During a transitory foray into the land of twitter yesterday, I came across a twit by my dear friend Kevin O’Keefe (who I believe to be Irish), honcho of LexBlog.
Can/should lawyers blog/tweet about pending cases? Just got off phone with reporter on this.
How peculiar, I thought. So I twitted back at him, “Why would a reporter ask you?”
Kevin responded, “I may know a few things on the subject.” I replied, “It would seem that you might be the worst person to ask about such things.”
My interest wasn’t so much piqued by the fact that it was Kevin we’re talking about, as I have faith that Kevin, who practiced law long and hard and who has steadfastly maintained that blawgs are an adjunct to excellence rather than a substitute, would not only give a good soundbite, but appreciate the ethical implications. No, Kevin would do fine.
But the “why” part remains the same. As far as any journalist would know, Kevin is a guy who sells blogs to lawyers for a living. Why would a journalist ask a guy who sells blogs to lawyers about whether blogging/twitting about pending cases is a good idea? If someone is going to write about this very sensitive and problematic subject, where should he turn?
This is what troubled me. Usually, it bothers me when I see some lawprof quoted on the hardscrabble, nitty-gritty reality of the courtroom, because journalists love to beef up their work with the ascribed credibility of law professors who know everything there is to know about the practice of law. And so the journalist writes, the lawprof opines, and those of us who have a clue what’s beneath the surface cringe.
I’ve written much about lawyers so beloved of seeing their names in print, their faces on the tube, that they will run down to the local journalist like Odie the dog, tongue a’waggling, for the chance to offer an opinion. The fact that they know absolutely nothing about the subject or case doesn’t slow them down for a second. The fact that they have absolutely nothing to contribute is irrelevant. Hey, Ma! I’m on TV!!!
Now comes an opportunity to say a few words to the journalists, a pretentious word in itself, about their source of information. Understand that the journalist, foundationally, is there to write, read, report. He is not the expert on the subject at hand, but sufficiently adept at reporting about things unknown to him to earn his pay. And so the reporters turn to others for the color and expertise. Time constraints demand that they cut a 27 minute explanation down to 10 seconds, but that’s perfect give our attention span. Like twitter, the sound bite is an art.
But it similarly requires the journalist to have one additional skill, and a critical one at that. To be capable of identifying a credible source of information as opposed to a warm body with a law degree or a blog. Aye, there’s the rub.
I sent Kevin an email after our twits asking him what he told the reporter. He didn’t respond. He’s probably pissed at me. You know how those Irish guys can be. But I fully expected him to tell me that he explained how lawyers had to be critically careful writing about pending cases, concerned with disclosing confidences, revealing strategies, giving up information that inure to their clients’ detriment. I’ve no doubt that Kevin knows that the client comes first, and said as much.
The question that remains is what kind of reporter would decide to ask a guy who sells blogs to lawyers, rather than ask lawyers who blog, for comment. As Rick Horowitz noted in his twit on the subject, it’s not “[b]ecause there were no lawyers available.”
We often wonder why the public understands so little about what lawyers do or what some case or issue means. One problem is that meaningful answers require more than 10 seconds, even if that’s all the time they have to flesh out the substance of a story after the 3 minute introduction, 3 minute loaded question and 3 minute conclusion. The other problem is that the mouthpiece, the talking head, the expert, may be nothing more than a warm body with some title that gives the appearance that he can offer an opinion.
To that end, have you ever noticed how often the person speaking about a criminal matter is captioned as “former prosecutor?” Anybody want to venture a guess why a lawyer whose voice can be linked to some official government title has more TV cred than someone who does whatever it is that relates to the subject? Kevin?
There’s one thing you can bank on, however. If there’s an open mike and rolling camera, they will never be shy of lawyers willing to talk, whether they’ve got something to say or not.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
The answer to the question “Can/should lawyers blog/tweet about pending cases?” is: Generally, No.
Back in the mid-90s, I did a phone interview about a pending appeal, which I later lost. I can’t prove that the appeal judges or their law clerks read the law news article, but chances are they did.
Nowadays, when I’m asked for an interview, my response is invariably “no comment”, unless opposing counsel has already commented and the public record needs to be set straight. Otherwise, the court of public opinion is fraught with peril and it’s best to make your case in a court of law. There are lawyers who crave the sheen of the media spotlight. I’m more impressed with lawyers who care more about winning trials, than spinning sound bytes.
Not pissed at you Scott. 😉 Just not as fast with the pen or keyboard as you. Had been my intent to email you and blog on it.
It’s not a totally illogical for a reporter to ask me. I have some familiarity with the law having practiced for almost 20 years and have some familiarity with blogs and social media, having advised lawyers on their use for the last 8 years.
But your point is well taken and next time I am asked I may suggest that the reporter give someone practicing today a call. Note that I did mention lawyers who comment on pending cases on their blog. I don’t know if she called them.
