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 is now playing out at the websites of Scott Greenfield and Mark Bennett, who are being cyber-stalked, as you can read at the two links at the bottom. The stalker happens to be a convicted rapist, and Twitter is 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 cautions of Greenfield and Bennett. 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."

• The Lessons of One Psycho on Twitter (Greenfield)

• The Worst Lawyer in Houston (Bennett)

Labels: Blogging, Twitter

I've been chosen by the ABA Journal for the second year in a row as part of its Blawg 100, the 100 best law blogs as decided by their editorial staff. That's nice. I'm deeply flattered to be in such company. They've placed me in the "Geo" category if you are inclined to vote in these types of things. And it would be nice if you were so inclined.

But two other things about the list are worth noting: Its metamorphosis over the course of its three-year run with respect to personal injury blogs, and the fact that inclusion (or exclusion) isn't something to brag about too much.

First, let's look at the changes from Year 1. In the 2007 inaugural issue there were no personal injury blogs -- none, nada, zippo -- a subject that I wrote about and caught the attention of others (ABA Blawg 100 Gets The Conversation Going). Many niches were excluded. At that time I noted several worthy personal injury blogs:

It's not a question of one blog being picked over another since this is, after all, just another vanity contest that small niche blogs don't have a shot of winning. No, the significant thing is that the vaunted American Bar Association simply doesn't think that this field of law is relevant. The decision to ignore a vast segment of the law speaks volumes about the organization.

In Year 2, 50 of the initial selections were replaced, and there were now two personal injury related blogs, this one and Drug and Device Law.  Nice to be included and nice to see that this substantial area of law was no longer being ignored by the ABA.

And now this year there are six, count 'em six, different law blogs that are related to the personal injury field. In addition to mine, the ABA has selected:

• Drug and Device Law

• The Poptort

• John Hochfelder's New York Injury Cases (and Hochfelder is still in his rookie year)

• Bill Marler's Marler Blog

• Evan Schaeffer's Beyond the Underground

Addendum: And if you include the Namby Pamby Attorney's comic rants, there are seven.

(If you go back and look at my 2007 post on the subject, by the way, you will see that D&D, Marler, and Schaeffer are all on my list of who should be included. The PopTort and Hochfelder blogs didn't yet exist.)

So six out of 100 is pretty fair representation. Well done, ABA Journal.

But...there were many notable blogs that aren't on the list. Just perusing my blog roll, for instance, Overlawyered and Lowering the Bar really jump out at me. What happened?

I have to assume that cutting the list to 100 is a pretty tough job -- they want both big and small, profs and practitioners, regional and national, quirky and serious -- and that part of the problem is trying to put blogs into categories. I'm in the "Geo" category, for instance, and that befits the name of this tiny corner of the web, despite the fact I go elsewhere often. I stretch that definition often to include attorney marketing, judiciary issues, ethics, and related subjects.

So here is what I think the ABA did to solve the problem. They narrowed the list of 2,000 - 3,000 law blogs down to about 150-200. Then they printed out the names of each one on a piece of paper, removed Above the Law and Volokh to make sure they made the cut, and chucked the rest at a staircase. Those that landed on the top stairs were stuffed into the ABA categories.

Now one last item, if I still have your attention. Voting. Its worth noting that when you go to vote in this beauty pageant, you can vote for all the PI blogs, even if we are in the same category. You get 10 votes, and you can spread them out any way you wish. So I say vote for all the PI blogs.

Last year I came in second in the regional category to the China Law Blog, which really isn't fair given the relative populations of New York and China. Also, Dan Harris over at China Law Blog was begging for votes like there was no tomorrow, and is doing the same thing today at his blog and repeatedly on Twitter.  I won't beg, the way he does. I'll just give you a picture of my chief supporter, Paris Hilton. Now really, is it any contest as to who you would vote for?

Labels: Blogging

The marketers and promoters love social media. They just don't talk about the hidden risk. They think every lawyer should be involved and that those not involved just don't get it.

All I ever seem to read is how great it is for connecting with others and drumming up business. But never a word about how it can kill business.

Yes, social media such as Twitter and Facebook can kill your business. And it's better to learn that lesson now than later. Lawyers can lose clients, or simply miss the opportunity to be retained.

I saw this today when I Googled myself. I did this after Scott Greenfield wrote a piece that created abundant commentary, centering on the fact that he types his posts up with exceptional speed, but never edits. Anyone that reads his Simple Justice can see this in many a post.

And I wondered, if a potential new client was given my name by another, and that person Googled me, what would they see?

Well, the first page of my results shows three separate social media sites: Twitter, Facebook and LinkedIn. They show up there despite the fact that I've not exactly been the biggest user of those sites over the last year. (My opinion that Twitter stinks remains unchanged, though I continue to drop links into it when I post something new here.)

So this is what the potential new client will see, even if you have an active presence on the web. Since I've written over 800 posts in this space since I started in November 2006, and received thousands of inbound links, I probably fit the definition of active presence. And yet, those three sites still manage to crowd out links from so many others.

So if social media sites will be on the first page of what your potential client sees, then those sites must be appealing to the client. And by appealing, I don't mean that you have to strut your legal stuff. Rather, you have to make sure you don't turn off the client.

And that's the danger; turning off the potential client by prattling away with all types of trite tidbits that only the most devoted of significant others could care about. Is this what you want your new clients to see? Because if that is what you are typing, that is what they will see.

And not only will they see it, but they will see when you wrote it. Ten posts written during business hours will make a client think two things:

1. Why is the lawyer writing about this stuff during work hours? I want a lawyer that is busy with a good book of business. (Crowded restaurants are usually crowded for a good reason; empty ones usually empty for a good reason.)
2. Will the lawyer be Twittering instead of working on my case?

The same risks, of course, may exist for blogs. And it is one that I often think about when writing. (For the record, I generally write at night or in early morning, but can edit the time stamp. I've composed many a post in my head while going for early morning runs on taking the train to/from the city.)

While many lawyers write with the hopes that future clients will read their stuff, I often fear it, particularly when going off topic. It is that fear of clients reading my words that makes me kill many a story before it gets published. It may be one too many that goes off-topic or it tackles a subject in a way that just turns people off. Personal attacks on certain people, for instance, can easily lead to backlash.

But at least I know that if I write something dumb, it will be quickly buried on the blog and (hopefully) forgotten in two months time. That won't happen as easily with the big social media companies though. Those links, which likely contain "fluffier" stuff than a law blog would handle, will be right there on page 1 of your results. And you may lose the biggest case of your career because the client went elsewhere. And you never even knew.

And one last thing to think about, since someone somewhere will holler, "But there are privacy options that allow me to shield the public from seeing my Facebook page!"

Sure there are, but what will you do when a current client asks to friend you Facebook? Insult them by saying no?

It's often been said that you should never write anything that you are afraid to see on the front page of the local paper. The story of Flea made that clear.

But let's take that one step further: Never write anything that you don't want your clients to see. Because you may not get to keep them as clients.

Labels: Blogging

Overlawyered today celebrates its 10 year anniversary, making it the longest legally-themed blog around. It has also provided me with one of the biggest surprises that I've experienced, and invaluable lessons about how to blog.

Its proprietor, Walter Olson, uses the site to document the high cost of litigation. He has his conservative political views, which are often diametrically opposed to mine. In fact, if the proposals of the Manhattan Institute (where he is a fellow) were followed, the rights of many (if not all) of my clients would likely be eviscerated. That means we knock heads every so often, as I do with his co-blogger Ted Frank.

And despite this, while still in my rookie year blogging, he added me to the blog roll of his site. I wrote at that time, back in August 2007:

When pigs fly, I hear you say.

Would the oldest legal blog in America -- dedicated to documenting the high cost of our legal system and, perhaps, savoring some of the outrageousness that exists (Pants Pearson, anyone?) for the anecdotal benefits -- actually add a dyed-in-the-wool, 100% personal injury attorney to their blogroll? An individual that takes tort "reformers" to task every so often? One who is a guest contributor at Overlawyered's arch nemesis, TortDeform? Well, yes. They would.

And he didn't just add me to his blog roll, but he links to me with some frequency sending me a steady source of readers. And those links don't just come in where I agree with him about a suit that was stupidly brought -- and in a nation of 300 million that will happen with some frequency -- but more often when I disagree with him on an issue. He is telling his own readers: And for the opposing view, see this post from a PI guy.

Lesson learned. Don't ignore opposing views. Read them, consider them, and respond to them if you wish. It is the ideas that matter. Same as in the courtroom.

Another lesson is that he has never once made a personal attack, despite all my criticisms. Which is also something that every legal battle should embrace. Respond to the message, not the messenger. Judges hate personal attacks.

And another lesson: Admit mistakes when they happen. You can't be constantly writing in the blogosphere, often quickly and with little editing, and not make mistakes. At his sister site, Point of Law, he showed the way mistakes are rectified.

And so, a tip of the hat today to Walter Olson. Not just for figuring out this blogging thing faster than any one else, but for doing it with class and style.

Labels: Blogging

Over the last couple of months I've had a couple folks scrape all the content from my RSS feed and use it on their own "blogs." I use quotes because they looked like they had no other purpose than taking the content produced by others and surrounding it by ads for their own commercial benefit.

I made clear to them that simply because content is syndicated in an RSS feed doesn't give them the right to scrape it for their own.

Nevertheless, to prevent this in the future, I'm going to experiment with truncating the RSS feed. If folks find the lede interesting, they can then come to the site and read the rest. It isn't really the way I want to blog -- reading this stuff should be easy -- but I also don't like having stuff stolen.

While I'm at it I may also tinker with those little social networking buttons that I see elsewhere. Where will it lead? Beats me. But over the last year this little corner of cyberspace and turned up not only in national press, but also international (India and Great Britain).

And I'm open to suggestions and feedback from others as to whether or not the changes work well.

Labels: Blogging

As per the NY Times late this afternoon, New York's press shield law that protects news reporters from being forced to testify regarding sources would be extended to include bloggers under a new bill.

According to the Times, the bill under consideration would expand the scope of the law to include "journalist bloggers," with a blog defined as

"a Web site or Web page that contains an online journal containing news, comments and offers hyperlinks provided by the writer."

I don't usually use this space to re-post stories without additional commentary -- I save that for my Linkworthy posts -- but I thought this was sufficiently important. And the lack of time that I have right now prevents me from writing more.

Labels: Blogging

Two weeks ago I wrote about the folks at Drug and Device Law getting a lot of press as a result of Wyeth v. Levine., since they had written with authority on the issue of federal pre-emption in drug and devices cases for so long.

This week it is trial lawyer and jury consultant Anne Reed at Deliberations due to many recent stories on jurors using Twitter, iPhones for research, Facebook, etc. A sampling from Reed yesterday:

The New York Times has a front-page article today that has gotten a lot of attention, in part for the wise comments of Douglas Keene, president of the American Society of Trial Consultants. Meanwhile I've gotten to talk to reporters and columnists from the Associated Press, ABCNews.com, the Philadelphia Inquirer, the Milwaukee Journal/Sentinel's law blog Proof and Hearsay, BBC Radio's The World Today and then their Newshour, and Southern California Public Radio's Patt Morrison Show (Doug Keene was on that one too, with Greenberg Traurig's Scott Bertzyk) -- all in the last two days, with two more interviews coming up.

That link, by the way, has a huge round-up of posts on the subject that she has been writing about for some time now.

Using a blog for solicitation is a losing proposition, as the blog is merely an ad, and therefore utterly uninteresting. But if you write about something you enjoy and care about, and write it well, the media may one day come calling. Whether that results in business is impossible to say, but it if raises your profile in the legal community, it certainly couldn't hurt.

Labels: Blogging, Marketing

The question frequently arises: Is blogging helpful for a lawyer's business for someone in BigLaw? And this question pops up because General Counsels at Fortune 500 companies won't exactly hire someone just because they have a blog.

But will being quoted in the paper as an expert put that lawyer's name in front of a General Counsel? Today -- in the wake of the Supreme Court in Wyeth v. Levine upholding the right of a claimant to bring a state court tort action for mislabeled drugs despite FDA policymakers trying to discourage it -- we take a peak at whether a blog will get the blogger in front of the media.

Mark Hermmann of Jones Day in Chicago and Jim Beck at Dechert in Philadelphia write the Drug and Device Law Blog, which has been pretty much all pre-emption all the time for the last two years. And the media did, indeed, turn to them for quotes. (Of course, both were already big shots in their field, with Beck having a drug and device law book on the subject, a copy of which sits on my shelf). But let's take a look:

From Adam Liptak at the New York Times (No Legal Shield in Drug Labeling, Justices Rule):

"This narrows the playing field," for implied pre-emption arguments, Mark Herrmann, a corporate defense lawyer in Chicago, said of the decision. "This does not eliminate the playing field."

From Bloomberg news (Wyeth, Drugmakers Lose as Top U.S. Court Allows Suits): "It's still leaves open some turf for industry, but it narrows the playing field," said Mark Herrmann, a Chicago product-liability lawyer who represents companies and co-writes a blog on drug and medical-device law.

From American Lawyer (Supreme Court Rules Against FDA Preemption; Let the Plaintiffs Rejoicing Begin!):

"It is a complete slap in the face to both the FDA and the Bush administration's position on preemption," said Dechert's James Beck (one of the bloggers at Drug and Device Law). The decision limits the preemption defense to cases where the FDA has made an "affirmative decision" on use of a particular drug, Beck told us. Dozens of cases that had been formally or informally frozen pending the Wyeth ruling, he said, will now move ahead at full steam.

And if you search their url in Google you will see the links to their blog and posts piling up fast in high profile joints like Above the Law, Volokh, Overlawyered, meaning they have succeeded in spreading to yet more people the fact that they are leaders in their field. You can bet there will be more stories, and more links.

In an article recently Hermmann wrote about the subject (Is blogging worth it?) noted:

[B]logging raises both your personal and your law firm's public profile. As a result of two years of blogging, I've appeared on television shows on CNBC, Bloomberg and C-SPAN. I've been interviewed by, and quoted in, The New York Times, The Wall Street Journal and countless regional papers. I've been invited to speak at academic symposia, continuing legal education programs and state Bar conventions. A major academic press has approached me about a book deal.
...
Blogging surely causes your name to cross the desks of potential clients, and that might cause clients to think of you when they're retaining counsel.

When blogs are used as a means of direct solicitation (call me, I know what I'm doing!) they fail badly. When blogs are used to demonstrate knowledge by discussing an interesting issue, they succeed.

As they teach you in trial lawyer school, "show, don't tell." And blogging isn't any different.

Updated: Beck/Herrmann are rounding up the coverage that they have received earned: Press Coverage of Levine

Previously at my site:

• Preemption v. Preemption v. Preemption (Wyeth v. Levine) 10/29/08
  

• Preemption Gone Wild (How Bush Pushed Immunity for Big Business) (10/15/08)
  

Labels: Blogging

I visited the LegalTech show in New York today, sponsored by IncisiveMedia. I was invited into their booth for an interview by Jill Windwer (Vice President, Law.com). The subject was yesterday's post on The Future of the Legal Blogosphere.

This is the video version:



Note: I am an advertising affiliate of IncisiveMedia, formerly ALM. I discussed this last July in A Personal Injury Blog Grows Up (Welcome ALM Readers)

Labels: Blogging

Having now trashed Twitter (Twitter and The Age of Information Overload) before using it and semi-trashed it again after using it (Twitter: A Review), and having concluded it is not the future, the question remains: What is the future of the legal blogosphere?

To figure out the future, you have to know what the present is, which is easier said than done in a fast-moving digital age. But the present information distribution seems to be dominated (for attorneys) by a few distinct forms (leaving aside static web sites):

• Listservs, which are set up generally based on either locality or practice area;
  
• Individual Blogs such as this one or group blogs such as Volokh or Concurring Opinions (both run by law professors); and
• Social networks such as Facebook, Linkedin, and increasingly Twitter.
  

This will change, and if you pull up a chair, I'll look into my crystal ball. For I see a future that blends and links together each of these three. No one has created the site yet, though someone surely will.

First, what is missing from the legal blogosphere is a group blog for practicing lawyers. While Volokh or Co-Op are possible templates for group blogs, I see something more akin to the splashier Huffington Post, except that it would be written by and for lawyers. The benefits of such a blog or webzine to the writers should be obvious: You can have 100+ contributors, who may not want to write something each week (or day) as is the custom with individual blogs. And the benefits to the reader should be equally obvious: An enormous amount of content under one roof from a wide variety of writers.

Now mix in the social element, whether this is for swapping tips and links or engaging in political discussion away from one's own practice area. It happens to some extent in comment areas, but this is limited. It also is happening in Twitter, but the format is anything but ideal. Twitter is a crude technology, as compared to what is already available, and will not have staying power for lawyers when a better site is created. A well-located and well-designed legal forum can be significantly superior to it.

Well designed discussion boards such as those operated by The Motley Fool financial site, for example, have been enormously popular for over a decade, and the ability to write/read in threads and ignore users/threads is incredibly simple. There are no extra programs to download and no tools to learn.

Just as The Fool centers on stocks, the law forum would center on law. (Though, as testament to the power of community, you can see a vast array of other forums such as politics, and about 20 different boards related to sports at The Fool site.)

And each user of the site can have a profile page that would list, to the extent that people wanted it, contact information and links that allows for social networking and professional marketing.

This site -- be it called The Motley Post, Huffington Fool, or Turkewitz Times Version 3.0 (version 1.0 was 20 years ago and this blog is 2.0) -- would also have a reader base with some of the best advertising demographics in the nation. Advertising (cars, booze, travel, etc) would be an easy sell relative to other sites, as would law firm sponsorships.

Who will create this site? The logical candidates are:

• The ABA, which has shown through the ABA Journal that they have a serious commitment to the digital arena;
• Incisive Media, owners of Law.com, the New York Law Journal, American Lawyer, and a host of other publications;
• David Lat, creator of Above the Law and now managing editor of Breaking Media;
  
• Kevin O'Keefe of Lexblog, a lawyer-entrepreneur who knows an opportunity for digital space when he sees one; or
• The next Kevin O'Keefe, a small blogger or entrepreneur that comes out of nowhere and decides to implement an idea.

Thus, a savvy entrepreneur will one day blend the desires for blogging and the desires for a legal-social element into one web location, in an easy-to-use site.

I don't know when it will happen, but it will. And remember, you heard it here first.

(And yes, The Turkewitz Times is available for licensing. I'm just sayin'.)

Updated: I was interviewed at LegalTech New York regarding this post, and you can see the short interview here.

Labels: Blogging

The other day I trashed Twitter a bit (Twitter and The Age of Information Overload) because I already have so many sources for information and didn't really see why I needed another one, and didn't see how it was much of an improvement over existing technology. I wrote from the standpoint of someone who had not yet joined.

Well, now I have joined. My Thursday trial was adjourned, so I opened a Twitter account (@Turkewitz), downloaded Tweetdeck, and started noodling to see if my opinion would change. After two days I now consider myself expert enough to write on the subject.

There are two fundamental issues with Twitter that exist for any social networking site: Technology and Community.

