10 February 2010

A Round Tuit (18)

A Round Tuit

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

1931 Rinso Detergent Advertisement

Was it because a legal technology conference took place in New York or a legal marketing conference took place in Seattle? Both? Neither? Whatever it was, this week seemed to have more than its share of debate about the character of new legal blogging and of legal marketing more generally. There were of course hurt feelings, accusations of bullying, and calls for civil discourse (meaning, unfortunately, an absence of criticism during periods of self-promotion).

In recent months, Thomson Reuters' FindLaw division has drawn fire from several bloggers for its use of questionable content and sloppily-written posts, packaged under names identical or similar to more established legal blogs, as marketing vehicles for their clients. No one has been more vocal than Eric Turkewitz, whose respected New York Personal Injury Law Blog acquired a less-respected counterpart in FindLaw's identically-named advertising pseudo-blog. Even before his experience with FindLaw's commercial blogging efforts, he was somewhat ambivalent about even more benign lawyer promotion programs. One such program, SuperLawyers, was the subject of a memorable post from last year after he was somewhat surprised to discover his name amongst the great and good; while vaguely proud of the recognition, Turkewitz was critical of the award's opaque selection criteria and processes. As he noted this week, Thomson Reuters' recent acquisition of SuperLawyers makes it unlikely that Turkewitz needs to worry about being selected again:
You see, folks, FindLaw will want it's big-paying customers to be included in the SuperLawyer listings. And since SuperLawyers thrives on the very expensive magazine ads that supplement its listings, and FindLaw has an existing catalogue of lawyers willing to spend heavily on marketing, those lawyers are real important. Some B-law grad was whispering the magic word "synergy" into the ears of the powers-that-be.

So while the purchase by Thomson West would seem at first blush to bolster the credibility of SuperLawyers, the company actually runs smack into an inherent conflict of interest that gums up the works. While it tries to build an objective rating system with SuperLawyers it is also taking big money for the FindLaw listings. And that is a big problem if you want to claim objectivity in ratings.

Over at Bob Ambrogi's Law Sites, he writes that Thomson West intends to build a Chinese Wall of sorts between the companies.


Will it operate independently? Ask yourself this: Do you trust any company that would exploit a dead child for ad copy on a faux-blog?

FindLaw's credibility is currently around zilch. And that means that everything that comes near it will be adversely affected. Thomson West will try to build up the SuperLawyer's brand, which already suffers from credibility problems. But as long as they keep FindLaw's dreck-blogs, they will run into continuing problems. And that is in addition to the conflict and credibility issues.
Perhaps Turkewitz needn't be so concerned that Thomson Reuters' FindLaw will taint and exploit the SuperLawyers awards; as Gabe Acevedo reported, at the LegalTech conference Thomson Reuters' people seemed surprised to hear of the acquisition, offering Acevedo only blank stares and runaround. When Thomson Reuters found its public relations legs, it confirmed to him that SuperLawyers' independence within the organization would be guaranteed. Acevedo remained a bit dubious:
Well, I guess now I can sleep soundly at night again now that that piece of the puzzle has been solved. SuperLawyers, whose purpose is to recognize some of the top lawyers in their respective fields, will continue to operate as an independent entity, with the minor exception that it will now be owned by a major corporation that markets its products and services directly to lawyers. An interesting acquisition indeed...
Many of us who began blogging in a less commercial era wonder that attorneys will pay thousands upon thousands of dollars annually to entities like FindLaw for what is essentially a rudimentary website and something which could be built and hosted for nothing. Still, we can understand that it may be worth paying a premium for something which looks more professional; paying a million dollars for something which makes you a laughingstock, however, just makes you a... well, a MoFo. Kashmir Hill wasn't alone when she wondered what Morrison & Foerster were thinking when they rolled-out their expensive new website recently:
Morrison & Foerster has fully embraced the moniker MoFo. And now the firm appears to be embracing a WTF theme for its website.

MoFo rolled out the new website recently. Tipsters say the new site took years and many dollars to create. The design budget is rumored to be $1 million. (We’ve asked the firm to comment on the cost, but it has not responded.)

