important part of government. Why? Because it comes third:

“Article I is Congress, Article II is the president and Article III is the courts. If it was the most important, they wouldn’t have put it third.”

OK, I digressed, but you gotta admit that was worth it, right?)

Back to Article III Clerk. His Twitter feeds describes him thusly:

Current law clerk for a Senior U.S. District Judge on the East Coast. He’s really fucking old, so I roll the dice of justice on my own.

So right out of the box, before knowing nothing else about him, we know something is afoot. Is it humor, or a twenty-something speaking the truth and playing with matches under the cover of anonymity? When we peek inside his feed that just started on January 11th, we see some stuff that could constitute decent criticism and wit:

NOTE TO PLAINTIFF’S LAWYERS: If you ignore Twombly and Iqbal in the Opp to a MTD, you should be disbarred. They happened. Deal with it.

…

If you put “Esquire” after your name at the end of your motion, I will rule against you. Every. Time.

…

The opposition you filed was goddamn unreadable. You think I want 10 more typo-ridden pages about what light I should view evidence in?

Not bad. Could be worth repeating if you like that stuff.

But….and you knew there was going to be a “but” didn’t you? Let’s check out a few other tweets (or twits) that seem to dance up to the line — if not over that line if the feed is not a parody or satire, and could place the author’s license at risk:

Judge called from home today to “check in.” I got it under control you senile fuck. Go back to napping underneath 20 blankets.

…

Thing is, if I don’t grant this MSJ, this thing might actually go to trial. Which means I have to interact with Judge in person. Paaassssss.

…

Clerk of court is either on smack or she is retarded. 2 days since I gave her ruling. Release my brilliance to the people. Let them weep.

…

@lawschoollawlz I’m a de facto Art. III judge at age 27 & haven’t talked to “boss” in 3 days. What in the living fuck are you talking about?

…

I really, really hope the Judge doesn’t die while I’m clerking.

Not sure what to think. Would this person really want his identify disclosed? Remember the Golden Rule of the digital age: Don’t type anything you’re afraid to see on the front page of the paper. What are the ramifications, if he speaks the truth? If truthful, he’s revealed that he works for a senior federal judge on the east coast who may not be well, that he is 27, and the court clerk is female. That’s a lot of biographical data to narrow down the possibilities. Also, that he’s incredibly arrogant for a young pup that may never have stood in the well himself.

Hopefully, it’s just an attempt at humor.

*Update 1/15/12 – The Twitter feed of @ArticleIIIClerk has gone dead. Which leads me to guess it might have been real, and not a parody. Also, that the clerk woke up and realized he was making a big mistake. Just my guess. Anyone with real info, feel free to let me know in the comments or via email.

November 18th, 2010

Abraham Lincoln, Twitter, and This Blog

Tomorrow is November 19th. Seven score and seven years ago, on that date, Abraham Lincoln dedicated the Gettysburg battle field with one of the great speeches in American history (reprinted below). And yet, it’s only 272 words. That’s something to think about when you hit page 20 of your next brief.

I also put Twitter in the post title. How can something so trite and easily abused be compared to the Gettysburg Address? Because it teaches people to be succinct.

And today is the four-year anniversary of this blog. When I started it, it was with the desire to take complex ideas and break them down to simple concepts. I don’t know how well that worked, but it’s something I strive for and seems related to the concepts above.

I picked up that lesson from my father, who ran one of the largest plaintiff’s medical malpractice departments in New York until he retired. He demanded that every case be described in one line, almost like a Twitter post. Because if you knew the one-liner, it meant you knew the case. It also came in handy when the judge asked you what the case was about. So a case might be described, for instance, as a “10 month failure to diagnose and treat breast cancer in a 53 year old woman resulting in…”

And master legal writer Bryan Garner insists that, when framing an issue for court, a lawyer should do so in no more than 75 words. If you can’t do it in 75 words you don’t understand it, and therefore you can’t communicate it to the court

Brevity and clarity are important. They focus the brain.

And with that, I give you America’s most famous trial lawyer, who delivered these words 147 years ago:

Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation, so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we can not dedicate, we can not consecrate, we can not hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.

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.

Twitter Followers and Stalkers — Can You Tell the Difference?

[This post was edited 7/30/10 as some links went dead]

In 1993 The New Yorker published this now-classic cartoon with the caption, “On the Internet, nobody knows you’re a dog.” Initially created for a little chuckle, it’s turned into a prophetic warning. Anyone could be lurking on the other side of that keyboard.

One example played out on the websites of two law bloggers who were being cyber-stalked. The stalker happened to be a convicted rapist, and Twitter was his tool.

And this is worth writing about as a lesson to newcomers to the blogosphere and those who think acquiring a jillion Twitter followers, or a bazillion Facebook friends, will magically lead your nascent law firm down the Yellow Brick Road to Oz. It doesn’t work that way. And it could even be dangerous.

You would be foolish not heed the dangers of the web. Don’t be so quick to add Twitter and Facebook buddies under the pretension that these networks give you a level of familiarity with others if that familiarity doesn’t actually exist. If you don’t know how to say no then you aren’t an adult.

Just as social networks are used by the innocent, so too are they used by trolls, malcontents and criminals. You don’t want to learn the hard way about the difference between a follower and a stalker. This is particularly true since, as Kevin O’Keefe points out, there is software that will help buy Twitter followers. He issues his own mea cupla on once touting the benefits of large numbers of followers.

I’ve never been a fan of Twitter and the blizzard of garbage it sends over the transom at the user. If you use the service (or any other) quality must take precedence over quantity.

As Sergeant Phil Esterhaus used to say on Hill Street Blues, “Hey, let’s be careful out there.”