Technology
I am certainly not impressed with Twitter technology and stand by the point I made the other day about listservs or other electronic forums being superior. And when I write about technology I don't mean the geek end; I mean the user end.

I first joined the online world with Prodigy back in '92 and have used one forum or another for online discussion since then. Twitter may be different than other current platforms, but is it better? The answer is clearly no.

Any good forum should have these critical components to allow for posting links and engaging in discussion:

• Multiple discussion boards so that those that want to talk baseball aren't in the same forum as those that want to talk knitting;
• The option to follow a discussion either in threaded fashion or chronologically, or simply to collapse the thread into the heading; and
  
• The option to ignore certain users because they want to talk about Mac and Cheese instead of the forum subject.

Twitter doesn't really do this well. It's a type of scattershot approach to social networking, but the discussion is strewn so far and it would be tough to follow any kind of conversation that might actually break out. And if you actually wanted to make a decent point in reply to an article or blog post, you would still be limited to 140 characters. (Though that might be a blessing in disguise for many.)

One of the best discussion forums I've seen is the one created by The Motley Fool financial site. If you look at this board for Apple, for example, you can see a neat, clean user interface. You can ignore people and threads with the click of a button. These boards have existed since the mid-90s.

A good law forum should work the same way, with the ease of dropping in links and creating bios and arguing with one another, because that's what so many like to do. If you want to get rid of the Mac and Cheese Poster or the chucklehead only concerned with self-promotion, then poof -- they're gone.

The Motley Fool boards blow the doors off anything Twitter has to offer.

Community
Great technology is useless without users. And even crappy technology is good if you have good users.

Twitter has succeeded in attracting the legal community, in lightening speed. How fast? An article by law technology guru Robert Ambrogi on August 8, 2008 in Law Technology News reviews various social networking sites for lawyers. Twitter isn't even mentioned.

And then there is an article in the January 2009 Trial Magazine (sub. only) about social networking for lawyers. It discusses Facebook and Linkedin and a couple others. But still no Twitter. Assuming the article was submitted a couple of months back, it gives you an idea as to how fast Twitter has taken off in the legal world.

So Twitter appears to be succeeding in the community development end. And that means it can be a valuable tool if you value finding articles and cases that may get swapped here and there, though they may be of limited use if (like me) you have a narrow geographic focus and practice area. I'll get far more value out of a forum with 25 local personal injury attorneys than I will out of a forum of 2,500 attorneys in different fields spread out over the nation. But I'm not everyone and your mileage may vary.

So Twitter is succeeding, and can be a decent tool for some things. I will continue to noodle with it and use it to see how it goes. Not because the technology is good, but because that is where people are congregating. Yes, I know, that is simply a self-fulfilling prophecy.

But I don't see it as a keeper. Twitter is not the future of the legal blogosphere. My next piece will be on what I think the future holds.

Labels: Blogging, Twitter

Several people have suggested I join Twitter, the microblogging service. With a 140 character "tweet" or "twit " you can send off a tiny little message to those that follow you. It's all the rage now with blogging lawyers, and there's 565 on this growing list. Heck even Barack Obama tweets (though the prior list somehow missed the First Lawyer).

But I've resisted. My brain is being swamped with information and my days seem to be getting shorter as I try to stay current:

• I have 150-200 blogs in my RSS feed;
• I have a local listserv that is, shall we say, exceptionally active in all things related to my practice;
• I've joined Facebook, which I rarely visit, and when I do, I find out what people had for breakfast;
• I've joined Linkedin, which I visit even less often.

I read hard copy magazines and newspapers. I write this blog. I've got a wife, two kids, a dog and a cat. I'm training to run another marathon, and organizing a 1/2 marathon trail race. And, oh yes, I have a law practice to run with clients to attend to.

The internet and the burgeoning social networks that it has spawned have made it possible to acquire information in ways that our parents never envisioned. Information now pours over the transom in an unprecedented deluge, being pushed and pulled in myriad ways.

But at some point I need to stem this tide. I'm not looking to retreat to a cabin in the woods, eating grubs to survive and working on an anti-technology manifesto, but I also don't feel a compelling need to open every valve of the technology river. There are only 24 hours in the day, and yes, I like to also use some of them to eat and sleep.

It is true that there are times I would like to make a very short post, but a once-a-week round-up of linkworthy items on this blog seems to be efficient enough for that purpose. And I have to think that those that would "follow" me on Twitter already follow me their RSS feed or by subscription, so little would seem to be gained by way of a growing readership.

Twitter really seems like an updated version of a listserv, which has served me quite well over the years. I've previously covered that subject (The Million Dollar Listserv), writing that "The listserv may be the single greatest tool the solo or small practice lawyer has," and if you don't belong to one in your practice area, you really should find or create one. You can read that post to see why. Twitter doesn't seem to improve on it in any meaningful way, and when you supplement the listserv with RSS feeds the ground is pretty well covered.

There are some that think Twitter's great for breaking new stories, but that's really nonsense. For example, some "credit" Janis Krums with using Twitter to "scoop" mainstream media with a first photo of the US Airways splash landing in the Hudson. Krums was on the first ferry to reach the plane. The WSJ wrote, "Notch another win for citizen journalism," and the Daily News called his 15 seconds of fame "well-deserved."

Why, on godsgreenearth anyone would think this is a "well-deserved" "win" of any kind and relevant to any serious issue of news reporting is beyond me. Why would it matter that someone twittered about a loaded airplane going down in full view of thousands of people on the edge of the biggest city in the country -- other than to the guy who took the picture and spent his time twittering it to friends? Did Twittering save lives? Of course not. Rescue was already in progress.

While Krums was being lauded as a celebrity, I wanted to know why the hell he was spending time on his iPhone instead of asking the crew what he could do to help, getting life vests ready to toss overboard, looking for survivors in the frigid waters, and looking around to see where, if at all, there might be lifeboats that he might need to assist with. Obsessiveness to technology can also mean the difference between life and death.

And then there is LexTweet -- a project of Kevin O'Keeffe's Lexblog business that builds sites for lawyers -- where the twittering is all about law. Or at least that may have been his thought when starting it. According to O'Keefe, "The community has already grown to over 1,500 members. But when I checked it out I found these pearls of twittering show up on his service:

• Is about ready to make some creamy broccoli cheese soup...yummy! (Melby_AZ)
  
• Have a serious craving for macaroni & cheese... might have to go to Garden of Eden. (Chickpea)
• OK, finally made it to library, rocking out to "Lavalounge" via live365.com, and reading Crim Law. Woot for law school (Littlefrogling)
  
• Our four year old has just admitted that she is being bullied at school. ipod is switched off... Kids are so cruel. (Accidentclaim)
  

Who wants to sort through this crap looking for substance? Thanks, but I have enough to do. Even if I knew these people I wouldn't want to read this dreck.

Now I don't blame O'Keefe for putting that content up, or even encouraging it. He's the platform builder, not the content creator. But it doesn't help to claim 1,500 twittering lawyers if these are among the ranks.

I'm not saying I will never Twitter. It certainly has its place as yet another method of information sharing. It's just that I don't see the need, given that I already can't read all the information that comes in. And it doesn't seem to be any improvement over a simple listserv or bulletin board with threaded subjects. And that type of technology was in wide use in the mid-90s.

Will Twitter help me acquire yet more information that I can't get to, or assist me in sharing information that I might have? I don't see how.

For more on twittering lawyers:

• Twitter users going to LegalTech New York : Here's a list (Kevin O'Keefe @ Lexblog),

  Here's a list of Twitter users [53 and counting] I know who are attending. If you're not on the list, leave a comment, or drop me a tweet at @kevinokeefe so we can get you on the list.

• they're all atwitter (we're not) (David Giacalone @ f/k/a)

  Everywhere you look, well-known members of the blawgisphere (lawyers who have weblogs) are all atwitter, chirping excitedly about Twitter ...At risk of being called a twit (or a throwback), the f/k/a Gang is pre-emptively opting out.

• Blawg Review #186: The Twitter Wars (at the Res Ipsa Blog)

  Twitter, a cross between "social networking, blogging, and texting," took center stage this week as legal bloggers debated the usefulness of the new networking platform. For a run down and the new technology and reasons why some attorneys are not embracing it [read the rest of the post with the links]

• Twitter for Lawyers (David Harlow @ HealthBlawg)

  I've been twittering for a couple of months now, and the consensus seems to be that I'm just one of those bleeding-edge geeks with too much free time. I bet I would've gotten the same reactions from fellow lawyers if I had installed a telephone in my office back in the 1870s.

• First Impression of The Lextweet Reflection (Greenfield @ Simple Justice)

  Kevin O'Keefe is always on the hunt for the next big thing, and what to do about it. His latest creation is Lextweet, billed as means to "follow legal community members who use Twitter to discuss the law and much more." ... But the biggest issue has nothing to do with Lextweet at all. The vast majority of twits are, how do I say this nicely, worthless to the general lawyer audience. Nothing personal, but intimate details of your personal hygiene don't interest me. I don't know your family (I don't even know you) so it's really of little concern what they're having for breakfast. But this is what people twit about, and what shows up on Lextweet whether it matters or not.

  
  
• How I Use Twitter -- Let me count the ways (Grant Griffiths @ Blog for Profit)

  Since I spend some of my time visiting with real-world friends and business contacts and individuals online about twitter, I thought it might be time to provide a post on "how I use twitter."

• Sixteen Reasons to Tweet on Twitter (Robert Abrogi @ Law Marketing Portal)

  1. Expand your network. With blogging, writing, speaking and various bar committees, I consider myself pretty well networked. So I was surprised upon joining Twitter at how many new contacts I made, how quickly I made them, and their potential value to me as a professional.

• Attorneys Flocking to Twitter for Marketing (Larry Bodine @ Law Marketing Blog)

  From where I'm sitting, 2009 will be the year Twitter becomes the major business development trend. Why?

Labels: Blogging, Twitter

My Thanksgiving version of Blawg Review is bringing a temporary spike in readership, so I figured I would make this one short post to new visitors.

Why? Because the Blawg Review didn't discuss, at all, the subject of personal injury law. The words don't even appear in the post.

Now there are some who think blogs should be filled with appropriate buzz words to optimize search engines so that potential clients will find you. But that isn't the way I approach my tiny corner of cyberspace. I just want to write things that I find interesting about the area of law I know the most about. If writing isn't fun, it's work, and I have plenty of work at my workplace.

So for the new folks, here is a "best of" for this blog. that I created after doing my first Blawg Review, based on the NYC Marathon. It has posts which were either popular or that I simply liked, and I update it periodically. If you find the stuff interesting, feel free to add me to your RSS feed. If not, thanks for visiting and I hope you have another opportunity to return.

Labels: Blogging

I just read Franz Kafka's The Trial for the first time and learned something pretty startling: There were elements that resembled a blog.

I picked up the book on the way to vacation. (What does a Jewish lawyer from New York pick to read on a visit to Prague? A book by a Jewish lawyer from Prague.)

The startling part to me was not its well-known theme -- a man arrested and asked to defend himself against an unknown court with unknown charges -- but the fact that such a famous work was also very much unfinished. Much of Kafka's work, including this one, was published by a friend after Kafka's early death.

The start of The Trial is ominous enough:

"Someone must have slandered Josef K., for one morning, without having done anything wrong, he was arrested."

And from there K. descends into the hell of the all-powerful, all-knowing and unseen bureaucracy.

The recent translation I read -- and the reason this comes up in the context of blogging -- had explained in the forward that this version was published to be as true to the notes Kafka left as possible. That means errors in names (same name spelled differently), the timing of events, and descriptions of scenes remain as written. Unfinished chapter fragments are tacked on after the end. The actual order of chapters, in fact, is not entirely known. There were paragraphs that went on for a dozen pages, as if the notes had been written down for later editing.

Now blogs can be like that. Unfinished. Rough around the edges. Often with mistakes, which we hope are merely formalistic and not substantive. Because if the substance works, then (like Kafka) errors in the formalities of writing will (we hope) be overlooked.

And that, from this day forward, will be my excuse for written errors.

Labels: Blogging

The "I'm Sorry" letter from Dallas attorney Jeff Murphrey raced around the internet last week. It raced because he had very creatively skewered opposing counsel Dale Markland for not having the decency to adjourn a deposition while he suffered the ravages of Hurricane Ike (I'm Sorry You're A Jerk (Lawyering 101: Professionalism).

It seems that not only was property damaged, but so too was reputation. Markland, it may come as no surprise, was not pleased at being the butt of Murphrey's letter and its wide dissemination. If you were Googling "Dallas Attorney Dale Markland" you would find a number of unflattering stories on the now famous "I'm Sorry" letter. And that's bad if you happen to be Markland.

So how does a person you fight back and regain one's Google reputation? Dan Solove dealt with the subject of easily ruined reputations in the digital age in his terrific book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, which I reviewed last year. He would no doubt be interested in the path Markland is now taking to battle back.

If you're playing a bit of catch-up here, this was some of the substance of the original letter from Murphrey after Markland demanded expenses and attorneys fees for a busted deposition:

I am sorry that a hurricane hit Houston.

I am sorry that I had no power or water at my house as a result of the hurricane.

I am sorry that I had to extend my stay out of state because of the hurricane.

I am sorry that CenterPoint energy did not bend more quickly to your desires and restore power to my home so that I could return to it sooner.

I am sorry that upon returning to my home on Monday, September 22, 2008, I discovered a roughly 50 ft. X 6 ft. swath of human excrement, used condoms and all the other niceties that come with a raw sewage leak in one's backyard which drains into one of the main bayous in Houston.

I am sorry that I had to threaten City of Houston officials with lawsuits and local news exposure in order to get them to even agree to meet with me about cleaning up the problem.

I am sorry that these city officials chose a date that interfered with our deposition and gave me no other option.

I am sorry that the Houston Public Works Department had to use a fire hose to blow human excrement out of my yard on the day our deposition was scheduled.

I am sorry that the city required my presence at the debacle noted immediately above...

I am sorry that you are the only lawyer in this case that consistently goes out of his way to be unaccommodating and unprofessional with the other lawyers. I am sorry you are from Dallas.

This stuff then appeared not only on my humble little blog, but in far more prominent spaces including Above the Law, the WSJ Law Blog, the Houston Press and elsewhere.

So Markland has now acted, not just escalating a battle between he and Murphrey, but for a far more important reason: to reclaim his name in the event that future potential client's Google him.

And so the Markland and Hanley website is now up, with the most prominent feature being Markland's response to "the Hurricane letter." In fact, this fledgling site only has those two pages (at the moment). Markland notes at one point some of the abuse he has been subjected to:

A telephone call from The Texas Lawyer asking me to respond to all of the scorn I was being subjected to on internet blogs and in emails circulating throughout the country. Not being a blogger, I was unaware of the scorn which had been directed at me by a segment of at least the lawyer populous. Directed to one particular blog site, I found bloggers, apparently some being lawyers, calling me a liar and a scoundrel.

The details of his end of the story are now up there, relying significantly on the assertion that he was unaware there even was a problem with the deposition until he was changing planes while traveling there. He writes at his site:

The hurricane in the Houston area occurred on September 12/13;

Mr. Murphrey cancelled the deposition on September 23 when I was already on my way to Fort Wayne, Indiana for the deposition;

I will offer up one bit of wholly unsolicited advice to Markland: The best way to reclaim your Google reputation is not only by creating that web site (and obviously expanding it to describe your firm and the actual lawyering that you do), but to start blogging. Why? Because by doing so you will be creating more content that will, over time, hopefully bury the hurricane story so that it is but a trifle. When people Google you in the future, you'd rather have that on page five than page one.

You've been introduced to blogging the hard way, but having now been forced into that sphere, you may want to make the best of it. Though you'll have to do it well.

========================================
After posting this, others have weighed in:

• The Stars At Night; Are Big And Bright ... (Above the Law)

  We're sorry Mr. Markland, but Murphrey's original letter was funny. Beyond that, it seems like you and Murphrey need to sit down and work things out. Maybe you can even use a "telephone" and talk thing through. But if you insist on using forms of communication that can reach a wider and unintended audience, we'll continue to do our part.

• Lawyers duke it out over post-Hurricane Ike depo (Texas Lawyer)

  The upside to the situation, Markland says, is that he's now in a better position to understand -- and to advise clients on -- the dangers of the Internet age.

Labels: Blogging, Law Practice

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.

Labels: Blogging

I've been tagged in an Internet meme by David Harlow at HealthBlawg. The objective here is to name five non-law blogs that I find interesting, then tag five other lawyers to do the same.

It probably comes as no surprise that many of the non-law blogs I read tend toward the medical, since much of my practice over the last 20 years has dealt with medical malpractice issues.

So here goes:

Kevin, M.D. - Dr. Kevin Pho is king of the medical blogosphere aggegators. He is to medicine what Howard Bashman's How Appealing is to law;

Pharmalot - All things pharmaceutical, by Ed Silverman;

Capitol Confidential - Political blog of the Albany Times Union, keeping you up to date on event's in this state's capitol, which is no small detail where law and medicine intersect;

Respectful Insolence: The miscellaneous ramblings of a surgeon/scientist on medicine,
quackery, science, pseudoscience, history, and pseudohistory (and anything else that interests him);

Musings of a Highly Trained Monkey - You won't find this emergency room nurse's blog on the list of too many lawyers, but when she gets on a roll, she can quickly earn the laugh, or the teary eye, depending on the day;

So who is being tagged to come up with five of their own?

• Quizlaw: Who will probably hate me for this tag;

• TortDeform: Who will probably find a way to have a good time;

• Drug and Device Law - Just to see if I can throw them off-topic (all preemption, all the time) for a day;

• My Shingle: Carolyn Elefant always has something new and interesting;

• Simple Justice: Scott Greenfield may well be the most prolific writer in the blawgosphere, churning out long posts in the time it takes me to brush my teeth. He claimed he couldn't do it the other day when tagged by Anne Reed at Deliberations. But I think he's full of it. So he's tagged again.
  

Labels: Blogging

This little blog on personal injury law that I started in November 2006 undergoes a change today. I've become an advertising affiliate of American Lawyer Media's (ALM) Law.com Blog Network.

Yes, I see a raised hand out there in the back...

Q: What the hell?
A: Agreed.

Q: No, I mean really, what the hell? Why are you doing this?
A: Well, first because they asked. I'm a sucker for flattery you know.

Q: So if someone asked you to jump off the Brookl--
A: Jumping off bridges has nothing to do with law. ALM, on the other hand, publishes the New York Law Journal (my hometown paper of record), American Lawyer, National Law Journal and a slew of other legal products.

Q: But aren't most ALM products geared toward BigLaw stuff?
A: A healthy percentage. In fact, up until now there weren't any personal injury blogs in their affiliate network of 30 blogs.

Q: So you said yes because you could claim to be the first PI blog in the country to be in their network?
A: I told you I was a sucker for flattery. I've got an ego like everyone else. Weren't you listening?

Q: Listening won't help. This isn't a podcast.
A: Go get your own blog if you want to be snarky.

Q: I'm thinking of starting the Noo Yawk Personal Injury Law Blog to compete with you.
A: OK, you can stay. Just play nice.