The site, however, doesn’t look like a million bucks.
Some of the site's graphics need to be seen to be truly enjoyed, if not fully understood. A series of puzzles are intended to illustrate the strengths and values of the firm; unfortunately, many are a bit too open to interpretation. A Rubik's Cube and a "man at work" icon are intended to illustrate "acuity and diligence"; as Hill noted, "we'll solve your puzzles and clean up your shit" seemed a more apt solution. Another page invites visitors to click on a series of twenty-five reasons why prospective clients should select the firm. Strangely, the designer selected a gunshot noise to accompany each click, producing an overall effect which "feels like being in a drive-by shooting." All in all, it makes me happier with the aged design of Infamy or Praise, which is based on a free template offered by Blogger and has changed very little since I began this blog many years ago.

While a bad online impression can be costly and embarrassing for a large firm like MoFo, it's hardly going to sink the firm. The stakes for many solo and small firm practitioners online can be greater. While they aren't spending a million dollars on their sites, what they do spend on designers, marketers, and — ugh — ghost writers has a more pronounced effect on their bottom lines. It's understandable that increasingly-desperate attorneys would turn to marketers, buy into their sales pitches, and expect immediate benefits. A number of those folks have found that maintaining an online presence is hardly as carefree as their marketing consultants have led them to believe. Some of those who were told that legal blogging was marketing gold have been dismayed at the criticism their unabashed self-promotion has attracted from more established and reputable legal bloggers; when criticized, a few responded angrily, others thoughtfully, some not at all, and a few quickly folded their tents and left as quickly as they arrived. Scott Greenfield welcomed these newcomers to the legal blogosphere, but with a word of advice — the marketers have lied to you:
The choir is busy singing the praises of blawging and social media. Create a blawg and find happiness and success, goes the refrain. Write well and they will come. No one talks about the dark side.


Write something and someone may disagree with you, and do so publicly on their blawg. Promote yourself and someone may knock you off your marketing pedestal and make you look like a fool. Or worse. None of the cheerleaders mention that there is no guarantee that you will find love or adoration online. None mention that you may well find yourself the butt of a thousand eyeballs if your well-written blawg post is not well-received.


I get it. I understand why you're here. But I didn't promise to leave you alone to promote yourself unmolested. Whoever sold you on the idea but neglected to define "conversation" is responsible. Maybe you're responsible. Maybe you're thoughts would be best kept rattling around inside your head rather than oozing out of your keyboard onto a public blawg.
Rachel Humphrey Fleet was one of these newcomers; after her first post was criticized by Greenfield, she expressed her disenchantment with him particularly and blogging generally in the comments to his post and deleted her blog entirely. Discussing that dust-up, Mark Draughn offered some tongue-in-cheek advice to newbies about "surviving Scott Greenfield" and some perspective on the generation gap between legal blogging veterans and newcomers to the medium. While he suggested that times have changed somewhat — the newer bloggers tend to have a less confrontational and combative style of writing — and seemed to imply that some of the gap may not be reconcilable, Draughn provided a number of very reasonable suggestions for addressing, resolving, and avoiding conflicts online. Jamison Koehler is a relative newcomer who has quickly found his way, drawing both praise and criticism from established voices online. Koehler has demonstrated a willingness to respond to his critics thoughtfully and has made one of the more rational and measured defenses of marketing-aware legal blogging. This week, he offers other newcomers the benefit of his recent experience:
Unlike lawyers with more established practices, I personally do not feel that I have the luxury of blogging for the sake of blogging. Just like many other lawyers who are opening up a new firm, I find myself needing to devote every waking moment to the building of that practice. If I cannot justify use of my time on blog as a marketing device, it is hard to justify use of this time at all, no matter how much I might enjoy it.

I understand this may be short-sighted. It means that, in order to attract the type of people who might employ my services, I need to focus on local issues affecting criminal practice in D.C. And it may mean, as Greenfield warns, that my blog will remain an “orphan” in the blawgosphere, one of the thousands out there that nobody reads.


