There are few things more beloved by lawyers than equivocation.  Leave some wiggle room and nobody, but nobody, can ever call you out.  On the other hand, it’s the first thing our eye goes to, the wiggle words that take an assertion that might otherwise mean something and reduce it to meaninglessness.  Better to be covered than matter.

As the social media matures, assuming mature is the right word given the divergent paths it has taken between substance, marketing and those who desperately pray that can pretend to be substantive while simultaneously shilling their stuff and prays no one notices, concerns are arising about the affect of their public utterances. 

An issue arose when Eric Turkewitz at  New York Personal Injury Law Blog wrote about how he was going to delete his old twits in advance of trial so that jurors who might research him wouldn’t be put off by his politics.

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

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

When it comes to anything that might impair the success of a client’s cause, why take the chance indeed?  For those aren’t familiar with Turk’s twits, I can’t recall anything remotely resembling anything risky, but Turk’s concern for the welfare of his client, above his concern for the critical importance of anything he might have had to say on social media, is admirable. The client comes first. Always. The value of his twits for posterity pales in comparison.

Yet, the lawyer’s natural aversion to risk can take this concern to other, broader places, which was fairly clear in a remarkably revealing post by a Philly personal injury lawyer, Max Kennerly.  From the title, The Real Risks of Writing A Legal Blog, which suggests that the risks Max perceives are “real” while what anyone else says isn’t, to the backhanded compliment to his bloggy-friend, Jim Dedman, the post reflects the tenuous connection between the desire to promote oneself and natural risk aversion.

Over at the North Carolina Law Blog, Jim Dedman, proprietor of Abnormal Use (and friend of this blog) writes about a perceived risk of writing a law blog:  that your opponents may take the things you write and use them against you in court.

I agree with Jim entirely that there isn’t much reason to worry about that, not least because of the low odds that you will actually say something your opponent could really use against you in court.  I believe in what I do as a lawyer and so my thoughts expressed on this blog are usually consistent with the arguments I make in court. 

While Max writes that he agrees entirely with Jim, he obviously doesn’t, or there would be no need to write at all, or at worst no need to write any further.  Certainly, there would be no need to write about the “real risks” if his friend Jim had just done so.  Rather, this was the mere lead in to a rationalization of the concerns Jim discusses that justify Max’s approach.  In other words, everyone is wrong but Max, who being a lover of lists, proceeds to rationalize why he knows best and use this as a mechanism to indirectly confront his demons.

3.         You could receive attention.  Assuming you’re writing a blog worth reading, at some point, people will pay attention to you, but attention isn’t the unmitigated blessing marketers make it out to be.  There are three types of attention that can impose a significant drain on your time and attention.

*  *  * 

Second, you will be criticized.  After I wrote about the software license contained with Apple’s new iBooks Author Program, a law student who writes for an Apple fan site immediately started hurling criticism at me, including questioning how I could have passed the Bar.  When Apple swiftly revised its licensing agreement to correct the problem that I and others had pointed out, the Apple fan returned to tell me that this somehow validated every criticism he had of my post.  Go figure.  He is one of about six billion people who have written a blog, forum post, email, or tweet explaining how wrong I am about something.  If you don’t have a thick skin for that sort of thing, then blogging might not be for you.

Third, you will be misinterpreted frequently.  After I wrote a post about how pregnant women should have more legal protections in the workplace, someone promptly tweeted that I had set back women’s liberation efforts by 50 years.  I have received countless hostile comments from people who obviously didn’t read my post, they just read the title and used their imagination to fill in the rest, and so wanted to tell me how wrong I was for the things they imagined that I wrote.  It’s frustrating and there’s nothing I can do about it. Again, if you want to write a blog with reading, you need to have a thick skin.

What makes this a fascinating lesson is that most of you won’t have the slightest clue who Max Kennerly is or have read anything he’s posted on his blog.  Max does comment here occasionally, but his comments usually aren’t well-received by criminal defense lawyers because of his excess of political zeal and lack of grasp of criminal law.  It’s not that Max has offered insightful comments. He has. It’s just that his antagonistic comments haven’t won him any friends.

Max has long suffered from the lack of interest he’s generated at home, and the antagonism he’s endured elsewhere.  He argues for his relevance, placing himself squarely in that perfect center point of being the only one who does it “right,” and can’t understand why others don’t appreciate his genius.

As a result, Max has made himself an excellent poster-boy for risk aversion and its impact on the blawgosphere.  It’s not that his points about attention aren’t true. If a blog gets no attention, then the complaint is why no one reads.  If a blog gets attention, it may well be negative as well as positive.  Max has tried desperately to find that perfect spot where he can get attention, and yet avoid the criticism and misinterpretation.  He suffers from the Goldilocks syndrome: not too loud, not too soft, just right.

The lesson from Max is that there is no such place, where you reach millions of fans, and they all adore you.  There is no way to avoid the risk associated with the expression of ideas, but with the absence of ideas, there’s no reason for anyone to bother with you.  If you can’t hack the negative, then you are going to be miserable.  If your fear of the negative impairs the expression of any thought, then it won’t matter as no one will read you.

Max describes the the absence of the expression of meaningful ideas in terms of being boring, a gross over-simplification.  Boring (or interesting, for that matter) is the outcome of expressed ideas, not the cause.  It’s what’s produced by lawyers who may want to say something meaningful but are afraid of the potential for negative consequences.  They may equivocate. They may bury their ideas. They may start out with the intention of taking a stand, and end up hiding in a corner. 

Max tries to argue that there is some middle ground, which coincidentally is where he thinks he sits, that provides that perfect balance for lawyers.

As I’ve written before in discussing the types of legal blogs, in my humble opinion there’s nothing wrong with writing blogs for an audience of non-lawyers Googling around for information on something. You don’t need to write for lawyers (like Kevin does) or shout from the rooftops the failings of the law and the legal profession (as Scott does), but the writer of a legal blog must take some pride and joy in what they do. 

When he says “there’s nothing wrong with writing blogs for an audience of non-lawyers,” that’s code for marketing, thereby validating himself.  Yet Max soon came to appreciate that his tepid marketing posts drew no interests, and started getting a bit riskier by coming close to expressing ideas.  This resulted in criticism and misinterpretation, which he now explains can’t be avoided and requires a thick skin (which he must have, since he’s still blogging).

The take-away, however, is quite the opposite of Max’s “real risks.”  There is no La-Z-Boy atop the fence of equivocation that will allow you to come perilously close to acheiving marketing balance without exposing oneself to the negativity of criticism or misinterpretation.  Say something even close to real and someone is going to want to spank you for it.  Say nothing and it won’t matter.

There is another characteristic of lawyers worth mentioning, aside from risk aversion and the love of equivocation.  That’s guts.  Some lawyers have stood at the forefront of bold ideas, speaking bluntly and clearly about the things that matter to them, to the profession and to society, even when they are controversial or unpopular.  There may be a thousand voices who will say mean things about them, but those lawyers who have the guts to speak out won’t care.

And that lays out your choices.  Be tepid and get criticized. Be bold and get criticized.  Or say nothing and don’t exist.  Your call.