Q: I see that ad in the side bar. And also a box with the Law.com news feed. So they get to advertise their stuff on your blog that you slaved over?
A: Well, the ad is new. But I was running their news feed here from the start, just as I do on my web site. I ran it because it's good. Same content now, just in a fancy looking box.

Q: Do they now own you?
A: No. I write what I want. They don't own any part of the blog. This is an advertising affiliation agreement. I create content in the personal injury field that they hopefully like and promote in some way. They expand their reach a tad by (hopefully) reaching my existing readership, and I expand mine by (hopefully) reaching theirs. Maybe they'll stumble on the greatest hits post and think this is worthy enough to add to their RSS feed.

Q: Why your blog?
A: Good question. One theory is that I threw money, booze and a Las Vegas junket their way. Another theory is that my little corner of the web was able to stand out a bit because many other personal injury blogs have a primary focus on self-promotion, and are quite a bit thin in the actual blogging department. If you have a third theory, I'm game to hear it.

Q:How much do you get out of this advertising deal?
A: Not sure. Maybe enough to buy an occasional six pack of Magic Hat. Mostly, I hope to get more readers. If I'm going to write, having readers is kinda nice. We're back to that ego thing.

Q: Last year, in your Better Blogging:12 Tips piece, you said that a blogger shouldn't "uglify" a blog with ads. Are you a hypocrite?
A: I see you're a long time reader.

Q: You didn't answer the question.
A: I see you're a lawyer.

Q: Are you going to answer it?
A: Yes. The vast majority of ads I've seen do, in fact, uglify a blog. And that is because most are those wretched little Google ads that sit in the middle of the blog where the actual content is supposed to be. I don't have a real problem with ads for law books, legal support services, etc., in an appropriate header or sidebar. But those won't bring in readers and, with few exceptions, the money isn't enough to push aside content or links. With ALM, however, I am hopeful that new readers will be brought in, and the ads themselves are directly on point. I figure that if it's good enough for Howard Bashman or Blawg Review, it's good enough for me. So I'm giving it a try.

Q: That's it? More readers?
A: And a bit more. On my first year anniversary I wrote that I wanted to do more original pieces, as opposed to commentary on existing stories. So in addition to more readers, being known as part of the ALM Blog Network might give me a smidgen more legitimacy as a media outlet if I'm looking for original content. It can't hurt.

Q: What next?
A: Regarding what?

Q: The blog.
A: Beats me. Hopefully a good personal injury story will drop into my lap and I'll get to write about it.

Q: You have a story in mind?
A: No, but if you do, would you please email it to: blog [at] TurkewitzLaw.com

Q: I like the way you did that.
A: Did what?

Q: Ended this rambling fake interview with a request for tips.
A: Hey, I'm in the big leagues now. I need stories. Guest blogs are welcome too.

Labels: Blogging

Personal injury blogs have once again been ignored. This time it comes from the new web directory, Alltop. Constructed by web impresario Guy Kawaskaki, it's law page is chock full of great law blogs, some mainstream and some in small niches. My quick count shows 105 of them, and it has the potential to be a great resource for people to see who is writing about what in a single glance.

But not a single blog deals with personal injury law as its main subject. Now you would think that with all the yelling and screaming about tort "reform," jury verdicts, federal preemption, punitive damages and related subjects, that one or two blogs that devote themselves to the subject would be on the list. But they aren't.

Have we seen this before? Yup. (See: Vote For Me In Blawg 100!! (Oh Wait, You Can't))

So, in the event that the Alltop law page gets updated, here's a tip to Guy for a few blogs on the subject to consider:

• Bill Childs (TortsProf)
• John Day (Day on Torts)
• Beck/Herrmann on defending BigDrug and BigDevice (Drug and Device Law)
• Bill Marler on food poisoning (Marler Blog)
• Byron Stier and Howard Erichson (Mass Tort Litigation Blog)
• Perlmutter & Schuelke, publishing weekly personal injury round-ups chock full of links to good personal injury blogs
• TortDeform on civil justice defense
  

For goodness sakes, pick one or two from the list, or use some of the many other fine ones that I haven't mentioned. But ignoring an entire field of the law seems to be a mistake if the intent is to aggregate law blogs.

See also:

• Blawgs Get Kawasakied (Blawg Review)
• Blawg Stuff, How To Keep Up (Simple Justice)
• Finding Good Blogs (Deliberations)
• Law Alltop Launches (The Inspired Solo)
  

Labels: Blogging

Who'd a thunk it? It was just five months ago that I let loose against the ABA for leaving all personal injury blogs out of their ABAJournal Blawg 100 (see: Vote For Me In Blawg 100!! (Oh Wait, You Can't)). And today I learn that my blog has popped up as their Blawg of the Week.

When the ABAJournal re-invented its web site last July, I welcomed their redesign with "terrific news feeds" and "a great new compendium of blawgs." It was clear they had done their homework. (See: Welcome New and Improved ABA Journal)

This being the ABA though, I was a bit concerned that its focus would be waaay too much on BigLaw, and not enough on the small and solo firms that make up the vast majority of America's law firms and that do much of the grunt work. I even wrote last summer:

The new ABAJournal also has a featured blawg each week. Let's hope they don't just focus on the big name A-listers from the ivory towers and appellate world, and present the occasional up-and-comers from the "Practical Blawgosphere" that are out there in the courthouses on a day-to-day basis.

So while I was disappointed that the entire personal injury bar, both plaintiffs and defendants, was left in the dust of its vaunted 100, it's obviously refreshing to see that, perhaps, things can change.

And yes, I did make sure to copy the page, under the theory that this was just a screw-up or practical joke and it disappears tomorrow.

A final note for new visitors: If you'd like to see some of the greatest hits of the blog, click that link. And feel free to add it to your RSS feed. No extra charge.

Labels: Blogging

It happened, ironically, with an April Fool's Day post. I passed the one million mark in page views.

I'm not quite sure what to make of it, since I've never really been able to figure out from the stats what represents human eyes and what represents spider eyes. And I know that many stumble in here simply because they are doing image searches or have used the images in various forums and blogs. Another stat, "visitors" passed the 500,000 mark and "unique visitors" is approaching 300,000.

If I had to decide what the most important metrics were, however, I would say:

• The number of comments, because that means folks are reading the content, and they often add new dimensions to the original post. I've never calculated them, though I can see there has been a marked increase in the last two months. Seeing 5-10 comments on a posting is no longer unusual, and some have generated over 20.
  
• The number of favorable comments, which of course, isn't quite the same as overall comments. I'm shocked, shocked I tell you , that some folks seem to have a knee-jerk reaction to personal injury attorneys, no matter what is written.
  
• The incoming links, because that also means people are reading and finding it useful to point others here. Technorati counts those for me, and I see 1,600+ incoming links. Of course that also includes spam blogs and double links coming in from some places.

But for whoever it is out there that has stopped by my tiny corner of cyberspace these past 17 months, I thank you. I've very much enjoyed doing this, and hope to continue as time permits.

Labels: Blogging

A small upgrade to the blog this week; Posts can now be emailed to people on a daily or weekly basis.

The Reason: While I had assumed that most folks would get blog postings via RSS feed, I noticed in the past month many coming to the site because some of my posts were passed around by email. Specifically, there were four posts that dealt with expert witnesses that bought a lot of new traffic: I posted a piece of evidence from one trial, about RICO suits against Allstate and State Farm, and a response from one of the RICO defendants.

Since many of the new visitors for this, or other stories, may be unfamiliar with RSS, I've added an email option.

Privacy: While it may be really tempting to sell all those email addresses I get -- I bet I can get almost a penny apiece for the 50-100 that I may gather -- I think I can resist that veritable gold mine. So even if I can figure out how to access those email addresses, I won't do anything with them.

Removal: If you sign up and decide after a week or a month that I am really annoying or posting nonsense, then you can say adios to me very easily. Each email gives you the option to remove yourself from the service.

Labels: Blogging

David Lat's Above the Law has a guest post from Ted Frank. Put up at 10:20 this morning, it has already generated a staggering 345 comments.

The subject? An assertion by Frank that Barack Obama, if elected, would get rid of the Social Security cap that is currently at $102,000. And that would cost BigLaw lawyers lots of dough.

Frank doesn't say where the money should come from, of course, for Social Security. That is apparently something for the next generation to worry about. Fiscal responsibility isn't really important when trying to woo voters from BigLaw.

But back to the main point. With this kind of a hit on its hands, will Above the Law move away from its many (many, many, many) posts on salaries at this place and that and focus more on substance?

We'll see.

Update (2/27/08 @ 5:30 pm): The post has now generated a record number of posts, well over 500 and still going. A new post was added by Ted Frank on the subject: NY to... 147K? More About Barack Obama's Tax Plan (Or: Time to make the donuts?)

Labels: Blogging

The anonymous Editor of Blawg Review appeared today at ALM's LegalTech New York trade show, where vendors are currently showing off the latest and greatest of legal gizmos, gadgets and doodads for parts of the legal community.

I was lucky enough to catch up with Ed at a bloggers breakfast before the show, thanks to a generous invitation from Monica Bay and friends at ALM. When I last saw Ed in November, he was staggering through the finishers area of the New York City Marathon, having run the race dressed as Gumby to conceal his identity. Readers may recall my description of him at the end of his 26.2 mile running tour of New York:

His face was smeared with Gumby green paint that ran and mixed both with sticky lime green Gatorade and with his own accumulated body salts, a nightmarish look that was lit up by the sun's reflection off his heat shield. But his eyes were electric and ecstatic and shone through the gloppy mess, giving the volunteering medical staff all the information they really needed about his health.

And so today, camera in hand, I snuck up on him in an attempt to capture a picture of what those eyes look like. Alas, the energetic editor would not hold still, and was in the process of showing off his credentials when the camera shutter finally clicked a full second after the button was pushed. Which goes to show you why shutter-lag is such a big issue with small digital cameras.

When he disappeared, rumors flew of a sunset train ride up along the Hudson as he sought to explore others parts of New York.

As for the show, since my time was severely limited, I can't really write much. But others can, and are. For running updates on the show, visit Law.com's Legal Blog Watch.

Other sightings:

• Bob Ambrogi;
• John Bringardner;
• David Giacalone;
  

Prior sightings:

• Kimberly A. Kralowec;
• Ed sights himself and provides photo;
  

Labels: Blogging

The anonymous Editor of Blawg Review has opened nominations for Best Blawg Review of the Year. The nominating is open, according to his rules, only to those that have hosted one of the past 140 Blawg Reviews or those that have already signed up for a future one. (Edit: Nominations are now open until Jan. 14th, due to the holiday.)

The editor is looking for a peer-reviewed award (or as close as the legal blogosphere can approximate), as opposed to a popularity contest.

Since he points out, quite rightly, that such "best of" awards are so highly subjective, I'm going to participate and nominate by listing those reviews that inspired me when I wrote my marathon themed Blawg Review #134 this year. The editor's recommendations of some of the presentations that might be considered for nomination, which include mine, are up at Virtually Blind.

In listing these reviews, I tip my hat to each as I borrowed ideas and concepts from each writer and stood on their shoulders to create my own:

#89, The Mummers Veil by the anonymous Editor himself, inspired me to indulge in fantasy visits with different bloggers. A rigid regard for the truth, I understood, was not necessary to presenting the best posts of the week. The point was to simply point to good law blog posts, making it available in a fun, creative way. Doing so in the context of a story often makes it more interesting (if you can pull it off without being "annoying, strained and distracting" as David Giacalone once wrote).

#101, from Diana Skaggs at The Divorce Law Journal, based on the Kentucky Derby. Since I had decided one month earlier to host a November review based on the NYC Marathon, a review based on the Kentucky Derby certainly caught my interest. She galloped through the legal blogosphere in winning fashion in a creative review that clearly was long in the making. I loved watching her mid-stride integration of law and racing.

#106 from Brett Trout at IT Blawg was based on a motorcycle race track. With another racing review, I took mental notes on how different parts of a race course, or different concepts, might be used to help introduce different legal topics in a very non-traditional manner.

#127, from Anne Reed's Deliberations, was based on jury selection. As a trial lawyer that obviously appeals to me, and I watched as she took 17 different selection tips and matched them to posts. In her review however, she didn't just link but went into the personalities of the posters to match them up with different concepts.

#137, by Colin Samuels at Infamy or Praise, was based on the third part of Dante's Divine Comedy, Paradise. While #137 came after my own, the Inferno themed #35 and the Purgatory themed #86 came before. In these, Dante travels with his guides, the poet Virgil and later Beatrice. This inspired me to add a guide of my own -- Marty, an alter ego or one-man Greek chorus -- who ran the race with me and would drop in from time to time to comment. While I couldn't pull off the wonderful literacy of Colin's pieces, his posts were there to remind me that the bounds of a review are limited only by the creativity of the mind.

Two final notes on the Blawg Reviews:

First, while the editor has an interesting idea with the nominating process, the reality is that many folks are out of town for the long holiday weekend. I'm guessing the nominating will therefore be very light. Having a yearly award in April would have a much better response rate. Yeah, yeah, I know. (Edit: Nominations are now open until Jan. 14th, due to the holiday.)

Second, it seems that the vast majority of reviews are written by practicing attorneys. Professors are notably absent. (In fact, professors rarely even acknowledge their existence, an exception being Prof. Dan Solove and his band of merry Concurring Opinionators for #75.) I haven't figured out why yet, since the primary purpose is to simply round up interesting blog postings, and their own postings are often included. Is there a reason professors are less likely to let their hair down and go outside their usual comfort zones?

Labels: Blawg Review, Blogging

Two law blog items:

First, if you didn't get enough Christmas yesterday, you can go back for more with the Christmas Eve themed Blawg Review #140 presented by Jonathan Frieden at E-Commerce Law. Frieden mixes commerce and Christmas with law blogs in his 12 Days of Christmas (plus stocking-stuffers).

Next up, Dennis Kennedy gives out his 2007 "Blawggies" for the best law oriented law blogs, and gives one to "niche blogs" as the most important trend. What is a niche blog? According to Kennedy, they "have titles like [State Name] [Practice Area] Law Blog."

While it's an interesting concept, it seems that the vast majority of law blogs actually fall into the category of "niche" once you get past the name, including his own on law technology and the one for best blawg about blawging (to Kevin O'Keefe, of course), among others he has chosen. As a percentage of the legal blogosphere there are really very few law blogs that focus outside of a niche.

While it's true that some blogs have descriptive names, such as this one, this is often done to give new readers a quick overview of where they landed. But it isn't the name that creates the niche but the content. If I used my name for a title instead of my practice area, would I no longer be a niche?

Labels: Blogging

Orin Kerr at the Volokh Conspiracy thinks that legal blogosphere has hit its saturation point. He couldn't be more wrong.

Kerr writes, without citation, that "For the most part this was a year of little growth or even a slight decline among law blogs."

I thought that was crazy when I read it, but then I saw Dan Solove at Concurring Opinions agree with him. He also did so without citation to any empirical data, other than his group's own traffic and that traffic has almost doubled in the past year! But, he goes on to say, that the big will just get bigger, and the little niche guys (like me or Scott Greenfield who also clearly disagrees), won't really go anywhere. He writes, "There are so many blogs that a person can read, and many folks have found their favorites now and are content," as if the number of blog readers is some static number instead of a dynamic one. His opinion on the future doesn't even mention the practicing lawyers who are opening up their own internet outposts.

Now I know that real data is hard to come by, so I'm not too critical, but I think these professors need to look outside their ivory towers.

Here is why they are not just wrong, but very, very wrong, and here is what you will see in the future:

First the present, from my own niche: According to Justia there are 33 New York blogs. The ABA Journal's Blawg Directory lists 41 New York blogs. According to the ABA, however, there are 147,096 lawyers in New York. I, for one, see a bit of room for growth with that disparity.

But wait, there's much more. The New York State Trial Lawyers Association has about 4,500 members that handle predominantly personal injury matters. There must easily be 10,000 lawyers in New York who handle them (or think they can handle them) as many are not members. Yet I can count on one hand the number of my brethren covering the subject on blogs.

Rather than being saturated, I think the legal blogosphere is in its infancy.

Now here is the future: There are precious few (if any) group blogs for practicing lawyers. The group blogs belong to the law school set. This will change. Someone, perhaps myself, will start gathering in more practicing lawyers for a group blog, perhaps modeled on the Huffington Post (TurkewitzTimes, anyone?) These lawyer/bloggers will be collected through the growing use of listserves, where small practitioners share tips. It is the perfect format for those who want to opine occasionally without the need to keep their blog up constantly. There will be several of these, and they will rival anything that currently exists.

Saturated? Stagnant? Profs. Kerr and Solove (and David Hoffman before that), you guys ain't seen nothin' yet.

Labels: Blogging

I've avoided doing a post like this for many months, but figured this is the time as one lawyer seems to have stepped over a line from using his blog for commentary or even advertising and gone to outright solicitation of a particular individual.

Kevin O'Keefe first reported on St. Louis attorney Ryan Bradley discussing a local accident and using the name of the injured person in the post heading, in a rather blatant hope that the injured person, family member or friend would Google the accident to see if anything was written about it, find the post, and call him.

Now he has done it a second time in a week, with this post here **

There are, it seems, four types of blogs, though I am using the word "blog" very loosely here since I don't think it truly applies in either #3 or #4:

1. The pseudonymous blogger. Without a real name and contact information, the blogger writes for pure enjoyment and without any business desire.

2. Blogs that comment on the law and recent events the same way as the pseudonymous blogger, but with a name and contact information. Such a blog might have a beneficial marketing side in making the blogger more prominent in the community and be used as a form of legal networking, though I think most that stick with it do it for the pure enjoyment of writing. This is similar in concept to publishing an article in a legal trade, though it is of course much easier to do and isn't peer reviewed. This represents most of the legal blogosphere to date.

3. Blogs that are advertising. These blogs discuss some general matter of the lawyer's practice, or more likely a local accident, and then scream, "call me!" The personal injury sites have many of these, and the "call me!" works to destroy any actual content that might have been posted.

4. Outright solicitation: I don't know what the Missouri ethics rules are on solicitation, but Ryan Bradley's blog postings clearly fit into the solicitation category. He puts the name of the injured person in the heading and the body, and looked up the accident report and insurance information to post that online also. Thus, he goes beyond the mere advertising, and into outright solicitation of an individual. Even if he is ethically secure on First Amendment grounds, what he has done certainly appears scummy and is a close cousin to sending a solicitation in the mail to the house. Or picking up the phone and calling. Or sending a person to the house. Or the hospital. You know where I'm gong with this. Solicitation is but one step removed from actual ambulance chasing.

I don't have the type of site that awards a "worst lawyer of the day," that is more of an Above the Law type of thing, but if I did, Bradley would surely get it.

The irony in all this is that when folks now Google Ryan Bradley of Missouri in the event they do stumble over his "blog" they will also find out what other lawyers think of his solicitations.

Addendum 12/17/07: Attorney Solicitation 2.0 --- Is It Ethical?