I may need to revisit all of this in the future. In the meantime, while my combined website/blog has not brought in a whole lot of new clients, the business it has generated has in fact been the difference between success and failure for my firm. If I need to add a few key search terms to a title or post to draw in more readers, that’s what I will do. And if it means I need to sit on the sidelines of the blawgosphere for a while, that is fine too.
With the LegalTech conference recently concluded in New York, Avvo ran its own conference in Seattle. Lisa Kennelly rounded-up a number of interviews LexBlog conducted with some of the more prominent names at the conference. One name not on that list was Sonny Cohen, a marketing consultant. Cohen objected to the criticism of the Avvo conference by Scott Greenfield and Brian Tannebaum (both of whom Avvo had invited to present but declined), which was displayed on an #avvo hashtag-produced "twitterfall". Cohen didn't appreciate the distraction and expressed that on Twitter and his blog:
Ironically, the essence of what these two harassers were saying was not incorrect. In fact, they had some great points about abuse of social media, thoughtless blogging and even the alleged “social media gurus” (SMG) who industrialize the process of building real human networks. However, as one who was present, what was clear was there was a mis-match between their sterotype of the interests of the attendees and the reality of what people were focused on learning and being taught. The flamers were flinging mud but they had the wrong target.

In the end, the rogue Tweeters were not effective but simply annoying, prompting @kaitlinjanusz to respond, “no one wants to hire attorneys who are malicious to other attorneys via social media. The avvocating conference is wonderful.” I, too, elected to offer my two cents, observing with some tongue in cheek, “Most diminished brand of the day: @ScottGreenfield. Forget it. I’m not referring any of my criminal friends for you to defend. #avvo.” After a few more insults directed at the conference organizers, the attendees and me, the squabblers went away – hopefully to do some legal business and not editorialize by remote.
Mark Bennett, for one, was amused by Cohen's outburst:
Cohen’s post, and his Twitter response to Scott, were overwrought and self-important to the point of narcissism. It’s Twitter; if someone says something you don’t want to hear, you can block it. Brian and Scott didn’t even know that Avvo was displaying the timeline on the podium. (Had they known, they would have had a lot more fun with it.)

Saving for another day modern Homo Internetus’s tendency to throw around heavy words like “harassment” in response to the slightest criticism: are narcissism and hysteria prerequisites for a job as an internet marketer?
The last word was, as it should be, Greenfield's:
The Avvo guys get it. Authentic doesn't mean blow kisses or smoke. That's not how lawyers roll, unless their brains have been consumed by the self-promotion endorphins caused by starvation and desperation, and they think that it will endear them to someone who will throw them some crappy case so they can pay the phone bill for another month.


To his credit, [Cohen] packed more into one little twit than any I've ever seen before. Unfortunately, it was also the singular most bizarre and disturbing demonstration of a failed grasp of reality that has come out of any marketer. Or in Sonny's case, a man who wanted to be a lawyer marketer but didn't hitch his mule to the wagon when he was still young enough to grasp that the day's of marketing laundry detergent as "new and improved" were enough to make a living.

I felt badly for Sonny. In one twit, he branded himself as wholly disconnected from the very marketing niche that he paid good money to learn.


While there's certainly a strong element of narcissism in Sonny's view, he's more Willy Loman than Slackoisie. He's fighting for the last vestige of dignity, having made the critical mistake of revealing himself to the legal world as someone so far outside, so utterly disconnected, that he thought the marketing was more important than the lawyers. After such a fundamental error, the likelihood that any lawyer would entrust his reputation and license in the hands of such a fool was essentially nonexistent. Sonny had killed any chance of moving into legal marketing with a single twit, and he had nothing left to lose.

I feel badly for Sonny. As we get older, it becomes increasingly difficult to keep pace with change. Blink and the world can pass you by, as happened to Sonny. That has to be a horrible feeling, knowing that there's a Brave New World out there and you're not a part of it. The arrogance of youth is only surpassed by the hubris of age.

