October 10th, 2008

Blogging with Kevin O’Keefe

I had the pleasure Tuesday night of joining a panel of speakers on blogging at the New York City Bar Association. Our host was blogging guru Kevin O’Keefe (Real Lawyers Have Blogs), and also sitting on the panel were Scott Greenfield (Simple Justice) and Dan Clement (New York Divorce Report). Each has a summary of the event at the above links.

The evening was a pleasure, and not just because these are really easy CLE credits for me. While I can’t contribute the way Kevin can on the technical aspects of blogging — I had a web guy set up this template for me and do all the technical heavy lifting — I was able to contribute what I know on the subject of creating content. In that regard, my post on 12 tips to better blogging served as a summary of what I think works, and doesn’t work, in this medium.

But the one thing that jumped out at me above all else were the technical questions on getting started and the use of RSS feeds. Kevin spent a long time on this, which is ironic since just five minutes of playing with a feed reader will teach you more than listening to an hour of talk. RSS is one of those things that are best taught by actually doing it. All one needs is some basic guidance on where to find a feed reeder, and then a kid’s desire to play and have a little fun.

And it is that same fun factor, I might add, that makes for good blogging. Because without the desire to do it, the blog will fall flat. This space, for example, as been relatively quiet in recent months because I’ve been busy elsewhere, and I refuse to post something just for the sake of posting. I would rather the space be silent than fill it with nonsense. Because that would take the fun out of it.

October 7th, 2008

Med-Blogger Subpoened Over Comment on Blog

Medical blogger Westby “Dr. Wes” Fisher has been subpoenaed. Not over something he wrote, but over something a commenter wrote.

According to Wes:

I can tell you I was subpoenaed for a discovery deposition about one of my posts on this blog. I was not named as a party in the suit occurring in Cook County Circuit Court here in Illinois, mind you. Rather, the plantiff thought for sure that I knew one of the anonymous commenters on my blog. I did not. They insisted that I take down the post on my blog. I have not. They asked that I remove the comments identifying individuals on my blog. I have not and will not. They wanted me to take down an image I posted on my blog. It still stands.

More at his site, linked above.

Update – See also:
Physicians and Blogging (Kevin M.D.)

October 7th, 2008

I’m Sorry You’re A Jerk (Lawyering 101: Professionalism)

Over at Legal Antics, Nicole Black has a great letter from Dallas Attorney Jeff Murphrey to his opponent in a case, Dale Markland. The problem stems, apparently, from Markland’s failure to be accommodating on a deposition date when Hurricane Ike blew threw town, causing damage to Murphrey that needed to be attended to. This included excrement and other raw sewage and other nasty details. His apology letter is an instant classic. (Addendum: You can read both sides of the story if you want to decide who was the discourteous one. See update below.)

Contrast that letter to a recent conversation I had with opposing counsel in one of my cases. He made a motion and I needed more time to respond. It went like this:

Me: I need another two weeks on the xyz matter to put in my papers.
Him: Do you have a reason?
Me: Yes
Him: What is it?
Me: I would grant you the same courtesy if you asked.
Him: Good enough for me.

The lesson to all those that think they can gain some litigation advantage when the other side has a problem? What goes around comes around. The professional courtesy you seek two years from now either on this case or an unrelated one, either because you have a conflict or your kid became ill at a very inconvenient time, will not be returned if you fail to extend those courtesies yourselves.

(Also at Above the Law, WSJ Law Blog, Houston Press, and no doubt elsewhere)
=========================================================
Updated 10/13/08: Recipient of “I’m Sorry” Letter Fights Back with New Website To Regain Reputation

October 7th, 2008

Lawyer Caught Coaching Witness In the Courtroom (Ted Stevens Trial)

The news came out from the Sen. Ted Stevens corruption trial: A lawyer was sending signals to the witness on the stand. Oy. According to this AP report:

The federal judge overseeing the case accused the lawyer for the government’s star witness of making secret signals to his client during a crucial cross-examination.

Those of us who stand in the well of the courtroom for a living will see, or sense, this from time to time. It comes generally in three distinct forms, and I suggest here ways to handle that problem:

1. The speaking objection. Opposing counsel doesn’t like the question and thinks the witness needs a little help. Thus comes the “speaking objection” in which the lawyer blurts out, in the guise of an objection, that the witness already said xyz on the subject, or in some other way hints the witness how to answer. Some judges already have sharp rules in place for this, but others don’t.

Solution: If it is obvious, and the judge hasn’t jumped in, you audibly object to the lawyer coaching the witness with a speaking objection. Of course, you may incur the wrath of the judge with this, so tread carefully. Sidebar conferences may be called for. And, of course, at the earliest opportunity when the jury is out of the room a record should be made. It is one way to stop it from recurring, even if the damage may already be done.

2. The head shake. The attorney makes a face or shakes his/her head. This can be a subconscious thing. The problem is that it may not be seen by you if you are in the middle of a cross exam and, let’s put this mildly, have a brain preoccupied with getting that task done. One big clue to help you out? Watch the eyes of the witness. If you know your case and the cross-exam to be done, you won’t have your head buried in your notes and will see the eyes of the witness swivel as s/h seeks help.

Solution: When you see the witness look at opposing counsel, that is the time to say “Your lawyer can’t help you with that,” or “the jury is over here,” or a similar comment/question as the situation warrants.

3. Deliberate signals. In the Stevens case at the links above we have, according to the judge, deliberate signals being given. The solution though is the same as the head shake: Watch the eyes and pull the witness back to the testimony.

The only thing you can’t do is stay quiet (unless the judge has already acted, in which case silence is the order of the day unless you are asking for a curative instruction of some kind). So long as the issue is raised by either you or the judge, you can bet your last dollar that everyone in the courtroom will now be attuned to it if it happens in the future.

Palin v. Biden (Miss Congeniality v. Mr. Policy)

Tonight’s debate between Gov. Sarah Palin and Sen. Joe Biden looked like Miss Congeniality v. Mr. Policy. If you saw the debate you would have seen one vice presidential candidate try to charm the audience with a variety of folksy platitudes while the other talked policy.

I don’t generally talk politics here unless it relates to what I do. But in this case I make the exception because I think it does relate to being a trial lawyer.

If I ever tried to win a case by charming a jury, foregoing substance, the jury would dump me in a New York second. Maybe that charm stuff works elsewhere, but such superficial conduct would be viewed with extraordinary disdain if tried in a courtroom.

But that’s New York. Your mileage where you live may vary.