------------------------------------------------------------
** This link is via TinyUrl, which will redirect to the blog posting, but due to the masking created by redirection, will not add any Google pagerank to the blog. More on TinyUrl at Wikipedia.

Labels: Attorney Ethics, Blogging

Blawg Review #137 is up, and by up I mean it has ascended from Purgatory to Paradise. Colin Samuels @ Infamy and Praise has based Blawg Review -- a review of the legal blogosphere hosted at a different site each week -- on the third part of Dante's Divine Comedy. This Review follows in the award-winning footsteps he took with Dante in #35 (Inferno) and #86 (Purgatory). This is not one to be missed.

Samuels proves once again that literacy and the law may be happily married.

Labels: Blogging

I'd like to tell you to vote for me in the latest law blog popularity contest. After all, it's being run by the ABA Journal so it has to be prestigious, right?

But I can't tell you that. Because I wasn't nominated. Nor, for that matter, was any other law blog devoted to personal injury law.

Maybe personal injury blogs all stink? Maybe we don't discuss enough law, or have enough visitors? Perhaps all the blogs are poorly written? I mean every last one. Perhaps the bloggers really aren't worthy of mention? How else can an entire field of law be ignored?

So let's take a short look:

• John Day (Day on Torts, who recently published a handbook on tort law)
  
• Evan Schaeffer (Legal Underground and Illinois Trial Practice, and a grand daddy of legal blogging who authored Blawg Review #1 )
• Prof. Bill Childs (TortsProf, dealing with a great deal of PI, as well as more)
• Profs. Byron Stier and Howard Erichson (Mass Tort Litigation Blog)
• Beck/Herrmann (Drug and Device Law including pharmaceutical and medical device product liability, and both of whom are also book authors)
• Bill Marler (Marler Blog, one of many on food poisoning that has, you know, been in the news a bit)

You would think that, with so much noise being made about the need for tort "reform" because personal injury suits are so problematic, there would be at least a few blogs devoted to that subject as part of the top 100.

But if you thought that, you would be wrong. It's not a question of one blog being picked over another since this is, after all, just another vanity contest that small niche blogs don't have a shot of winning. No, the significant thing is that the vaunted American Bar Association simply doesn't think that this field of law is relevant. The decision to ignore a vast segment of the law speaks volumes about the organization.

[Addendum: The "ABA Mission" is at odds with their exclusionary choices:

The Mission of the American Bar Association is to be the national representative of the legal profession, serving the public and the profession by promoting justice, professional excellence and respect for the law.]

OK, short rant over. Cue Rodney...

Labels: Blogging

Having now read and linked to hundreds of blogs as part of my postings and round-ups during my first year, and having exceeded my expectations for a niche blog (The End of My Rookie Year: Thoughts, Metrics and Changes), I wanted to list a dozen tips on better blogging to kick off my second year. Perhaps one or two of the points will help someone somewhere, particularly those in my field, but these can be adopted elsewhere:

1. Blog optimization is different than search engine optimization: SEO experts tell you to use the same buzz words as often as possible so that it increases presence with Google. Except that doing so means your writing will probably suck. Does a reader really want to see the phrase "personal injury attorney" in every other sentence? And if the writing sucks, no one will want to read it, link to you, or come back. Incoming links, of course, are important both to bringing in new readers and improving Google PageRank. Otherwise you have to hope that new readers will blindly stumble upon your poorly ranked blog. So forget SEO and work on being a better writer and providing real content.

2. Don't engage in blatant self-promotion: Blog posts that look like advertisements ("If you or a close friend was injured, call me at ...blah, blah, blah") are posts that no one wants to read, and fewer want to link to. Perhaps a potential client will find you, but without the incoming links that come from better writing, it isn't very likely.

3. Don't use crappy back links to yourself in the post: If you continually link back to your own blog or website in the text of a post every time you use a favorite buzz phrase, you have added nothing. In fact, you've made it worse. Perhaps you think all those internal links make Google happy, but don't count on readers who chased bum links coming back again. While I'm not privy to Google's algorithms, you can bet your last pixel that external links are vastly more important than internal links. Google didn't get to be king of the hill by being stupid. I use one identifying link at the bottom of the post, and have an "about" section in the sidebar. That's more than enough if someone wants to find me, and doesn't destroy the text.

4. Breaking the news beats the hell out of commentary on the news: The posts that most readers found to be of interest were those that had originally sourced material. Why? Because other bloggers (and news media) saw them and linked to them, thereby bringing in more readers. Commentary is nice, and allows you to give your views, but it's still just commentary.

5. Link to others often: While this is part of every "how to" on blogging, many people still don't get it. Links are how others find out about you, and they bring in other bloggers who might, if you write well, link back to you bringing in more readers.

6. Your competition is your friend: While you may compete in the same niche for clients with other firms, they are also your readers and sources for stories. A successful blog doesn't ignore that.

7. Quirky is good: If a blog isn't enjoyable to read, then people won't read it. Simple. A little personality is fine. Don't make reading your blog look like work.

8. Stay focused: If you are off-topic more than 20% of the time, people won't really know what you are about, and therefore may not come back. And 20% is probably too high.

9. Add value: A blog that is merely parasitic of news stories or other blogs isn't worth much, unless you intend to be a news aggregator like How Appealing or Kevin M.D. If you're writing about a news story or decision reported by others, add your own thoughts on its significance.

10. Don't try to monetize the blog with ads: Very few blogs have the traffic that will attract meaningful advertising dollars. So if the money is minimal, don't uglify the blog with ads.

11. A blog is indirect promotion: When people write articles for publication, they don't scream "hire me!" Writers for traditional journals simply hope that their reputation will be enhanced by demonstrating knowledge in a field and that this may indirectly help them professionally. It's a form of networking. Treat your blog the same way.

12. Enjoy yourself: If you don't enjoy it, don't do it. If it is done as a hope for obtaining business it will be quite clear in your writing, and more importantly, it won't be fun. Let's face it, no one will ever hire me because of my marathon Blawg Review, but I had a blast doing it. And that's the important part.

This past week has been devoted to blogging due to Blawg Review and my one year anniversary. The navel gazing will now stop and I'll return to the theme of the blog. Unless the mood or a good story messes with my plans.

(Eric Turkewitz is a personal injury attorney in New York)

Labels: Blogging

Tomorrow is this blog's first anniversary. So I wanted to share some visitor metrics, upcoming changes, and general thoughts:

1. Metrics:
This tiny corner of cyberspace attracted significantly more visitors than I had imagined a year ago. Weekday readership the last six months has been about 700 unique visitors per day. Roughly 20,000 per month. Here is the data for the year, starting from scratch, as of yesterday:

• Unique visitors: 158,860
• Most unique visitors in one day: 2,485
• Unique Visitors this month: Nov 1 - 15: 11,862 (790/day)
• Visitors: 291,612
• Page views: 524,139
• Number of Posts: 367 (too many)
  
• Number of blogs that linked to me: Over 200 (waaaaay more than I imagined)
• Largest blog sources of referrals: Above the Law, Overlawyered, Kevin, M.D
• Number of legal threats against me: 2 (one published, one not)
  

2. Changes:
OK, the blog was a success. So let's change it...

• The Personal Injury Round-Up that I have been doing is now kaput. It was fun while it lasted, but very time consuming to do on a regular basis.
  
• I hope to spend more time on individual stories and, hopefully, occasionally write stories that are not yet in the press.
  
• I hope to bring in guest bloggers. Interested parties can contact me.

Will the blog improve or will I get hit with the sophomore jinx? Beats me.

3. Blogging Tips:
Since the blog is a success (at least to me), my next entry will be my tips on blogging, for whatever it may be worth to others (perhaps not much).

4. Thoughts on Blogging:
This has been a real hoot, but it has also taken a great deal of time. The one oddity that stood out was that I was placed on the blogroll of Overlaywered while at the same time being a guest contributor to its arch nemesis, Tort Deform. I'm not 100% certain what it means, but I think that has to be good, especially for a beginner.

I've listed some of the most popular posts are here, but my personal favorite was the marathon Blawg Review #134 that I put up earlier this week, essentially the culmination of my rookie year. It was long, not just because marathons are long but, because I had so much fun conceptualizing, researching and writing it. I started making notes in a separate file six months ago on ideas and situations, much the way I make notes on trial themes and tactics from the day a case comes in.

The streets and crowds of New York provided unlimited opportunities to raise different subjects and allowed me to weave a fabric using both fact and fiction that included bloggers, the race and the city. The post got goofier and goofier as the race wore on because that is one thing that happens with exhaustion. A tip of the hat to the people that made it to the finish line.

And a big thank you to all who have visited and commented over the past year. Except, of course, to the two lawyers that threatened me.

Labels: Blogging

If Blawg Review #134 was a bit daunting due to its marathon length and you were waiting to see what others wrote before lacing up your sneakers for the event, then here are some of the first reviews to check out:

• Colin Samuels (Infamy or Praise, and winner of the Best Blawg Review in both 2005 and 2006): an "instant classic."
• George Wallace (Declarations and Exclusions): "epic...run wild and free through an astonishing range of legal webloggery."
• Anita Campbell (Small Business Trends): "a marvel of a post."
• Anne Reed (Deliberations): a "tour de force" [in the comments]
  
• Dan Hull (What About Clients): "We're in awe. Quality and quantity. Really nice job...."[in the comments]
  
• Nicole Black (Sui Generis): "thorough and impressive"
• Carolyn Elefant (Law.com:Legal Blog Watch): "Exhilarating...Turkewitz's Blawg Review sets a record pace, covering at least sixty different posts around the blogosphere without once stepping out of its marathon-themed stride."
• Editor (Blawg Review): "an insightful run through the best of the legal blogosphere with an exemplary law blogger, who demonstrates once again that this project has legs...it's worth reading from start to finish"
• Diane Levin (Online Guide to Mediation): "Marathon Edition of Blawg Review A Winner"
  
• Evan Schaeffer (Legal Underground): "An entertaining Blawg Review"
• David Lat (Above the Law): Very cool!
• Monica Bay (The Common Scold): his Blawg Review #134 is an hysterical spin on the ING New York City Marathon
  

Other links:

• Stephen Albainy-Jenei (Patent Baristas): it's definitely a marathon!
  
• Walter Olson (Overlawyered): a truly marathon Blawg Review
• Ron Coleman (Likelihood of Confusion): "will leave you huffing and puffing"
  

If additional reviews come in, I will supplement this list with more links. But, of course, only if they're good.

Labels: Blawg Review, Blogging

(The New York Personal Injury Law Blog presents Blawg Review, a round-up of legal blogs, or "blawgs." It is hosted each week at a different site.)

"The World's Longest Urinal holds a special place in my heart," Marty told me. "It's not that I'm a fan of urinals," my friend said, "but that trough is symbolic of the massive scale of the New York City Marathon, and the complexity of moving so many people across the landscape of this city."

Walking among the anxious runners in the staging area for the race at Fort Wadsworth in Staten Island, sitting in the shadow of the Verazanno-Narrows Bridge, Marty and I found the anonymous Editor of Blawg Review. It wasn't too difficult, despite the record 39,085 runners that were assembling there, since he was dressed as Gumby and had painted his face green. He was the gathering point for dozens of law bloggers who had answered his call to meet and run together. With two million spectators and 26.2 miles of roadway ahead of us, toeing the line for the awe inspiring charge across the city would be a once in a lifetime fantasy for many. It would also give us ample time to meet each other, which the Editor was trying to encourage. The video invitation he emailed, seen at left, had been met with an unexpectedly high response.

We had a couple of hours to wait in the cold morning air for the canon that would start the race -- no pip-squeak starter's pistol for this collection -- so I eased over to the Jewish services being held. It's the only minyan on earth where congregants might be found sporting disposable clothing and trash bag ponchos for warmth while wearing promotional Sponge Bob painter's hats for yarmulkes. I met Peter Lattman and Sarah Waldeck at the close of the service, and the two of them struck up a conversation regarding the Oregon Supreme Court considering the legal issues of circumcision for a 12-year-old boy.

Ambling through Fort Wadsworth, which protected New York for almost 200 years, it was hard not to think of soldiers and war as we waited, especially given Veterans Day. Michael Stevens talked of some that gave their all, and all that gave some, with the Editor in agreement, lest we forget. Deven Desai joined in, bringing the discussion back to its post WWI origins, the munitions and bodies still being dug up in France, the apparently oxymoronic law of war, and the continuing efforts regarding land mines.

We couldn't talk of past wars, of course, without discussing the present circumstances. Distracting himself from the race he was about to undertake, Devon Chaffee joined us to chat about his trip to Guantanamo Bay and the difficulty tracking military commissions, while Peter Spiro wondered if amending the War Powers Resolution was in the works due to the situation in Iran. Alexandra Lahav sidled up to join the shifting conversation with news of a class action suit against a military contractor for abuse that was allowed to move forward.

As we crossed the grounds of the fort to the bridge our anxiety mounted, as we passed vast quantities of discarded outer clothing. Our own runners joined others in protecting feet, thighs, arms and nipples to prevent damage during the race, with various bits of tape, jelly or clothing. We continued to drink. There were countless discarded water bottles, food refuse, newspapers and blankets, while folks downed coffee and pre-race energy gels.

Out on to the plaza of the Verrazano we finally went with the throngs, 15 minutes before the start. Helicopters circled above in the clear, blue sky looking down on the madness of the mass endeavor. And all I could think, despite the 15-20 mile training runs I had done in preparation for this moment, was "What the hell am I doing here?"

More warm-up clothes were shed, flying this way and that toward the edges of a crowd so massive, it would take half an hour for everyone to clear the start. As the clock ticked down, former BigLaw partner and now New York Road Runners CEO and Race Director Mary Wittenberg presided over the gathering from a small stage. The colors flew, the national anthem was sung, a few words from Wittenberg, and then...

The canon erupted with a deep thud, the voice of Frank Sinatra followed in the air, the crowd surged forward toward the very heart of New York, and the race was afoot. Ascending the roadway of what was once the world's longest suspension bridge, we felt it bounce beneath the stampede as photographers in the air and on the giant towers sought to capture one of the planet's most spectacular movements of humanity.

Nicole Black caught up with me as we crested the Verrazano at the one-mile mark after a 150 foot climb, and we watched fire boats spewing celebratory streams into the air over New York Harbor. Ahead of us and to the left, we looked toward the downtown skyline of Manhattan, and the gaping hole that still exists. The queen of New York blawgers told me that when she ran this race on the first Sunday in November 2001 the ground was still burning. Black went on to tell me of her present homeland security concerns, from the vantage point of an overreaching government. She had done an investigative report on what may be a government trying to profile our kids at a young age and indoctrinate them into accepting governmentally defined ethics.

On the down slope of the bridge, we passed dozens of men who stopped to relieve themselves because they had failed to take aim at the famous half-pipe of piss in the staging area. Feminist Law Prof Ralph Stein pulled up to me to tell me had seen the long lines that stretched for the women at the hundreds of less-than-ideal portable toilets. Many women, he reported, put societal conventions aside to pop a squat near a fence, reminding him of some of the changing societal norms he discussed in A Tale of Two Books.

Marty, who had left my side in the athlete's village, reappeared to whisper, "Are you sure you want to go down this route, with a feminist law blog and semi-public urination? Mightn't you be taking a risk?"

Ignoring Marty, I went on to tell Stein how legendary nine-time winner Grete Waitz dispensed with modesty while dealing with mid-race intestinal upset in 1984 to claim a shit-kicking victory here in full view of a national television audience. Said Waitz in her 1997 book On The Run, "When you are running a major race and in the lead, you don't stop to go to the bathroom." Since I couldn't find the quote online, I scanned the pages from her book: Waitz-Book.pdf.

Copyright guru William Patry glided up to me, having just seen me scan and publish here pages of a book, as we came off the bridge and under an overpass. Passing the first cheering spectators yelling for names that so many of us had written on our shirts, he talked to me about issues of potential copyright infringement and the concept of fair use. Interestingly enough, he told me, Sean "Diddy" Combs -- who finished this marathon in 2003 while raising $2M for charity -- may be a copyright bad boy. Patry had "Not Diddy" scrawled on his shirt to avoid confusion.

Marty slipped back in to quickly chide me, a pattern that would recur throughout the day. "How can you talk copyright when this is not within your area of expertise and you are ignorant of intellectual property issues?"

Into the heart of Brooklyn we went, quickly passing another legend of this race: Zoe Koplowitz and her purple-painted crutches. She went on to finish the race dead last. As she always does. My hero.

Then out on to Fourth Avenue! Long, glorious Fourth Avenue, packed with huddled masses from around the globe breathing free within the magnificent tapestry of New York. We saw signs in languages too numerous to mention, fire truck's from New York's Bravest parked on side streets with ladders extended high out over the course, and thousands upon thousands of screaming children stretching out their hands to be slapped by passing runners. Immigration Prof Kevin Johnson moved swiftly through the extraordinary diversity of this crowd that lined both sides of the road, and took the opportunity to let me know that anti-immigration alarmists didn't fare well this week in elections. "This is a city of a thousand cities," he said looking out in wonderment. "And this is a nation of a thousand nations. And it's stretching before our eyes."

Marty glided up to me again, unseen by others, trying hard to contain himself: "Warning! Warning! Stay away from politics! That's not a Blawg Review!"

Seeing all the cops on Fourth Avenue, not just supplying security and crowd control, but actively cheering us on, had taken Mark Bennett by surprise. Bennett, who is now live-blogging a Texas murder trial he is defending and seems pretty fast on his feet, was completely unaccustomed to having cops on his side. He told me that, as a matter or practice, he refuses to represent a snitch and help the government. In a heartbeat, other criminal defense lawyers drew near to weigh in on the subject, including Norm Pattis, who couldn't comprehend that cooperation with the government is wrong, and Scott Greenfield who said he has a position between the two of them.

Coming up to seven miles, Steve Bainbridge and I squeezed down energy gels followed by water and Gatorade chasers handed us by some of the many thousands of volunteers helping out. Marvelling at the landmark Williamsburg Bank tower that had come into view, Brooklyn's tallest building with a magnificent clock tower, he turned our gathering group to a favorite subject: The marriage of business and law. And with that, he went on to discuss the fifth anniversary of Sarbanes-Oxley, passed in response to corporate and accounting scandals, and the excerpts from his book on the subject he made available. Leon Gettler was listening, and stopped Bainbridge to note that the number of corporate fraud investigations was plummeting. He too had marvelled at the Williamsburg Bank tower, which had started this conversation, and which we were fast approaching. (I didn't have the heart to tell them the building had gone condo.)

The tower stands at the eight mile mark, and we made a sharp right turn onto the tight confines of Lafayette Street, passing the Brooklyn Academy of Music where mid-race marriages have been known to take place. Then past a high school band playing the tune from Rocky. Like they do every year. Conversation stopped while runners stretched their vocal chords and pumped their hands high, a scene that was repeated again and again for many of the 120 bands that lined the route.

Then on through Bedford-Stuyvesant and into Williamsburg at 10 miles, where the late, legendary Fred Lebow used to scream in Yiddish from the pace vehicle at the black-hatted Hasidim for more enthusiasm, as they looked curiously at the throngs passing through their enclave. His efforts here can still be felt.