Sonny has no future in legal marketing. He doesn't "get" lawyers, what distinguishes selling a professional from selling laundry detergent. He clearly doesn't understand the internet, from twitter to blogs, having made such a horrendous error to start his downward spiral and to compound it by challenging the blawgosphere to salve his hurt marketer's pride.

But if you've got new and improved laundry detergent to sell, I bet Sonny is your man.

Help Wanted Sign

For all the legal talent out on the streets in a challenging economy, it can be surprisingly tough to find good help these days. Anticipating personnel needs at the high court, Mike Sacks is pre-gaming a couple of prospective vacancies at the SCOTUS, one (Justice Stevens) more likely than that other (Justice Ginsburg). His picks are Judge Diane Wood for the former position and Judge Leah Ward Sears, Neal Katyal, or Harold Koh for the latter. My own choice for Supreme Court robes is currently retired and was, sadly, recently censured. Kevin Underhill discussed former Los Angeles County Judge Brett Klein this week:
Last year, Los Angeles County Judge Brett Klein was presented with a proposed class-action settlement in which the plaintiffs' attorney would get $125,000, but class members would get only a $10 gift card, usable only at the store that allegedly violated the law in the first place. That is an example of the much-maligned "coupon settlement," in which a defendant can end up profiting from breaking the law because a consumer must buy something from the defendant to redeem the coupon. These can sometimes be okay, but Judge Klein didn't think this settlement was fair.


In a ruling that caught my eye when it came out last year, he ordered that the attorney also be paid in $10 gift cards, just like the people he represented. Under Klein's order, Neil Fineman was to receive 12,500 gift cards that he could put toward the purchase of any merchandise he liked, as long as he liked the women's clothing at Windsor Fashions.

That seemed like justice to me. But it turns out that someone (it's not clear who) filed a complaint with the state Commission on Judicial Performance over this incident. On February 2, the Commission censured Judge Klein (who has since retired), rather than, as the person who alerted me to the story suggested, giving him a medal.


Klein, who had been on the bench for nearly 20 years, stipulated to the result, possibly because he had retired anyway and so need not care. Lost in all this, of course, is the issue of the settlement itself, which as approved still requires the allegedly wronged consumers to go spend more money at the defendant's store in order to benefit from the settlement. Klein may have gone about this the wrong way, but his gift-card-fee requirement is still a great idea.
The Department of Justice is also hiring. As Walter Olson noted, however, they seem to have included some boilerplate equal opportunity notices where these may not be entirely advisable — the listing encouraged the "mentally retarded" to apply for a Trial Attorney position. David Lat also noticed that listing and observed:
In light of massive law-firm layoffs and the relative stability of government employment, high demand for federal jobs is unsurprising. You have to be a positively brilliant lawyer to land a government gig these days.

Or not. If you’ve applied to the U.S. Department of Justice without success, ask yourself: Do I have a normal or above-normal IQ?

If you do, you might be… overqualified.
Even the British are having hiring issues. Charon QC reported that an opening on the country's new Supreme Court has prompted "intrigue, jealousy, rejection, skulduggery and mysterious goings on":
[Reporter] Frances Gibb says, rightly in my view, that this is ‘an unedifying story, reflecting poorly on the selection of one of the country’s top judges’.. and she notes whether the idea of winding appointments to the judiciary from the ranks of academics and practising lawyers – which I think would probably be a good thing – is a sham. Jonathan Sumption QC appears to have been treated in a rather shoddy way – but perhaps that is ‘how things are done’ in the shadows of the establishment? I can’t believe so…and it certainly should not be so.

Extraordinary goings on?

Odds n Ends Shop

After a local television weatherman referred on-air to a locality's nine inches of snowfall as "[t]he biggest amount I could find — almost as big as me", a YouTube video of the gaffe quickly made the rounds. Nearly as quickly, the station issued DMCA takedown notices to spare its presenter and itself further embarrassment. In yet another demonstration of the Streisand Effect, the station's disingenuous takedown efforts generated even more publicity and, this week, attracted a bit of attention in the blogosphere. Mike Masnick took the station to task:
[T]he station, WHDH, has been aggressively issuing DMCA takedowns over the video (who knows how long the video above will stay up), even though it's almost certainly fair use, and courts have found that those sending takedowns need to take fair use into account.