What did I tell her? I analogized to talking to the press, which I was called on to do a fair amount in higher profile cases, especially those that involved political causes ending up in court and on appeal.
I reviewed a lawyer’s first obligation being to their client. I explained that a lawyer is ‘supposedly’ unable to say things to the media that would be inadmissable in evidence. I say supposedly because I am see a heck of lot more discussed by lawyers in the press than that which may be admissable later on. I shared that many judges, whether there may a gag order or not, frown on lawyers being too vocal with the press. So doing so can come back to haunt a lawyer and client. I cautioned that social media leaves a ‘printed’ record that lasts forever — though I have had the defense get tapes of me talking to the press about pending legal action and get them transcribed.
I shared my personal views of what I would be doing as a plaintiff’s lawyer today. In cases where public sentiment was a concern of the defendant, I’d use my blog and social media, just as food safety lawyer Bill Marler does. I’d be apt to publish pleadings, defense responses, and relevant info along the way.
I respect Antonin’s viewpoint not to comment to the press and not to ‘try the case’ to the press. That’s the practice of many, if not most, good lawyers. My practice was to not give it a ‘no comment.’ The reason being that I thought the press played a role in democracy and in coverage of our judicial system. Without any comment from lawyers, even explaining certain proceedings etc, we’d leave the press and the public in the dark.
There’s also a role where social media could be used for investigation and informal discovery. I had a case where an insurer covering Southwest Wisconsin farmers and was denying their fire claims, I wanted to find out how many farmers claims were wrongly denied. My discovery was meeting some dead ends so I ran ads in some ‘shopper newspapers’ distributed in rural areas. The info I was looking came. Today I’d be blogging about it and seeking info through the net. In that case the insurer was nice enough to sue me for defamtion – basis was I implied there may be other claims. Their case was dismissed and the decision upheld on mutiple appeals.
Those are just my views. I’m curious what others have to say, including you.
I’ve never had a case involving farmers in southwest Wisconsin. It’s always been a thorn in my side. I knew you would do fine.
Not to give up hope. Maybe one of those farmers will rustle some dairy cows (we didn’t have cattle) and sell them to a manhattan white collar executive with Midwest hobby farm.
From your keyboard to God’s ears.
I always grant the media interviews. I don’t reveal specific strategies but I tow out the “The state attorney’s office is prosecuting the wrong person, and I’m confidant the evidence will convince everyone what I already deeply believe; no way is Scott G guilty of these horrible accusations.”
I used to think maybe I was violating some model rule of ethics or was trying the case in the press, but when the government has spokespeople plugged into every area of media and police lie about your client asking for an attorney or saying “oh he wasn’t a suspect, just a possible witness” (while the detectives use Reid techniques 1-9 to get a bullshit confession) YOU, or I, need to use whatever media is available to made some headway against the gov’t propaganda machine.
Do I sometimes cross the line in my public statements? Yeah probably. But I’ve never had a client complaint about me to the bar, and since I refuse to advertise all my cases are referrals.
TL;DR – I’m not a media whore in general, no facebook page, linked in or whatever, not a member of the ABA or county bar, just the required state and fed bars to practice…but when I think my client’s story is being trashed by pro-state media, I feel it’s my duty to track down my media contacts and give them my client’s side of the story.
Is it unethical? Violate ABA Model Rules, and state bar rules? Conceivably. But I don’t think they can sanction when you’re not lying and it is desired by your client (I never talk unless my client wants the publicity).
Am I wrong to do this?
We can hope that Kevin was only one of multiple sources the reporter was calling, in an effort to get a range of perspectives. But if the reporter called ONLY Kevin, the reporter needs to go back to journalism school
First, this post is about blogging/twitting about your cases, an entirely different matter. I written quite a bit about doing interviews, etc., on ones’ own cases, and about playing talking head.
Second, your reaction may be a bit unsophisticated, but without knowing who you are or what cases you’ve done, it’s impossible to say. There are times that you will use the media (to the extent anyone can use the media), times to speak out and times to shut it down. As Gamso says, the correct answer is always “it depends.”
We all know, unfortunately, that there are many reporters who are lazy and try to get one or two sources to give the impression of exhaustive research, when they really want to be done with research in ten minutes and get done with their writing.
I recall some years ago a call I made to a NYT reporter who had written about my case and totally screwed it up. She hadn’t called me, even though it was my case, and claimed that she tried by no one picked up. She left no message, and called my office at 10 at night, as if someone would be sitting there just in case she called. So she wrote it up, got her facts completely wrong and it went to print in the morning.
I called the day her story came out, and told her the piece was a complete botch. Her response was that it was my fault. If I had explained it to her before she wrote, it wouldn’t have been wrong. And that was the New York Times.
Interesting topic. I had a bad dream the other day that an otherwise well-regarded defense attorney twitted:
“Child sex day: child porn, soliciting minors, sex assault. Different clients all attracted to kids. Tough cases.”