In to Greenpoint we went, passing Polish immigrants and gentrifying hipsters that help make Brooklyn one of the great melting pots of the world. As we did, a sweet, smoky and unmistakable smell wafted our way, leading James Peters, who flew here with many other California bloggers to run with us, to pull up by my shoulder. "It's been a while since I thought about smoking that," he told me, "But it really isn't compatible with training for a marathon." He went on to talk of the case currently before his high court, regarding an employees' medical marijuana use and the collision of three different laws. Vikram Amar, flashing across the New York blacktop to catch up, gave us an even more extensive view on the medical marijuana issue.

Our band of running attorneys had grown significantly, for the difficulty finding us in the crowd was greatly eased by the Editor's Gumby costume. Anne Reed turned serious to wonder about another group of attorneys, with far more on their minds than our frivolity -- the mass of lawyers that have taken to the streets in Pakistan after the Supreme Court was fired by Gen. Pervez Musharraf. Bob Ambrogi, now joining our group, had no doubt those lawyers are heroes, as did Michael Dorf and Barry Barnett (who wrote an open letter to our own top politicians). Scott Greenfield, who still followed close after the snitch discussion and with boundless energy to discuss more, was reminded of Dick the Butcher's idea of how to seize power: First thing we do, let's kill all the lawyers. Since lawyers will never agree on everything, however, David Giacalone took on Greenfield's interpretation of the (in)famous Shakespearean line. But Giacalaone no doubt endorses the rally planned by New York attorneys in support of our Pakistani brethren of the bar. Jamie Spencer openly wondered how American lawyers would react under such circumstances, but rallies by American lawyers, George Wallace piped in, was not something he expected.

The subject of Pakistan's attorneys followed us to the halfway mark at the Pulaski Bridge. That bridge led us up and over Newton Creek, the most polluted and noxious waterway in the United States as we crossed from Brooklyn to Queens. This environmental disaster brought Mike Millikin to my side (while testing some new running shoes) to talk of changing times, and discussed the suit Gov. Arnold Schwarzenegger brought this week against the Environmental Protection Agency to curb greenhouse gas emissions.

While law and politics occupied much of the running commentary, we psychologically prepared for the 59th Street Bridge that would shortly take us from Queens to Manhattan. Then David Lat sidled up to the group looking for dirt for his legal tabloid. Running in a discreet costume so that he might hopefully sneak a peek under some judicial robes, he was looking for tablawg gossip on a judge that may have played a role in changing his kid's bar exam grade from fail to pass.

It was also in Queens that a very excited Bill Marler caught up as I grabbed orange slices from bystanders. Marler, a well-travelled expert in food contamination cases, told me how Queens is now home to some of the most exotic restaurants in the city given its huge Asian population. Queens has its own Chinatown, Koreatown and Little India, and the 7 train that runs through the borough is known locally as The Orient Express. We talked of fueling up for the race and our pre-race meals (peanut butter, banana and chocolate chip sandwich for me). But what he really wanted to know as we turned back to the subject of law, and couldn't yet figure out, was why there was such an upsurge in eColi contamination in the beef industry this year.

We hit the 59th Street bridge just past 15 miles, and talk around us slowed. We heard the sounds of our feet hitting the asphalt and our labored breathing as we climbed the structure, and little else. Except that due to the absence of crowds here, I could overhear newlywed Peter Lattman, now riding in the press truck with his colleague Amir Efrati because he's too tuckered to run, talking about the marathon running prosecutor of Olympic track start Marion Jones. While watching us huff and puff up the bridge, he comfortably went on to discuss a different marathon: The run by Miami defense lawyer and sole practitioner Rick Diaz from the local courthouse to Washington to argue before the Supreme Court on a high-profile Internet pornography case, holding on to it despite the efforts of some in BigLaw to snatch it away. But a little guy doesn't make it to the big leagues without criticism. Indefatigable Eugene Volokh was able to carry on the conversation notwithstanding the hill, and told us he was less than enthused about Diaz's brief. Carolyn Elefant, while not keen on talking through the climb, wanted to make sure we heard her own thoughts on a fellow solo heading to the Supremes and Volokh's criticisms.

Lyle Denniston, who did a post-race analysis of Diaz's case, caught his breath as we hit the bridge summit and gazed out at the midtown Manhattan skyline spread before us. He wanted to talk to me about security, and as a veteran of this race, he knew this spot would be the last quiet one for many miles. Each of us knew that despite the best efforts of the city for this annual stampede, the race is really unsecurable. This concern turned to guns and brought up a Second Amendment case that the Supreme Court considered this week, taking on a subject it had not broached in seven decades: Is the right to bear arms a personal right, or a collective one belonging only to a well organized militia? The ramifications, in terms of the number of guns on the street, are enormous.

Coming down the other side of the bridge we started to hear the buzz. Louder and louder. Then down off the ramp it turned into a roar!

Into the teeth of a thundering crowd stacked 5-10 deep we ran, swooping through a 270 degree turn that took us under the bridge and out onto the broad expanse we call First Avenue. It has been described as the greatest thrill any recreational athlete will ever experience.

Now who could think of law at a time like this? Not with the voices of a million people screaming, bouncing off the canyon-like wall of condos and co-ops that line the boulevard. But it was even better than you might imagine, for the leaders were long gone. The crowd wasn't there for them, but for us. Their friends. Their neighbors. And complete strangers.

Elite athletes have been known to burn out on this 3+ mile strip due to the crowds, exhausting themselves well before the finish, across this great stage that one writer called a magnificent piece of urban theatre. Conversation with other bloggers was virtually impossible as we scanned the delirious multitudes waving signs, shouting encouragement, hanging from balconies and open windows, or comfortably quaffing beer at open air cafes.

David Giacalone found me again in the crowd, this to time to remind me that themed blawg reviews tend to be "annoying, strained and distracting." "Too late," I shouted back. "I'm having way too much fun, and besides, I'm on a roll."

The roll slowed a bit though, as we entered Spanish Harlem at mile 19 on the upper reaches of First Avenue. Moving through the barrio, Colin Samuels excitedly told me of the Stars Wars storm trooper he passed, snapping the picture at left on the camera he carried during the race. "I can't believe it!" he shouted at me. "I just blogged about him in that famous Star Wars bar scene in, How is open software different from the Mos Eisley cantina?" I confessed it was a question I never asked myself, though the more technologically inclined may wonder, as I waved to a group of nuns cheering us on.

The Willis Avenue Bridge leading in to the Bronx is the 20 mile mark. The Wall. That special point in time where the body starts to ask blunt and impolite questions about what, exactly, the brain is asking it to do. Marty returned to tell me that the conversation turned ugly.

"You didn't think I would miss this, did you?" It was Howard Wasserman from the Sports Law Blog, and he was looking a lot better than I felt as we crossed over the electronic mats at 20 that were monitoring our race. With each runner having a radio frequency ID tag tied to their shoes, Wasserman told me as he continued the technology discussion, we were not only being tracked every few miles, but our times were being posted live on the web and emailed to spectators looking for particular runners. "And most importantly," he said, "it makes it vastly more difficult for a cheater like Rose Ruiz to skip part of the race." But once on the subject of sports cheating, he would not let go, and we turned to football and the potential for the currently undefeated New England Patriots having an asterisk next to their names after being busted for cheating.

"Back in the day Rosie cheated, the business of sports wasn't nearly as big as today." Mark, from the SportsBiz blog had joined us, but he wanted to talk horse racing, not human, as we moved through the south Bronx. As I squished another gel down the pipe, hoping to fend off bonking, Mark went on to describe how Curlin, winner of the 2007 Preakness and Breaders Cup Classic, found his way into a scandal involving lawyers, drugs and money that may put him into an extraordinary public auction.

And then, to no one's surprise, we saw Monica Bay in the Bronx, sign in one hand, beer in the other, ball cap on head and sitting in seats she dragged to the course, hooting and hollering. Seeing our group, she lept up to discuss the excitement of the race and to offer much-needed encouragement, running a short distance with us (without spilling) to contrast our race to the bland, bland, bland book she just reviewed from the high-profile president of Hearst magazines. Before heading back to her cozy seats she lied like hell and told us we looked great, and that the finish was near.

Up and over the Madison Avenue Bridge we headed back into Manhatten and Harlem as we hit the 21 mile mark. First we heard and then we saw the sounds of gospel, with a robed church choir singing and swinging on church steps, inspiring us forward against the growing revolt in our legs. Harlem brought thoughts of civil rights battles of years gone by. Kia Franklin didn't want to talk of the past though, but of the present, and the compromises just made in Congress with respect to civil rights for gays and lesbians in the Employment Non-Discrimination Act (ENDA). Brooklyn Representative Yvette Clarke, running with us now, voted no on the controversial and deeply emotional measure and told us why. Quizlaw's Dustin then appeared and wondered if this was a good time to discuss Out Magazine's poll that Bill O'Reilly was the gayest ever. (Note to Dustin: Work on your timing.)

Racing down Fifth, and at this point "racing" is a somewhat flexible word, we passed the 22 mile mark hitting Museum Mile, with its remarkable collection of nine different institutions. We passed Mount Sinai Hospital where my kids were born, and where I stopped briefly for a kiss from my wife. She had been watching the race and talking with Evan Schaeffer as he reminisced about Norman Mailer, who had just passed away inside Mount Sinai. Passing the hospital was just the excuse that blogging newcomer Bob Wachter needed to pull up next to me to discuss medical errors becoming a crime.

And the talk of medicine also brought up the $4.85B settlement with Merck regarding Vioxx with payments estimated at $150K - 200K per person. Byron Stier, a mass tort expert, who by the look on his face at the time was clearly going to be needing his own painkillers the next day, thought the tort system worked fairly well for the Vioxx litigation. He ran with his fellow mass tort proffessor Howard Erichson, who analyzed for me the benefits of the settlement to all of the parties.

Walter Olson and Ted Frank were now in the thick of it, dressed together in matching black suits, hats, sideburns and sunglasses, doing their best to deal with the crowds from the running explosion. "We're on a mission to blawg," Frank explained, and he launched into his own analysis of the Vioxx settlement, calling it extortionate. My own unanswered question is whether those with the biggest claims and the strongest liability will agree to settle and are included in that $4.85B, or will they continue on to verdict.

"We're on a mission to blawg?!?" Dustin was still with me. "Did Ted Frank really say that? "Now hugging," he said, "that can be funny." Kevin Underhill, not to be outclowned by the likes of Dustin, slipped in between runners to catch my ear and go for the comedy kill with a lawsuit about a dancing dentist that drilled his way into trouble. Jerry Buchmeyer, with a racing bib pinned to his judicial robes, called each of the above amateurs. "Read this excerpt from a will," he said, "and get back to me." And then (out of nowhere!) Deepak Gupta from Public Citizen comes racing up to present a video of Stephen Colbert lifting the veil on a faux-consumer rights advocate that is actually a front for industry. "Now that's my idea of funny," he said as he ran though a water stop grabbing fluids, but getting a third up his nose.

Our exhaustion is met with some welcome relief when we find the Hash House Hariers on Fifth Avenue. The hashers, a drinking club with a running problem, insist we stop for a beer. Who could refuse? But when some in our group didn't drink fast enough, they started singing, in words that made the parents of small children shudder.

Now gently numbed, we headed into Central Park where the road twisted and turned through the rolling hills and changing leaves of Olmstead and Vaux's masterful park creation. The shade of the trees, the super oxygenated air of the park, the shortening course and the tight roadway that brought the crowd in close, inspired us (along with the beer) against the growing pain in the quads that we tried to fend off. We caught our second wind in the park, with the help of a sign in the crowd.

Eyeballing that sign, Michael Dorf pulled up beside me to discuss the First Amendment issues of public signs, not in the fun context of a marathon, but in the harsh context of vile protests at a funeral and an historic jury verdict. Eugene Volokh joined us again, this time to discuss the First Amendment coming into conflict with the act of intentionally inflicting emotional distress.

"Damn the Queen!" The voice of Brit Tim Kevan caught me by surprise as we hit the 25 mile mark. He explained that the marathon was lengthened from 24.85 miles (40,000 meters) at the 1896 Olympics in Greece to 26.2 miles in London in 1908 so that the race could finish for the royal family in front of their viewing box. If not for them, he said, we would now be sipping tea. Having caught my ear, he gives me a wrap up of recent British lawsuits.

Hearing a discussion of the original length of the race as we headed south past the Central Park Zoo, academics David Strauss and Jack Balkin started debating originalism in the constitution. I, on the other hand, barely able to do simple math to time my splits and badly overheating, grabbed water to toss over my head, only to find I had stupidly dumped Gatorade.

"How the hell do those guys do that?" Marty was back. "And why aren't those two wiped out by now?"

"How the hell do you guys do that?" I demanded. "I'm wiped." Strauss and Balkin looked sheepish, but confided they had just jumped into the race a mile back. They were heading to the final quarter-mile where they will act, as they do each year, as volunteer bandit-catchers to pull rogue runners off the course. "I just hope I don't have to tackle anyone this year," Balkin remarked.

Leaving the park near the Plaza Hotel we turned west on Central Park South, bracing ourselves for an almost demonic fact that few discuss: The road that stretched to Columbus Circle past the grand hotels on the park's southern border is a long, subtle uphill in the 26th mile that can be a misery. It was for Jonathan Adler, who came to New York running on a dream, but who was now running on empty, and in an almost psychedelic state of mind from dehydration unable to tell heaven from hell or blue skies from pain.

Pushing up toward the new Time Warner Center and Columbus Circle -- past the spot where Mexico's "Wrong Way" Silva inadvertently turned off the course in 1994 a half-mile from the finish, then recovered to win by two seconds -- the course turned sharply right back into Central Park.

Our last turn! The course here is but a single lane through a tunnel of trees. And from that tunnel we emerged into the park and the waiting crowds, in our own minds like Olympians entering the stadium.

And out onto West Drive! The final approach. The distance now marked in yards ... 300 ... 200 ... 100. The finish line bleachers packed. A banner over the finish line. A last blast of crowds screaming its exhortations, for a final uphill surge to the clock.

Before crossing we tossed a salute to Fred Lebow, who ran this race in 1992 while his brain cancer was in remission. He was standing by the finish waiting for us, as if frozen in bronze.

Exhaustion and exhultation. Euphoria and pain. Undisguised raw emotions. Runners poured across the line into the finishing chute.

In the finish area, our pace now a shuffle, Jacob Goldstein of the WSJ Health Blog discussed with Jake Young his interview with the medical director of the race, as he volunteeed his services in part of the largest medical team ever assembled for an athletic event. Young listened while watching finishers stream across the line. He talked of the tragedy of Olympic hopeful Ryan Shay the day before, and the 5.5 mile memorial run just set up in his honor with cardiologist Dr. Wes, who had his own thoughts on the athlete's sudden death.

The crinkling sound of heat shields. The ringing sound of finishers' medals. The sound of discarded water bottles kicked and rolling. Food. Our hands quickly filled with essential items geared toward health and recovery.

Walking toward the baggage claim area, Dan Solove approached to talk about the fictions in this post. "You know," he said, "there are some who might think your recitation of today's events actually held some morsels of truth." Having started his book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, I told him I understood the problem of false statements on the web and their lingering effects, but that even lawyers have a sense of humor. Or at least I hoped so. And besides, I told him, not all of it was fiction. (Nevertheless, the issues of rumor and gossip were a good enough reason to edit out his hockin' a loogie at mile 21 that hit my shoes.)

The Editor was the only one left with me as we baby-stepped the road north through the park into the world's largest locker room, which stretched almost two miles in order to hold the moving swell of humanity. His face was smeared with Gumby green paint that ran and mixed both with sticky lime green Gatorade and with his own accumulated body salts, a nightmarish look that was lit up by the sun's reflection off his heat shield. But his eyes were electric and ecstatic and shone through the gloppy mess, giving the volunteering medical staff all the information they really needed about his health. He was delighted not only with the run, but because so many law bloggers were able to meet in person.

As we stripped out of sweat-soaked running gear into dry clothes and headed out to Central Park West, where family reunions take place, he was curious as to how I would put together this week's review of the best of the blawgosphere. He wanted to know if I would devote the review to personal injury law. My mind was a blur given all I had seen and heard during the day, but I was clear that my review theme would be different: If newcomers wanted to know what I usually write about, they could peruse some of the popular posts from the last year at the New York Personal Injury Blog.

Just before parting ways I noted an odd grin on his face, not quite evil but certainly mysterious. "You know," he told me, "I emailed that inspirational video you used at the top of this review to get people to show up. But if they saw this other one on the left, they might not have shown up." I told him I would check it out tomorrow.

Marty was back again, not to chastise me thank goodness, but to reassure as I looked for my wife in the reunion area. He helped as I tried to figure out how to put the review together. "You're a trial lawyer," he whispered. "You should know how to tell a story."


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(Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.)

(Eric Turkewitz is a personal injury attorney in New York)

Labels: Blawg Review, Blogging

This is a running "best of" list that was originally created November 11, 2007 for new visitors. It has been modified to include posts from the blog's inception in November 2006 until the end of 2008. More recent years will appear separately and in the right sidebar.

The older posts are on top and the most recent are on the bottom.
----------------------------------------
2007:

Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court
I followed medical blogger Flea as he live-blogged his own medical malpractice trial under a pseudonym, was outed on the stand by plaintiff's counsel, took down his blog and then saw his name and face blasted across the front page of the Boston Globe above the fold. I followed up with an interview with the attorney who tried the case, and added information not available in previously published reports. Some have called this one of the most fascinating stories in either the medical or legal blogospheres this year.

Philip Morris Punitive Damages Decision -- Why It Was Good For Plaintiffs
My analysis of the Supreme Court's decision in Philip Morris v. Williams that tossed out a $79.5M personal injury punitive damage award, and why a careful reading of the opinions and judicial comments at oral argument brings a surprising conclusion.

Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees
A former Supreme Court nominee (and a tort "reformer") brings a personal injury suit in New York. Gee, you think I'll cover that? I also did an analysis of the Complaint by his BigLaw firm and pointed out how to fix the many blunders.

Your Bar Exam Answer Sheet Is Gone -- Now What?
New York managed to screw up this year's bar exam, losing some of the essay questions submitted by computer. The last time they screwed up, in 1985, I was one of the recent grads taking the exam. This is the story, complete with four-part harmony and dancing girls.

Don't Post This Letter On The Internet!
It's not personal injury law, but about a cease and desist letter regarding a blog, where the lawyer tried to claim a copyright on the letter itself. It didn't turn out so well for the lawyer (or his client). As it happens, I also got a take-down letter shortly after this blog posting was made, due to my using the Avis logo for a decision regarding car leasing and rental companies. Those folks have no sense of humor. The logo is still there, by the way.

Conseco Insurance Scandal Follows Movie Plot
When life follows art you have to sit back and chuckle, except it wasn't so funny for the people that bought policies from this insurer.