The DMCA allows copyright holders to shoot first and not care later. And that's a problem, because it can put a serious crimp on public discussion (which raises some serious First Amendment questions). Yes, in this case, it's just an off-color joke, but in many other cases it could be much more important speech.
Discussing the fair use justifications for the posted video, Justin Silverman also noted that:
The DMCA's notice-and-takedown mechanism puts the onus on the individual who posted the material to send a counter-notice asking that the material be put back up and usually raising some defense to copyright infringement, such as fair use. In this case there's a fairly strong argument that the 27-second clip of Bouchard is fair. The amount of the original broadcast used is very small, the purpose of the clip is to spur public discussion, and there is arguably no effect on WHDH's news market. It's likely WHDH either didn't consider fair use before ordering the clip's takedown, or it simply didn't care.

Either way, this lack of concern for fair use is common: A music publisher tried to silence a critical podcast. A blogger sought to block an advocacy ad. Opponents of same-sex marriage looked to remove an unflattering YouTube clip. These and other "Takedown Hall of Shame" inductees likely think that it is difficult to punish a copyright holder for failing to consider fair use (it's hard to prove), and probably take comfort in the fact that many ordinary Internet users lack the knowledge, time, or resources necessary to challenge the takedown.
A couple of legal bloggers discussed ethical concerns this week. The Namby Pamby offered an ethics exam, inviting his readers to discuss the ethical implications of breaking wind in a vacationing partner's office, amongst other concerns. In a slightly more serious vein, Robert Guest discussed how he lost two clients in thirty minutes and why this was a good thing, ethically speaking:
I met Client A yesterday for a brief consultation, and another I discussed the case with Client B via phone last week. They both dutifully appeared this morning in my office about 15 minutes apart and became (briefly) clients of Guest Law Firm PC.
I told each to meet me in the courtroom. I arrived in court and was reading the State's file on Client A when I realized I had just signed up two co defendants. Not only that, but the classic MPRE red flag two-people-in-the-same-car possession co defendants.


I quickly explained the situation to my soon to be ex clients and told them I would refund any payment and forever keep our conversations private. If they wanted a referral I would be glad to assist, but I could not take either case. 1.06 does allow representation of conflicted parties if the parties are made aware and consent. I didn't go that route....


Dropping two cases in one docket was bound to generate some debate among the lawyers present. One attorney advised I could keep one client and add a disclaimer to the contract. I dissented. I felt keeping either case was improper, even with consent of the parties.

I believe that having discussed the case with both parties I would have an unfair advantage should this case go to trial and/or should one party implicate the other. I believe this met the definition of "materially affected" in (2). In a co defendant possession case the classic defense is- "The drugs belong to X, not me." There is simply no way to disclaim/notify your way out of that scenario. It's a conflict, withdraw and move on.

A prosecutor in the courtroom agreed with my decision and stated that "You can always get two more clients, but if you lose your ticket (law license) you won't get anymore clients." That's a great line, I'm going to borrow that.
Terry Harrington was wrongfully convicted, owing to prosecutorial misconduct, and was freed largely through the efforts of his prison barber, Anne Danaher. Though he promised to share the wealth with her if he "struck the jackpot" when his conviction was overturned, neither he nor his attorneys have paid anything of their settlement money to her. Though their reasons for not doing so may be legally defensible, they are not morally defensible, as Norm Pattis wrote:
[Danaher] started spending her free time tracking down witnesses. She met Harrington's appellate lawyer. She even found undisclosed police reports that pointed to another suspect. She learned that prosecutors never disclosed this material to Harrington's trial lawyer. And she learned about a payment made to a key witness for the state. She took what she learned to a Waterloo lawyer named Mary Kennedy. Kennedy, too, believed in Harrington.

Danaher spent nine years of uncompensated time working on the Harrington case, eventually accumulating 27 boxes of material. Last week, Harrington's lawyers informed Danaher that she shouldn't expect a dime for the work she did on the case.