Practice Tip: One Way to Cross-Examine The Attractive Doctor
I'm not retired and I'm not in academics. I handle cases from intake through trial and sometimes appeal. And this was one of the popular practice tips I put out.

How New York Caps Personal Injury Damages
Since tort "reform" is a constant issue, I addressed how damages are limited in the real world, without the one-size-fits-all damage caps that big business tries to push.

Personal Injury Law Round-Ups
Weekly round-ups of personal injury news and blog postings that I did from February-November 2007. (Links to other round-ups also appear at this link at the top of the results.)

And that's my tiny corner of cyberspace -- a focus on personal injury and medical malpractice, sometimes oriented toward New York, but reserving the right to go wherever the hell I want. So go ahead, add me to your RSS feed. What's the downside? Maybe next year I'll actually say something intelligent.

Blawg Review #134 -- A round-up of the best of the legal blogosphere for the week, done in the context of the New York City Marathon, and was my favorite post for 2007. Thankfully, it was also critically acclaimed.

2008:

Who Sits Jury Duty (The Turkewitz Beer Test) 1/22/08

So here is my take on jury selection, New York style...

More on Bush's Frivolous Claim of "Junk Medical Lawsuits" (1/29/08)

When I wrote this morning that Bush complained, once again, about "junk medical lawsuits" in the State of the Union, I wrote that he never cites any studies to support the claim. Nor for that matter, do tort "reformers."...

How to Fool A Jury (Is it Insurance Fraud?) - My expose on an "independent" medical exam company that directed its doctors to give reports that were biased. (Feb. 12, 2008)

I Passed the New York Bar Exam (2/26/08)

Friends, law stories don't get much better than this. It started with the New York bar examiners losing my test results in the summer of 1985. And it ends 22 years later in the wake of another New York bar exam fiasco, this time with lost essay answers on laptops due to a software glitch. This graduate, who was told that he failed the July 2007 exam, will not be taking the February bar exam being given today. This is his story...

New York's No-Fault Problem with "Serious Injuries" 3/2/08

...if you are lazy and "milk" the injury, you qualify to bring suit under New York's statute, but if you struggle back to work, and work despite the pain and limitations you might have, you don't qualify. The "serious injury" law, in other words, works as an incentive for people to be lazy and complain instead of being as productive as they can....

Punitive Damages: Why America is Different from Europe 3/26/08

In the New York Times, Adam Liptak writes that in Europe punitive damages are not viewed the same way they are here (see: Foreign Courts Wary of U.S. Punitive Damages). The idea of punitive damages "was so offensive to Italian notions of justice that it would not enforce [an] Alabama judgment" in a case Liptak uses to illustrate the point.

Supreme Court Grants Cert in "Fantasy Baseball" Case; Three Justices Recuse Themselves Due To Participation in High Court League - (April 1, 2008)

The U.S. Supreme Court granted certiorari today in the "Fantasy Baseball" case of CBC Distribution v. Major League Baseball Advanced Media. The suit is remarkable not only for the First Amendment and right to publicity issues that form the basis of the dispute, but because Justices John Paul Stevens, Samuel Alito and Stephen Breyer recused themselves due to their participation in a fantasy baseball league comprised of current and past court personnel.

with a deconstruction of the fantasy here.

It Was 20 years Ago Today... (5/2/08)

On May 27, 1988, after 2 1/2 years as an associate at a top medical malpractice firm in New York, I quit. Not for another job. But to pick up a backpack and travel around the world.

Trial Blog-Part 1 (6/24/08) This is the first of a seven-part series on a Bronx car accident trial, presented as a day-in-the-life. Links at the bottom bring you to the subsequent parts.

Blawg Review #188 -- Arlo Guthrie came to my place for Thanksgiving Dinner with a bunch of law bloggers for a Thanksgiving dinner that couldn't be beat, and we discussed the week's events.

Labels: Blogging

The New York Personal Injury Law Blog is hosting the next weekly Blawg Review, a round-up of the most interesting blog postings from throughout the legal blogosphere. So do me a favor and write something intriguing for this round up, or I won't have anything to work with.

Two complex rules for a post to be considered:

1. It has to be well written;
2. You have to let me know it exists in time for inclusion.
   

The way to submit your blog posting (or someone else's) is at this link, not by sending it directly to me.

And this is important: The theme is not going to be personal injury law. I do those types of reviews each week in my personal injury law round-up. So while there will be personal injury posts if I get quality submissions, this Blawg Review will be completely different from my other postings. Suffice it to say that I can, and will, fit any topic into the review. (My PI round-ups will return the following week.)

Deadline for submissions is 11:59 p.m. on Saturday, for publication Monday. It would be appreciated if submissions were sent throughout the week, and not left to the last minute, so that I'm able to organize the Blawg Review ahead of time.

I invite you to return on Monday so that we can race together across the legal landscape.

Labels: Blawg Review, Blogging

Nikki Black has the winners of her Best New York Blawger and best New York Blawg up at Sui Generis. While yours truly finished out of the money (waaaaay out of the money), one can't argue with who came out on top. But you have to go there to find out.

Labels: Blogging

I mentioned the other day that Nicole Black at Sui Generis was accepting nominations for contests for best New York Blawg and Best New York Blawger.

The nominations are closed and the ballots are now posted. So if you care to vote, or simply wonder who else is blogging either from New York or about New York) then head on over. The ballots are only open for one week. Though I would never suggest you vote for me. Not my style.

Rumors of ballot-stuffing have, of course, already surfaced.

Labels: Blogging

Nicole Black at Sui Generis is looking to crown both a best New York Blawg as well as a best New York Blawger. Nominations are open at this site. These things are always useful for discovering new blogs that others like. I've been nominated so far in the blawger category along with others, but I won't tell you to vote for me. I'd never do that. Hint at it perhaps, but beg and grovel for votes? I wouldn't stoop so low.

And a Best Blawg category exists at the 2007 Weblog Awards. I've also been nominated here (along with a bunch of A-listers, one of whom will obviously win). But there is a place to show your support by hitting the + button next to a nomination. I mean, if you want to. I wouldn't ask or beg or anything.

Anyway, since I'm still in my rookie year, suffice it to say I am flattered.

Labels: Blogging

I've been asked by Anne Reed at Deliberations to compose a top ten blawg list, as she in turn was asked to do by the anonymous editor of Blawg Review, because she is "simply the best." I can't argue with that.

So, without further ado, and without replicating any blawgs on the two lists linked above:

1. Overlawyered - Walter Olson's blawg that needs little introduction, giving you the skinny on suits that should never have been brought, and politics from the Big Business side;
2. TortDeform - The polar opposite of Overlawyered, currently written by Kia Franklin and bringing you the consumer side of the equation. If you read one you must read the other;
3. WSJ Law Blog - Peter Lattman brings quirkiness to his employer's staid personality;
4. How Appealing - Howard Bashman is the best aggregator of law stories around, even though the brand new ABAJournal is breathing down his neck with competition. The only bad part is I now have to root for his Phillies since my Mets choked;
   
5. Sui Generis - Nicole Black is the reigning Queen of New York blawgers, and the first to link to my little corner of cyberspace;
6. Simple Justice - I don't even practice criminal law, but Scott Greenfield is such a great writer, original and funny, that this should be part of anyone's must read list. You won't see the mere repetition of someone else's thoughts coming off his keyboard.
7. Real Lawyers Have Blogs - Kevin O'Keefe has provided plenty of tips on blogging, and should be required reading for anyone who wants to do it well;
8. New York Attorney Malpractice Blog - Andrew Bluestone's blog covers cases from all over, and is great reading for examples of how lawyers get themselves in trouble, and serves as a constant reminder on protecting oneself;
9. TortsProf - Bill Childs supplies a never-ending series of stories about torts, making him a must read in the field;
10. Kevin, M.D. - Not a blawg you say? Dr. Kevin Pho hits the intersection of law and medicine with his aggregated medical content on a regular basis. The Bashman of the med-bloggers.
    

Bonus Blog - Not technically a blog, but a blawg search tool, Justia.com allows you to click on a category and then get an RSS feed for that entire category. Pretty handy if your RSS feed is filling up with so many individual blogs, and you want to see some of the more irregular ones that float about.

And so this meme is now passed on to the above. But don't blame me for starting it.

Addendum:
I've also now been tagged by Kevin Underhill at Lowering the Bar, who was in my rough draft along with other legal comics at Quizlaw, Legal Antics and SayWhat? The problem, of course, is that once you start with the comedians you never know what will come flying back at you. (I've also been tagged by Nicole Black who not only runs Legal Antics, but Sui Generis.)

I could easily fill another post with more bloggers. I felt guilty about cutting Judicial Reports, Matt Lerner's terrific New York Civil Law, and Thomas Swartz's New York Legal Update, for instance, but I was already top heavy with New Yorkers.

And since I read so many personal injury blogs, I felt bad not writing about up-and-comers such as Hans Poppe, Ronald Miller or Perlmutter & Schuelke, especially since most of the blawgosphere doesn't usually see them.

And I thought about tagging a Highly Trained Monkey, not because she has anything do with law, but simply because she hates getting tagged with memes.

So I could list another 10, but it wouldn't be right.

Labels: Blogging

Blawg Review #127 is up at Anne Reed's jury-related Deliberations. In what it surely one of the best round-ups of the year, she gives us the "17 Best Tips For Voir Dire."

To get to those tips, she brilliantly analyzes individual law bloggers to see what kind of jurors they, or their subjects, would make.

When they hand out Rookie of the Year honors for 2007, Anne will be a top contender.

Labels: Blogging, Inside The Jury Room

The other day I wrote about two blogs with almost identical names -- The Angry Pharmacist and The Angriest Pharmacist -- and wondered about the intellectual property issues that would arise if such blogs could be shown to have real value.

And now...Angry Doc and The Angry Doctor.

And so, a word of warning: If anyone tries to take my name I'm gonna sic one of those angry medical people on you, because it may be more fun than suing. I don't think there is any shortage in this department:

There is also The Angry Medic, Angry Scientist, Angry Astronomer, Angry Bear, An Angry Young Man, Angry 365 Days A Year, Angry Blog, Angry Chinese Blogger, and of course, Just Another Angry Blog. Not to mention an Angry Lab Rat.

It seems that, for some reason, AngryLawyer.com and AngryAttorney.com are still available, leaving me to scratch my head at the absence of righteous indignation in the profession.

But if you take one of those domains for yourself, please don't tread on the grounds of the Angry Pregnant Lawyer, who's been posting now for 33 months. So she clearly has a right to be pissed.

Labels: Blogging

It had to come up eventually: Two blogs with almost idential names, and the issue of what intellectual property rights bloggers have to those names.

Here they are:
The Angry Pharmacist (started two years ago); and
The Angriest Pharmacist (started seven months ago).

Needless to say, Angry is not too pleased with Angriest, who concedes, "I did happen upon his site and loved it...so, I semi-jacked the name."

The original is (can you guess?) angry about the poaching of his or her name.

Complicating the issue for The Original Angry is that he uses a pseudonym. Assuming he could find out who Angriest is and bring a suit, how can he ever prove he was damaged?

Now intellectual property is not my long suit, but I am curious since the same thing can (and most likely will) happen in the legal blogosphere eventually, where use of real names is the norm. After all, there are about 1,000 legal blogs but about 1,000,000 lawyers in the country, and the future blawgosphere (for us less talented people who can't create pithy names) could look something like this:

The Podunk Criminal Law Blog;
The Podunk Criminal Blog;
The Podunk Criminal Law Blawg;
The Podunk Criminal Law Legal Blog.

I toss this out there with the hope that someone, somewhere, might have a few thoughts on this...

(Hat tip to Monkey Girl).

Labels: Blogging

Above the Law, which fashions itself as a legal tabloid, has been chronicling the lack of humor at Nixon Peabody, one of those BigLaw joints that thinks it's a lot of fun to work at. They first created a song for themselves (so that's how those legal fees are spent) and then had a hissy-fit when it was leaked to ATL's David Lat who posted it online.

Some folks are their own worse enemies, as they threatned Lat on intellectual property grounds for publishing it, and then saw the song lampooned by another with a fair use parody. Lat's tablawg now lands in today's New York Times in the business section, so that all their clients can now see what they are doing.

Nixon Peabody has blown the one great rule of the digital age: Don't say, write or create anything that you don't want to see in the newspapers. And blown another rule about making dumb threats, which they can then be mocked for.

Hey, its August, which means slow news, and a chance to claim "tablawg" as my own creation since Google turns up zero hits on the word. Widespread use is not anticipated.

Late August also happens to be a perfect time to resign if you are an embattled attorney general.

Labels: Blogging, Odds and Ends

This isn't New York personal injury law, but interesting enough to note:

1. Mike Leavitt, Secretary of Health and Human Services in the Bush administration, has become the first Cabinet-level official to blog.

2. The country's first blogging coroner? (via Dr. Wes)

3. A fake law blog from the producers of the law show Damages with Glenn Close (via WSJ Law Blog), perhaps stealing a page from the Fake Steve Jobs. But if they really want to do it right, they would remove the references to the TV show that exist in the header, interact with the blawgosphere with outgoing links, and mingle real-world law and current events with their fictional show. Now that would be worth reading.

Labels: Blogging

When pigs fly, I hear you say.

Would the oldest legal blog in America -- dedicated to documenting the high cost of our legal system and, perhaps, savoring some of the outrageousness that exists (Pants Pearson, anyone?) for the anecdotal benefits -- actually add a dyed-in-the-wool, 100% personal injury attorney to their blogroll? An individual that takes tort "reformers" to task every so often? One who is a guest contributor at Overlawyered's arch nemesis, TortDeform? Well, yes. They would.

Has Overlawyered gone soft? Have they fallen under the spell of Judge Robert Bork's new found convictions?

For reasons known only to those within the super-secret confines of the conservative Manhattan Institute (and senior fellow Walter Olson) that runs the site, they have added this trial lawyer (cough, cough, spit, spit) to their blogroll -- apparently the only plaintiff's PI attorney to appear there. And the blogger they added is still a rookie. Will Olson have to turn in his secret decoder ring for this? Will that trial lawyer guy be ostracized and banished from the PI Secret Society and have to turn in his own secret decoder ring?

Stay tuned. It seems that pigs can sprout wings.
--------------------------------------------------------------------------------

I don't get around to updating my blogroll too often, but I think it's time to add a few:

• Overlawyered -- Just for fun, I'll place this entry right between TortDeform and The Tortellini. Excuse me while I grunt and flap my own new wings;
  
• Kevin, M.D. -- While Dr. Kevin Pho also has a position contrary to mine on some issues, he is a magnificent resource of stories and opinions from the field of medicine;
• Deliberations -- Anne Reed's terrific blog on everything related to juries. Also a rookie;
• Above the Law -- David Lat's legal tabloid...need I really say more?
  
• TortsProf -- Brought to you by Prof. Bill Childs from Western New England School of Law, who does a great job rooting out tort cases from everywhere the sun shines, and some places it doesn't.
  

Labels: Blogging

The New York Times is expected to announce tomorrow the start of a health blog, according to Gawker.com (via Kevin, M.D.). The writer will be Wall Street Journal columnist Tara Parker-Pope.

If the Times is expanding its blog menu into such a heavy-duty area, and you can find a list existing Times blogs of them here, then I have to believe that law will soon follow. That's not based on any inside information (though I will gladly accept tips on that subject), but on a basic gut feeling given the prominence the Times gives to law news and the current lack of such an offering.

Labels: Blogging

The American Bar Association has moved into the news and blog arena in a big way, as evidenced by their newly redone website.

A quick view shows terrific free news feeds as well as a great new compendium of blawgs. They have obviously done their homework.

The new ABAJournal also has a featured blawg each week. Let's hope they don't just focus on the big name A-listers from the ivory towers and appellate world, and present the occasional up-and-comers from the "Practical Blawgosphere" that are out there in the courthouses on a day-to-day basis.

Addendum: I noticed that New York, with 75,000 attorneys, has only 21 blogs listed on the ABAJournal site. Justia's Blawgsearch lists 28 and Blawg has 15. What does this mean? That those who think that the growth of blogs has stagnated may not appreciate that we are still very much in the early phases of the medium.

See also:

• ABA Journal: Free and a New Competitor in Legal (Blawg's Blawg)
• ABA Journal overhauls its Web site (Robert Ambrogi)
• Law News Now . . . and More to Come at the ABA Journal (Dennis Kennedy)
• ABA Journal's new website (Ernie the Attorney)
• The ABA Gets It Right (My Shingle)
  

(Eric Turkewitz is a personal injury attorney in New York)

Labels: Blogging

I haven't done any blogospheric naval gazing since I started writing on personal injury law in November 2006, since that isn't what my blog is about. But Dave Hoffman at Concurring Opinions just wrote on The Flat Legal Blogosphere And What to Do About It, and I'd like to hit a few points despite the fact I'm just a rookie.

First, read his post at the link above and then come back.

Welcome back (and yes, I stole his naval gazing graphic). Hoffman's comments in red and mine in black:

Group Blogs Do Not Predominate: Unlike the political blogosphere, the one-person operation remains a very important part of the short- and the long-tail of the blogosphere. Among the highest traffic sites are many run by one individual (Berman, Bainbridge, Leiter, Caron, Ribstein, Althouse/Reynolds (if the last two count as law bloggers). Others are run as groups (Scotusblog, Balkinization, Volokh, CO, Prawfs, Discourse, Conglomerate). But there is no clear trend, as I once predicted, toward further consolidation.

The political blogs, of course, are heavily dominated by two parties and massive amounts of money, thus making for a poor contrast. The reason for the lack of consolidation in legal blogs, I think, is that solo and small firm practitioners still practice in wide numbers across America. (cite, anyone?) While almost every other industry has consolidated -- how many solo doctors do you know now, as opposed to 25 years ago? -- attorneys have resisted. The blawgosphere merely mirrors the actual practice of law. If you need to do a comparison, look to other professions. Without looking, I'd bet accountants, architects and other professionals are similarly one-person operations.

Traffic is Stagnant: Critics notwithstanding, I still think I'm right that the legal blogosphere's growth has slowed significantly. One major law blog has seen a large increase in daily visits (SCOTUS Blog), and a few others (Opinio Juris, for example) have seen a gradual increase to around 1,000 visitors a day. But on the whole, the explosive growth in traffic of 2002-2005 no longer exists. Sites are bumping around basically where they were a year ago.

I don't know the basis of this since no link to a survey was provided, and I don't think traffic stats for particular sites are public knowledge, except for those that volunteer the info. My own small, recently-started niche blog that you now look at averaged over 700 unique visitors a day in June. I don't know if that is good or bad and would love to know what others get, but this is still just anecdotal. Absent some type of actual survey of the legal blogosphere, I don't see how one can say traffic is stagnant.

New Entrants are Rare: I think (though we need a new census). I imagine that almost every law professor or lawyer who wants to blog has now heard of the medium and has either joined the fray or decided to abstain. Moreover, it is becoming increasingly hard, as I'll discuss in a moment, to break into the game and find readers.