"Oh, but the Rules of Professional Conduct prohibit lawyers from entering partnerships with non-lawyers," the lawyers may chortle in high-minded glee. "We can't cut her in on our share without running afoul of the rules."

It's not that simple. The lawyers did not form a partnership with Danaher. However, Danaher and the lawyers were on the same side. Both were seeking justice, right? Both were on the side of the little guy, railroaded and left for dead by corrupt government officials, right? Justice was done, right? Well why not let the financial benefits that come with this particular incarnation of justice flow in Danaher's direction as well? Nothing prevents the lawyers from recognizing her contribution from their share of the winnings. I mean, isn't this the same firm loosely associated with a Trial Lawyer's College that routinely shakes down attendees for all the cash it can muster to make sure that "people's lawyers" can get adequate training to fight evil? People's investigators have to eat, too.

Terry Harrington's lawyers did a good thing for their client. They fought hard and well, and they won a huge settlement for men horribly wronged. But the hardwork the lawyers did would not have been possible without Anne Danaher. Refusing to honor her contribution is small and petty. It makes the lawyers look like money-grubbing hypocrites.
Mike Cernovich agreed:
Ms. Danaher is justifiably upset. Those of us who spend zero hours helping free innocent people from death row - Hey, we got bills to pay, right? - will no doubt remind Ms. Danaher that virtue is its own reward.

Like the rest of us, she wants to do the right thing. Like the rest of us, she has her own bills. An hour spent working on behalf of someone for free is an money taken from our own lives. Ms. Danaher is a woman of humble means. Unlike many of the lawyers reading this blog, she can little afford to work for free.

Why do those of us who have so much deny money to those who have so little? Are we no different from the banksters on Wall Street? How can anyone who keeps millions for himself and refuses thousands to the humble woman who made those millions possible ever blog about the evils of large corporations? How can Harrington's lawyers decry greed when they themselves are keeping money that exists only because Ms. Danaher gives a dam?
Does inequity like this make you want to advocate, teach, advise or practice the duty, necessity or propriety of controlling, conducting, seizing or overthrowing the government? If so, be glad if you're not in South Carolina, because there'd be paperwork to be done first. State law there requires that "subversive organizations" and the n'er do wells who support them register with the state, paying five dollars for processing of their form. Popehat's Patrick lamented that the oath he swore upon joining the bar precludes him from filling out that form, but he encourages others to do so:
[T]he First Amendment protects you from criminal prosecution should you merely fill out the form and send your five dollars.

In its ironic way, it may be the best five dollars you ever spent. If ever an American government needed to be overthrown, it was the government of South Carolina.
Kevin Underhill walked us through the statute, noting that South Carolina's definition of "subversive" is so broad that major political parties would be covered and that all this nonsense is pretty rich when one recalls that South Carolina was the first state to secede from the union and fired the shots which started the Civil War:
Let's just make this easier -- everybody in the United States must give the South Carolina Secretary of State all information which he may request from you at the times he may prescribe. Okay? Great. Then we will at last be safe. (Don't forget your $5 filing fee, which will help out the state budget by bringing in $1,500,000,000 this year.)

I guess somebody did see a problem down the road with this, because section 23-29-30 expressly provides that "[n]othing in this chapter shall be construed to authorize, require or establish censorship or to limit in any way or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States and no regulation shall be promulgated hereunder having that effect." Well, that's a relief -- although they left out the right to assemble. Oops!

Maybe somebody else has pointed this out already, but could it be more ironic that this utterly stupid legislation was enacted by South Carolina, which was the first state to secede from the Union and the one that actually opened hostilities? I hope the legislature doesn't insist that South Carolina schools teach children about the Civil War, because if they are at all sympathetic to the Confederacy in doing that, and of course they are, then I think that makes the government of South Carolina a "subversive organization." South Carolina government, please fill out this idiotic form of yours and return it to yourself immediately along with your $5 filing fee.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., AdClassix.com, The RiseSmart Blog, and Paris Odds n Ends Thrift Store.