Most attorneys I speak with are unfamiliar with blogs. Many still don't have web sites. And I managed to find new readers starting from scratch (albeit while expending a great deal of time). While I am still very new at this, my gut tells me that tremendous growth lies ahead. Here's why: New York probably has over 10,000 attorneys who practice personal injury law (based on about 75,000 total attorneys, with the largest plaintiff's attorney group having about 4,500 members). Yet how many blawgs on that subject can you find? Since this is my area, I've looked. And you won't find much. Justia shows just 28 for the whole state covering all areas of law. There are a million attorneys in the U.S., but how many blawgs in total are there that post at least once a week? About a thousand?

There are Few Professionals: Here, we can see some parallels to political blogging. A few reporters and the gossip-hounds are doing this full-time, but by and large lawyers aren't quitting their day jobs to make money from blogging. The amateur/hobby status of law blogging is likely driven by the smaller audience of readers for law than for partisan political analysis. With the exception of Reynolds and Volokh, I imagine that no law blog could, even when fully monetized, gross more the low five-figures a year.

Yikes. I italicized the last point because it is the most important part of this response. If someone published an article in a legal journal, will that gross them any money? No. Except as an indirect form of marketing as they become known in their field for what they do. Blogging is conceptually no different. Most blawgers, I think, do it simply for enjoyment, or to network with other attorneys for possible referrals, or perhaps hope a future client stumbles on the blog while looking for counsel. Trying to place a financial figure on such an indirect form of networking is not only impossible, but would completely miss any real benefits that might accrue based on new contacts and clients.

Law Blogs Are Largely Reactive: Here, some qualification is in order. Some law blogs, like Berman's, Balkin's and Volokh's, have driven national debates on issues like torture and sentencing. They have done so through "original" reporting on legal issues, in a significantly deeper and more comprehensive way than reporters on the "law beat" ever could. These blogs really show the value added of law blogging. But, overall, most law blogging, even at high-traffic sites, remains parasitic on the main-stream media.

True, they are reactive. I've also noticed, though, that in two stories where I was presenting original material (that supplemented that of the main stream media) my traffic spiked upward. I think it is clear that those that pursue original content will flourish and those that are strictly parasitic will stagnate. Very Darwinian. Very capitalistic. Isn't that how it should be?

Addendum: See Also:

• Blawgosphere: Revenge of the Old Guard (Simple Justice)
• Hoffman's "Stagnation" and the Future of Legal Blogging (PrawfsBlog)
• Why Do Lawyers Blog? (Concurring Opinions)
• Welcome to the Practical Blawgosphere (Mark Bennett)
• Practical Blawgosphere Rollcall (Mark Bennett)
  

(Eric Turkewitz is a personal injury attorney in New York)

Labels: Blogging

Avvo, the new attorney ranking website, has been responding to frequent criticisms of its site. This was revealed in a a 1 1/2 hour interview with Paul Bloom, a founder and VP of marketing at Avvo, by Scott Greenfield -- owner, operator, writer, editor, publisher and grand poobah of Simple Justice.

You can read the details at Avvo: My chat with Paul. That's Scott's mug shot at right, not Paul.

Addendum: At the request of Mr. Greenfield, I have added a more up-to-date photo.

See also:

• Ratings Change at Avvo (The BizzBuzz)
• Avvo Changes Ratings Scheme (Screenwerk)
• Avvo Drops Ratings on Some Attorneys (John Cooke's Venture Blog)
• Seattle Lawyers Sue New Lawyer-Rating Web Site (WSJ Law Blog)
• Bravo for Avvo? Not so Quick (Robert Ambrogi)
• Avvo Rates California's Best -- Not Always Kindly (Legal Pad)
• Avvo Launches With Mixed Ratings for Its Lawyer Ratings (Law.Com Blog)
  

Labels: Blogging

(Having discussed the trial of medical blogger Flea, I turn today to coverage by the Boston Globe)

Was it just me, I wondered? Flea's name was plastered on the front page of the Boston Globe and I thought, "Is that really necessary?"

Leaving aside the issue of whether this pediatrician brought undue attention on himself due to his blog entries about his medical malpractice trial, we have to turn to the conduct of the Globe and ask some questions:

Was the outing of a doctor's pseudonymous blog in a courtroom a human interest story? Yes.

Was it interesting enough to write about? Yes.

Was his name critical to the story? Well, no.

Did this deserve to be a front-page story, above the fold (without his name)? Maybe. Human interest stories do appear there, but when they sit atop a human tragedy, in this case the death of a 12-year-old, there really isn't much of the "fun" quotient usually associated with such prominent placement. Page 10 of the local news, maybe.

When I saw the article appear I was surprised both by its extraordiary placement on the front page, and more significantly, the outing of the doctor's actual name by the Globe in such a spot. So too with the names of the patient and his father. While the episode was surely interesting, these informational nuggets added little to the story. They were, however, guaranteed to bring heartache and pain for those named.

This is not a discussion of whether the Globe could do this -- the First Amendment clearly protects them -- but whether they should do it in the manner they did. It goes to morality, not to law.

After deciding to use the names, and deciding to blast the story with the acerbic blog comments across the front page, the writer then engages in a self-fulfilling prophecy:

The case is a startling illustration of how blogging, already implicated in destroying friendships and ruining job prospects, could interfere in other important arenas.

That's true. It can interfere in important arenas. So why did they do it? Is it the policy of the Globe to inflict pain on people simply because they can? Was there some kind of sick gratification in seeing a young doctor get his comeuppance for perceived arrogance in his writings, and damn the consequences? While he was outed in the courtroom, it was an outing no one else knew of beyond those limited confines. Until, that is, the Globe thought it would be fun to blast it to the rest of the world.

I asked the plaintiff's attorney, Elizabeth Mulvey, about the Globe article, which appeared over two weeks after the trial was over. She said:

I asked the Globe not to use either party's name, as I felt both sides had been through enough and that it really didn't add anything to the story, and also that I was not the original source of the story, which was leaked to the Globe by someone not involved with the case. Although I would have preferred not to comment at all, I felt that it was necessary to correct some misinformation supplied by this source. I really feel that it is regrettable that, because of this source's indiscretion, both my clients and the doctor were subjected to unnecessary pain.

The result of the Globe's decision to use names is that this story will repeatedly pop up when new patients Google this doctor years from now, since numerous blogs have now reprinted Flea's name while quoting the article. That seems grossly unfair given that it results from his prominence as a medical blogger rather than any wrongdoing as a doctor.

But those bloggers that have already published his name, simply by quoting directly from the article, can un-do some of the damage they may have inadvertantly done if, upon reflection, they feel an injustice has been done. They can go back to their blog postings and edit out his name -- using instead his initials, first name, or pseudonym -- so that they are not unintended accomplices to the Globe's lack of good judgment. The question to ask: Should Flea be permanently branded, in his real-life profession, because of this? Bloggers may not only wish to make that modest edit, but to explain to their readers what they have done and why, so that others might follow.

Will that scrub the Internet of such references? Of course not. But it might cut down on what could be page, after page, after page of such results. No matter what some might think of the comments Flea made, the punishment that the Globe sought to inflict upon him seems vastly disproportional to any sins he committed with his blog.

The Globe created a very high profile problem. The blogosphere magnified it. Can any of that damage be undone? It seems like an experiment worth trying.

Labels: Blogging, Flea Medical Malpractice Case

(In Part 1, I discussed how a plaintiff's attorney discovered the identity of medical blogger Flea, and used it during his medical malpractice trial.)

When this trial ended in settlement many people wanted to know: Was the existence of the blog and the Boston Globe's description of a "Perry Mason" moment a factor in the settlement?

The answer I come up with, after discussing limited facets of the case with plaintiff's attorney Elizabeth Mulvey, is that while I doubt the blog or the Perry Mason moment made a big difference, the reality is that only the jurors would ever know. And they didn't hear all the evidence.

While Mulvey wouldn't discuss the facts of the case -- the agreement is confidential and I doubt either the parents of the boy that died or Flea want to talk about it -- I did learn that there had been five witnesses before the settlement, including Flea and two experts.

The trial started with Flea on the stand. It is a common tactic for the defendant to be called first by the plaintiff's attorney. There was then a break in his testimony after Mulvey had done her direct exam so that the experts could testify, with Flea to return later. (This is not unusual, as scheduling expert witnesses is always a problem unless they are retired.) The blog outing occurred on the fifth day of trial. In addition to more testimony from Flea, there were still likely to be a couple more witnesses, with the defense team having another expert ready that could have testified if the trial continued.

Thus, even if a synopsis of the facts were available by someone, they would likely have been disputed. That's why we have juries to look in the eyes of the witnesses and consider all of the available evidence placed before them. It is difficult for a summary by a newspaper or blogger to fully capture two weeks of trial for an in-depth analysis.

(As to the timing of the settlement, it is not at all unusual to have cases settle mid-trial, after the attorneys can evaluate the evidence. In fact, I've had four medical malpractice cases settle while the jury was deliberating on the verdict.)

And about that "Perry Mason moment?" Mulvey told me that while it was certainly interesting, it hardly amounted to the melodramatic rendering of it by the Boston Globe. Trial attorneys, you see, routinely confront witnesses with prior inconsistent statements. Sometimes it means something to jurors. And other times they shrug it off.

Just a few weeks ago Anne Reed wrote on this very subject at Deliberations, in The Overrated Prior Inconsistent Statement. From that posting, which has many links to original sources:

But are jurors really going to throw out a witness's testimony because of one inconsistency, or even one lie? Think about it. Do you have a co-worker who has lied to you but with whom you still manage to work well? A family member who has lied to you whom you still love? Perhaps you yourself might have told a lie once, long ago? For most of us, the idea of falsus in uno is too simple to be useful in real life. [The latin phrase means that someone who lies about one thing is likely to lie about another, and a jury is therefore permitted to disregard all the testimony of the witness -- ET]

Jurors are often forgiving and practical when a witness lies. That's the conclusion of an empirical study by Jones Day lawyer Richard Stuhan, and trial consultants Melissa Gomez and Daniel Wolfe of TrialGraphix, Inc, collecting data from over 800 mock jurors in "over a dozen states." Stuhan, Gomez, and Wolfe authored an extensive post about their study (and its limitations) at the Drug and Device Law blog, and plan to publish it in full in the April 2007 edition of DRI's For the Defense magazine.

And so, while the confrontation with the blog may have been presented in the Boston Globe as exceptional, it appears that the only exceptional thing was where the prior statement came from.

This article was blasted across the front page a full two weeks after the trial was over. So the guy who wrote it, and the editors that placed it above the fold on the first page, weren't even there.

Tomorrow, my final bit on the trial of Flea. But it really isn't about him. It's about the Boston Globe.

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

(This is a follow-up to Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court. regarding a pediatrician that was live-blogging his own trial. I first discussed the legal ramifications of doing so on May 8, in Medical Malpractice Trial Starting For Med-Blogger)

Were you wondering how Flea was exposed in court and how his blog would be used? So was I. Curiosity got the better of me, since the details weren't in the Boston Globe story from last week.

So I called plaintiff's counsel, Elizabeth Mulvey, of Crowe & Mulvey to find out. She told me she was tipped off to his blog by another attorney. How did the other attorney know? Because Flea had blogged about a subject that Mulvey had spoken on some time back and the other attorney realized that she had the case. Flea had unwittingly given out the identifying information when he discussed her talk. On this cached version of Flea's site, you can see his comments discussing Mulvey on April 28th.

With that information in hand Mulvey scoured his blog for helpful information, much the way any attorney would review writings produced by a witness for the other side. She found a post where Flea referred to Nelson's Pediatrics as the bible of pediatrics. (I have the 11th ed. from 1979 on my own bookshelf.) So she asked him on the witness stand if he considered Nelson's the bible for pediatrics. He said no. Lawyers call that a "prior inconsistent statement" that allows us to confront the witness with the other statement. That meant asking him if he was Flea and confronting him with the blog posting.

This testimony came out during the direct exam of Flea by Mulvey (she called him as her own witness making it "direct" even though he was adverse and it more realistically resembles cross-examination). She did not use the comments about the meetings with jury consultants that I discussed back on May 8th, but then, she still had another opportunity to examine him when his own attorneys were done. The tips he received on how to conduct himself on the witness stand could still have come up.

She never got to that second part of her exam, however, because the case settled. The details are confidential.

Mulvey considered this just another type of prior inconsistent statement. The most frequent use is when deposition testimony deviates from trial testimony. It could also come out if a witness has published an article where the contents of the article differ from the testimony. That it came out on a blog was novel, but the concept was not. (William Childs at TortsProf hit this point on May 31st.)

Tomorrow, more details concerning the trial...

Addendum 6/5/07 - Part 2 now available at this link.

Addendum 6/6/07 -- Flea, The Boston Globe and Morality in Journalism and Blogging

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

I was updating the blog postings on Flea's outing, and was stunned at how many there are...and they continue to pour in and are now expanding beyond the legal and medical blogospheres.

But this particular posting is important for Flea, if he or his friends are reading this: Blog Scandal Hits Home

When I got home I found an email from a friend requesting an urgent referral to a new pediatrician. I emailed back and said, oh, so-and-so loves her pediatrician, ask her. My friend then replied, yeah, so-and-so has the SAME one and is also looking for a new one - see sordid story on front page of Boston Globe. So I read the story, and there was that blogger scandal again. I couldn't believe it - a Law and Order type of story in my friends' lives...

...Judging from my friends' responses, I imagine his entire practice scurrying to jump ship. It's scary to think that someone who had some good qualities as a clinician, judging from what my friends told me, and from some stuff he has written for his practice's website, might have his career ruined by poor judgment (or perhaps hubris? or a false sense of security behind a pseudonym?) about where and how to vent his frustrations / indignation / contempt / stress.

With the Globe's decision to blast Flea's name on the front page, Flea has, as I see it, two choices as his practice that will no doubt undergo a substantial drop-off in the coming months:

1. Crawl under a rock and hide;
2. Find a good crisis manager to help go public by saying:

• It was really stupid to blog this stuff in real time;
• I should not have let my distress at being sued get the better of me in my writings;
  
• This was a tragic case that not only devastated the parents of the child, but has caused me endless sleepless nights due to the death of a patient. But it settled due to my blogging and not my medical conduct;
• Do not say anything that, in any way, requires a response from the parents;
• Read Kevin, M.D.'s post on the importantance of your Google reputation, and start a plan to take back your name so that this story doesn't pop up on the first page of Google three years from now when new patients pop your name into the search box.
  

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

The outing of Flea's real identity in the Boston Globe is now generating an immense amount of comment in the blogosphere. (For those new to the story, see Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court): So I'd like to add a few additional observations and links:

First, I learned of Flea's outing yesterday when Jonathan Saltzman of The Boston Globe called me for comment. To say I was stunned would be an understatement. While I had discussed the risks of his posting confidential trial prep work back on May 8th, I told Saltzman I was surprised to see it actually happen.

Second, I wrote this morning's lengthy post last night, and then held it for today, since the story belonged to the Globe, and not me.

Third, I picked up a hard copy of the Globe. The story is front page, above the fold. Which is to say, his patients and colleagues will all see it.

Fourth, the Globe story said the outing was on May 14th, and the settlement was the 15th. Flea took down his blog in totality on the 16th. So the blog came down after it was all over.

Fifth, while I hadn't appreciated it before, the Flea photo from his blog (with guitar, above) is apparently that of the musician by the same name. (Hat tip to Michael Grant.)

Addendum -- Sixth, Saltzman informed me during our conversation yesterday that Flea's attorneys were unaware of the blog, which means of course, that Flea didn't tell them and he wasn't prepped by his attorneys on the subject on how to deal with it if it should come up.

Below are some of the medical and legal blogs that have already picked up various parts of this story today:

• The Flea Settles Down (Simple Justice)
• Flea (Kevin, M.D.)
• Blogging Defendant Blows Defense (Volokh Conspiracy)
  
• Flea Collared (Odd Time Signatures)
• Cross-examination reveals the defendant was that anonymous blogger who's been writing about the trial (Althouse)
• A Law Blog First? Defendant Blogs His Own Trial (WSJ Law Blog)
• Flea's Fall Sobering For Other Bloggers (White Coat Notes - Boston Globe)
• Fleased (symtym)
• Days of Fame (symtym)
  
• Flea Collared (Drums and Whistles)
• An attorney weighs in on Flea’s malpractice settlement (Notes from Dr. RW)
• Un(settling) End In The Case Of The Disappearing Flea (Dr. J's House Calls)
• Rich People Blog Too (The Hub)
• Flea Outed In Court (Universal Health)
• Flea, flea as fast as you can (Legal Antics)
• Updates, May 31 (Overlawyered)
• Stand By Your Flea (Health Business Blog)
  

There will be others and I will try to update later...

More:

• Flea: Another Argument for Tort Reform? (Health Care BS)
• Kevin M.D.: Flea (GruntDoc)
• Blogging MD Defendant Exposed (ZiefBrief)
  
• "Aw Sh*t!": My Reaction to the Flea Debacle (Musings of a Dinosaur)
• Paging Dr. Flea (MetaFilter)
  
• On Flea (OnThePharm)
• Flea Revealed in Boston Newspaper (Ami Chopine)
• Dr. Flea Blogged His Malpractice Trial, Settles When Outed (Clinical Cases and Images)
• The Flea Flicker: Risks of (anonymous) blogging (Health Care Law Blog)
• Flea-ting Thoughts (Massachusetts Liberal)
• A Fool for a Client (Discourse.net)
• More Blogging Thoughts (Evil HR Lady)
• Dr. Strangeblog (The Paperback Museum)
• (Yet) Another Object Lesson in Blogging Biting Back (Infinity Ranch)
• For Med-Mal Doc, Blogging Proves Bad Medicine (Law.Com Blog Network)
• The strange case of the arrogant physician, and related musings on the propriety of physician blogging and other online behavior (HealthBlawg)
• A Small Thought About Flea (TortsProf)
  

Somehow, I don't think we have seen the end of this...

Addendum 6/1/07 -- More:

• Details unfold about Flea’s day in court (Notes from Dr. RW)
• The Doctors' Revenge (plus the Flea Feeding Fenzy) (Simple Justice)
• Doctor Flea exposed in court (The Angry Dad)
• Elsewhere: Of Fleas, Blogs, and Client Control (Kentucky Law Review)
• The Flea Saga and WOM (The Independent Urologist)
• More On Litigants Blogging (The Divorce Law Journal)
• Is there a flea in the house? (Manic Mommies)
• Blog Obsession (MotherThoughts)
• Malpractice Suit Defendant Unmasked as Anonymous Blogger; Settles Case (The Blog Herald)
• Flea Bites (QuizLaw)
• The Blogocratic Oath: First, Do No Harm (The Opinionated Marketers)
• Blogging Doctor Reveals Secret Identity Under Oath (PR Communications)
• Blogging Your Own Trial - Transparency is the Verdict (VisInsights)
• Blog Scandal Hits Home (Notes of an Anesthesioboist)
• Self-immolation on the witness chair via the power of the internet (BeldarBlog)
• Blogging malpractice defendant exposed : Case settled (Real Lawyers Have Blogs)
• Blogging Your Court Case Is A Very Bad Idea! (Feminist Law Professors)
• The Blog as Public Record (Magnosticism)
• Don't Blog Your Court Appearances (PsychCentral)

Addendum 6/4/07 -- More:

• The Malpractice Cast Net (Scalpel)
• Random Thoughts (Catscanman)
• "Flea" Bite (Not My Second Opinion)
• Could Have Lied (Blogborygmi)
• There's Flea! And the news is not good (ScienceBlogs)
• The Dr. [] / "Flea" anonymous blog outing - Blogging HARMS! (Infothought Blog)
• A Flea Squashed: Bloggers Sweat After Court Case (Bostonist)
• Why Didn't Anyone Warn Flea? (I'm a blogaholic)
• Flea Outed and Settles Malpractice Case (OBGYN Tips)
• Do I feel bad (?) (The BFC Computing Weblog)
• Some thoughts on Flea (Tales From the Womb)
• About Dr. Flea (Cathy's Place to blog)
• "Flea" Proves to be His Own Biggest Pest in Boston Personal Injury Lawsuit (The Injury Blog)
  
• Pediatric Grand Rounds 2:4 (Adventures of an awesome (sometimes) mother)
• Dr. Flea, Pediatrician blogs his own med-mal suit, learns the perils (The blawgraphy)
• On Flea and Fishing (Dr. Wes)

Last Addendum: After interviewing plaintiff's counsel, I wrote three more posts on the subject:

• Deconstructing the Trial of Flea - Part 1
• Deconstructing the Trial of Flea - Part 2
• Flea, The Boston Globe and Morality in Journalism and Blogging

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

A Boston pediatrician blogging under the pseudonym Flea has been outed. It happened in court. During cross-examination. On his own medical malpractice trial. And now it is the top story in the Boston Globe.

Flea had written several posts about the upcoming trial, a wrongful death case involving a child. In the process he discussed his private prep sessions with his attorney, explaining how he had been coached to answer questions to be appealing to the jury, how he had been videotaped, and what materials his lawyers told him to read.

After seeing this, I wrote of the extraordinary risks of such disclosures, even under cover of pseudonymity. (See, Medical Malpractice Trial Starting For Med-Blogger.) The issues I raised, in the event plaintiffs' counsel discovered his blog, ran to the risks of losing his attorney-client privilege for all such communications. If this happened, he could be cross-examined on how he was coached by his defense team to act in front of the jury and the advice they gave him. He also ran he risk of his own insurance carrier trying to disclaim coverage if it thought he was hindering the defense.

Shortly after, he took down three blog postings (Med-Blogger, On Trial For Malpractice, Takes Down Trial Posts), asserting he was superstitious and didn't want to jinx things that were going well. Then he took down the entire blog, without explanation (Med-Blogger Flea, Previously Live-Blogging His Trial, Takes Down Entire Site).

Dozens of medical and legal bloggers had commented on the live-blogging of the trial, as well as the subsequent, unexplained disappearance of the popular, award-winning doctor-writer.

Well, as revealed in today's Boston Globe, it appears that plaintiff's counsel did find out about the blog. And at the end of the day when Flea was on the witness stand in "a Perry Mason moment," the questions came:

Do you have a medical blog?
Are you Flea?

As per the Boston Globe article, court adjourned for the day, and the case quickly settled.

Why did he do it? While I don't know Flea, and have no connection to him other than these postings, my best guess was this: He loved writing and this was great material. The subject was, simply put, irresistible. I know that I found his activity fascinating, not only for its raw content, but also for the walking-a-high-wire-without-a-net danger of what he was doing. As seen in the links below, I clearly wasn't the only one rubbernecking.

How many people took note of this ongoing saga? These links help tell the tale (and there are others), both for the uniqueness of a doctor live-blogging his own malpractice trial and also due to the huge popularity of the blogger:

• Liveblogging a malpractice trial (Overlawyered);
• Getting Inside a Medical Malpractice Case (Law.com Blog Network - Carolyn Elefant)
• MD Blogs Own Med-Mal Trial (Law.com Blog Network - Robert Ambrogi)
  
• Jury Notes From Elsewhere, May 11: Trial through the defendant's eyes (Deliberations)
• Through the Eyes of a Flea (Simple Justice)
• Flea's trial blogging catches a lawyer's attention (Kevin, M.D.)
• Blogging Your Own Med Mal Trial (TortsProf)
• Medical Malpractice Defense Lawyers' Nightmare Client (Hans Poppe, with archived Flea posts:
• Flea Takes A Screen Test (April 24th)
  
• What do malpractice juries care about (April 26th)
  
• Flea on Trial-Day One, Jury Selection (May 9th)
  
• The Flea Circus (symtym)
• On the blogs: malpractice trial prep (Boston Globe Blog, White Coat Notes)
  
• Black Wednesday: A dark day for the medical blogosphere (Kevin, M.D.)
  
• The Flea Bite (or lessons learned from angry fans) (Simple Justice)
  
• Medical Bloggers: Held to a Privacy Double Standard? (Dr. Wes)
• FEAR NOT: Picking Up The Gauntlet In The Medical Blogosphere (Dr. J's House Calls)
• Medical Blogging and the Tragedy of the Commons (Stranger Than You Can Imagine)
• Dr. Flea Disappears (Doctor Anonymous)
  
• One Injustice After Another (Moof)
• The Dearth of Physician Bloggers (intueri: to contemplate)
  
• Flea Gone (Scalpel)
• The Death of a Flea (Tales from the Emergency Room)
  
• Where Have All The Medical Bloggers Gone? (From Medskool)
  
• Farewell and Goodluck (Tales from Health Records)
• What happened to Flea? (Scanman)
• In Memorandum (Highlight Health)
• 2 Medical Blogs Shut Down (Revolution Health)
  
• Dark Days in the Medical Blogosphere (MSSP Nexus Blog)
• The "Butterflying" of the Medical Blogosphere (Mexico Medical Student)
• I am a blogger. I am a doctor (Musings of a Distractible Mind)
• What is Happening to Medical Blogs (Tales from the Womb)
• The Medical Blogosphere (It's all about the walls)

Finally, this case was a tragedy for two parents, and a nightmare for a doctor. If the parents had lost the trial, it would have added yet another layer of extraordinary emotional trauma. If Flea lost, it would no doubt have been emotionally difficult for him. A settlement allows each to move on with their lives without the additional fallout of a jury's verdict. The parents might feel they had their day in court and that the settlement was based on the merits, while Flea might feel it was based on his own carelessness with his writing and the concerns a jury might not like the way his legal team was trying to manipulate the jury. Neither won and neither lost. And sometimes that is all for the best.

Addendum: Here is a cached version of Flea's old site before it was taken down. (Hat tip to Hub Blog)

2nd Addendum: More on Doctor "Flea" Being Outed On The Witness Stand


(Eric Turkewitz is a personal injury attorney in New York)

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

While doing some quick research on lawyer's pay-per-click ads for "Avandia Attorneys" I noticed something odd:

My own post from yesterday on the subject came up on Google's first page of its natural search.

Now my office isn't looking to handle such cases, but if my modest little posting appears there it certainly speaks to the enormous marketing potential of these forums. This is a good example of a subject Kevin O'Keefe writes of often.

Labels: Blogging

Pediatrician and med-blogger Flea, who had been chronicling his own medical malpractice trial regarding the death of an infant, has apparently taken down his site. Not just a few posts as he did last week, but the whole thing. My initial thoughts on the risks of his losing the privileged nature of his contact with his attorneys and the risks to his own insurance coverage if his pseudonymous identity were revealed, were first published in Medical Malpractice Trial Starting For Med-Blogger. He was believed to be the first person to live-blog his own trial.

Best guess from here? He told his attorneys what he was doing and their heads exploded due to the risks I had discussed. But win, lose or settle, I think we'll see his award-winning blog reappear when the litigation is over.

On a side note, posts can still be seen in my RSS reader, probably due to his having deleted them instead of "modifying" them. Had he modified (by simply by substituting anything else), I think that all RSS readers and caches would then have been updated to show only the new content. Something to think about if any of us wants to delete a post for any reason.

Addendum 5/31/07 - Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

Medical blogger Flea has removed blog postings for his own medical malpractice trial. The blog had generated great interest throughout the medical and legal blogospheres, as he became the first person to live-blog his own trial. I had covered the subject in Medical Malpractice Trial Starting For Med-Blogger, listing the posts and their subject areas. The postings had also been cited at Overlawyered, Kevin, M.D., Law.com , Deliberations and Simple Justice, among other places.

The pseudonymous Flea -- a pediatrician in the northeast currently in the midst of a wrongful death case regarding a child -- ran risks with what he was doing, as he had publicly discussed the private counsel he had with his legal team. This opened the door to questions on that otherwise privileged subject at trial if his identity was discovered by plaintiff's counsel, and potentially could jeopardize his insurance coverage if his carrier thought this hindered the defense of the action. His postings have included, among other things, advice on what to read, and a prep session where he had been taped and given a copy of the tape for review.

While the most recent postings about the trial are now gone, the older ones remain. Inexplicably, these remain regarding prep sessions with a trial advisor and contact with his lawyer: What Do Malpractice Juries Care About?, Flea Takes a Screen Test and Flea Gets His Syllabus.

There is no explanation from Flea as to why at least three of his recent postings came down, though it is reasonable to conclude that he had second thoughts on the subject and sought legal advice. I don't understand why, however, if some of them came down, the others did not. Frankly, I can't think of any lawyer allowing a client to take such risks, though it was fascinating to watch.

The questions are, has he been cross-examined yet (jury selection was two days ago and he was likely the first witness), and did plaintiff's counsel know about the blog?

My own guess...we'll see an explanation from Flea when the trial is over.

Addendum: Flea has now explained that he took down the three posts about the trial because he is superstitious, and doesn't want to jinx what he sees as a good game in progress. (for him).

Second Addendum (5/16/07): The site was taken down completely on May 15, 2007, without explanation.

Third Addendum (5/31/07) Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

Flea is a pediatrician. One of Flea's little patient's died. Flea was sued.

Except that Flea is not just a doctor, but a blogger. An award winning blogger.

So he's doing something a bit different than other doctors that have been sued. Flea (photo at right) is blogging his experience as it happens, including contacts with his own attorneys, attorney-client privilege be damned. Make that a lot different than other doctors.

In what may be the most compelling and extraordinary story being played out in either the legal or medical blogospheres, the pseudonymous doctor discusses his experiences and emotions in depositions and trial preparation, including some advice and communications with his defense team.

In opening the door to the legal sanctuary however -- that is, the special place where all contacts with one's lawyers are protected -- he is running two giant risks:

First, if his cover is blown and plaintiff's counsel finds out he has been blogging, he can be cross-examined on those contacts and advice that he wrote about, for the privilege disappears when the substance is discussed publicly. Second, by opening that door, he runs the danger of his insurance carrier disclaiming against him in the event of a verdict on behalf of the plaintiff, on the claim that discussing his trial prep hindered the defense. The man is, if nothing else, a risk-taker in that regard.

His decision to walk this high-wire without a net brings us to a third issue: If plaintiff's counsel finds out about the blog, should it be used at trial? A lawyer's gut reaction may be yes, in order to claim to the jury that what they are seeing is a well-rehearsed act.

But if the risk is that the insurance carrier uses it as an excuse to disclaim on a plaintiff's verdict, it may be entirely counterproductive. In this sense, Flea shares a common goal with his nemesis: They both want the insurance company standing there in case of a plaintiff's verdict.

With jury selection starting tomorrow, I expect we will see quite a bit more on the subject. Some of the posts on Flea's experiences, starting with the most recent:

• Dress Rehearsal (Flea spends two hours on the phone with his lawyer, and gives us some details);
  
• A Witness for the Prosecution (regarding the testimony of another doctor expected at trial);
• In Her Own Words (Flea Googles plaintiff's counsel);
• What Do Malpractice Juries Care About (Flea opens the door on the attorney-client privilege to write about his trial prep);
• Flea Takes A Screen Test (describing his experiences being videotaped in a mock trial setting);
• Flea Gets His Syllabus (He lets us know what his lawyer told him to read);
• Another Day At The Office (Flea's 2nd post on being deposed);
• God Was Watching Out For You Today (The 1st of 2 posts on being deposed);
• Something About The Law (The 2nd of two posts on the Complaint);
• Negligent, Careless and Unskillful (About the Complaint)
  

Addendum, 5/11/07 - Flea has now taken down the three most recent posts. See: Med-Blogger, On Trial For Malpractice, Takes Down Trial Posts

Second Addendum (5/16/07): The site was taken down completely on May 15, 2007, without explanation.

Third Addendum (5/31/07) Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court


(Eric Turkewitz is a personal injury attorney in New York)

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

Brett Trout, of the Blawg IT-Internet Patent, Trademark and Copyright Issues Blog, took us for a tour of a motorcycle race track in Blawg Review #106. For an exhilarating look at the blawgosphere, it is worth checking out.

Meanwhile, the three psychiatrists at Shrink Rap, took us for an altogether different tour on Grand Rounds (Blawg Review's medblogger equivalent), this one of the brain as they wind their way through the gray matter. (When you do medical malpractice law, reading medical blogs comes with the turf.) For one of the more interesting uses of technology, check out their linkable brain.

As for me, while those folks spent their weekends working their creative journeys, I took an altogether different, and more pedestrian, trip with one of my kids.

Labels: Blogging, Running

As Blawg Review #103 ran the bases yesterday with a weekly recap of the posts in the legal blogosphere, some of my brothers and I hit Shea Stadium for the home opener (that's me on the left).

Completely missing from the recap, however, is a discussion of how the upper reaches of Shea can be the coldest place on earth in April (though beating the Phillies 11-5 helped).

We're talkin' baseball
Kluzuski Campanella
Talkin' baseball
The man and Bobby Fella
The Scooter, the Barber, and the Newc
They knew them all from Boston to Dubuque
Especially Willie, Mickey, and the Duke.

Labels: Blogging, Odds and Ends

Chubb, which claims to insure 90% of the law firms listed in The American Lawyer's AM Law 200, seems to have tripped over itself in first trying to stop its insured from blogging, and is now trying to draw a distinction between "informational" and "advisory" blogs.

What the difference exactly is, escapes me. And that is because there are an unlimited number of shades of gray within this constantly morphing space.

Here are the definitions they are trying to create in their own bumbling way:

• An informational blog presents information or offers a forum for discussing issues in a neutral, unbiased way. This type of blog offers information similar to that found in an article or presented by an individual in a seminar -- informational blogs do not provide advice to a specific individual on a unique matter. Typically, these blogs pose a minimal level of risk from Chubb's underwriting perspective.

• In an advisory blog, however, a law firm offers advice. By its nature, then, it increases the risk of a malpractice lawsuit against the firm. An advisory blog can potentially establish an attorney-client relationship, possibly bypassing such safeguards as determining the suitability of a potential client and checking for possible conflicts of interest. As always, Chubb's underwriters will evaluate each submission on its own merits.

Now in one recent post of mine I discussed the tough legal issues that any individual claimant faced in regard to the tainted pet food in the news. Is that "informational" or "advisory?" (I would call it my opinion.) The news story is certainly a unique matter.

And if I decide to rip into Chubb for trying to draw a line that doesn't really exist, does that mean I am not discussing it in a neutral and unbiased way and therefore the blog is now outside their coverage? If I mock them for failing to have counsel review this new policy and I advise them to get it reviewed -- for no attorneys in their right mind would ever try to draw such a line, so it stands to reason it wasn't reviewed -- is my posting now advisory instead of informational? If I strongly suggest it was foolish to do this, are my comments advisory or informational?

And how an "advisory blog" establishes an attorney-client relationship, by the way, is beyond me. To establish a relationship one needs to have one-to-one communications, not just an opinion shouted to the world. (I wonder if Chubb considers that comment of mine informational or advisory, regardless of whether it is right or wrong?)

In trying to define the legal blogosphere and place these ever-changing formats into neat categories, Chubb is creating a problem by trying to graft static definitions onto a dynamic beast.

If this is the place that Chubb wants to go, then law bloggers who have them as their insurer need to bring their business elsewhere.

The only thing Chubb seems to have done right here is place a bulls-eye on its back for ridicule.

(hat tip to Kevin O'Keefe at LexBlog, who also has a copy of the Chubb press release)
Addendum: Rush Nigut has a great response at Kevin's blog:

Chubb is trying to save face. The company realizes it made a mistake with its blanket denial and the press release is a way to say, "We really didn't mean we wouldn't cover law firms that have blogs . . . you must have misunderstood us."

2nd Addendum: Robert Ambrogi at the Law.Com Blog Network chips in more with: Insurer: 'We Do Cover Blogs, Sort Of'

Labels: Blogging, Insurance Industry

What, exactly was the school district of New Rochelle, NY thinking?

It appears that the policy for dropping children off a school bus is to simply leave them, even if no parent is there to meet them. We're not talking teens, we're talking as young as five.

While the school district will now re-visit that policy in light of the news story that broke, it makes one wonder exactly such a thing could even occur.

So during the same week that Chubb goes over the top trying to stop a law firm from blogging because of too much imagined risk, a school district is found to have not even considered risk for its youngest students. A little common sense on both ends seems to be in order.

Labels: Blogging, Interesting Cases in the News

From today's New York Sun:

An Orthodox Jewish blogger is asking a judge to protect her anonymity from a Long Island elected official who has gone to court to identity the blogger.

The elected official, Pamela Greenbaum, a member of the school board for Lawrence, L.I., asked a state judge last month to force Google to identify the writer behind a popular Web log for the orthodox community in the Five Towns area.

The blog, orthomom.blogspot.com, featured a posting in January critical of Ms. Greenbaum's position regarding the use by yeshiva students of public school facilities. In guest comments to the postings, Ms. Greenbaum has been called a "bigot." [link via Judicial Reports]

This seems to be a suit that goes nowhere, if being called a "bigot" is the sole issue, since that seems to be an opinion. Additional facts were not available at the New York Sun site (but are at links below).

It is worth pointing out here that anonymous speech is well protected under the First Amendment in accordance with the Supreme Court's ruling in McIntyre v. Ohio Elections Commission. The country has a long history of anonymous speech in the form of books and pamphlets, including the Federalist Papers first published as "Publius." Check out footnotes 4 and 6 of the Stevens majority opinion for some anonymous writings later attributed to historic figures.

Additional links:

• Greenbaum v. Google, (Public Citizen);
• Motion to Quash Subpoena, (Public Citizen);
• All the Orthomon Lawsuit News, (Canonist);
  
• Orthomon;
• Electronic Frontier Foundation

Labels: Blogging, First Amendment

From New York defense attorney Scott Greenfield entitled Simple Justice. (Mug shot at right.)

If you get arrested for drug dealing or murder (It was an accident!), he's the guy to turn to.

And he's a helluva writer.

Labels: Blogging, Odds and Ends

From my fellow New York blogger, Tony Colleluori, who practices criminal law out on Long Island. His blog, That Lawyer Dude, has The Land of the Sheep and the Home of the Frightened today regarding his recent trip to the Capitol.

Labels: Blogging, Odds and Ends