Do Rankings on Sites Like Avvo Really Matter?

Posted on February 11, 2012 by Tyson Snow

I recently published a blog post over on Avvo’s Lawyernomics Blog on the topic of whether lawyer rankings on sites such as Avvo or Martindale Hubbell really matter. So that there is no confusion, I am a regular blogger on Avvo’s Lawyernomics Blog and will be presenting at Avvo’s 2012 Avvocating Conference in Seattle.

But let me get to the nuts and the bolts of it. Yes, your Avvo (or similar rating) does matter. The post describes our attempt at finding local counsel in Colorado and how one of my associates “choose” between to seemingly equally qualified lawyers based on their Avvo numbers. I found this significant because this particular associate did not know that I was a guest blogger for Avvo or that I was going to be speaking at one of their events.

I merely asked the associate to find some potential attorneys to serve as local counsel for us. He brought back several and then recommended a particular attorney because that lawyer had a much higher rating on Avvo than the others. It was enough to convince me. We retained that lawyer as local counsel and he has been great to work with.

So, returning to the ultimate question, do these types of ratings and rankings actually matter? Yes. They do. At least to some (myself and my associate included).

And, as a final note, I cannot emphasize enough the importance of having client testimonials and peer endorsements. Not only do people looking for lawyers read these, but lawyers looking for lawyers read them too. That reminds me, I need to send out some more requests to clients and peers to provide testimonials and endorsements on Avvo and LinkedIn. Any press may be good press; but good press is good press.

Who Owns Your LinkedIn Account? Before PhoneDog, there was Eagle v. Edcomm.

Posted on January 28, 2012 by Tyson Snow

I recently wrote about Who Owns Your Twitter Account (based on the now infamous PhoneDog case). But there is another case out there to consider when evaluating ownership of social media accounts: Eagle v. Morgan, et al., Civil Action No. 11-4303 (E.D.Pa. December 22, 2011) (“Edcomm“). The facts, for purposes of this post, are fairly straightforward.

Plaintiff, Linda Eagle, founded Edcomm, Inc., in 1987 to provide financial services and training. “In 2008, Dr. Eagle established an account on LinkedIn, which is a professional network on the Internet.” Eagle subsequently sold Edcomm and was involuntarily terminated. The new owners of Edcomm, knowing the password to Eagle’s LinkedIn account, logged in and changed the password (so Eagle could not access it). The new Edcomm owners altered Eagle’s LinkedIn account so that:

individuals searching for Dr. Eagle were routed to a LinkedIn page featuring Ms. Morgan’s [Interim CEO] name and photograph, but Dr. Eagle’s honors and awards, recommendations, and connections.

Of course, within three weeks, Eagle was able to regain control of her LinkedIn account, which creates the controversy we are interested in discussing: does Eagle or Edcomm own the account?

A little more procedural history: Edcomm, apparently unhappy with the deal, subsequently brought suit claiming securities fraud, fraudulent inducement, common law fraud, breach of contract, breach of the covenant of good faith and fair dealing, and other common law claims and demands for injunctions, declaratory relief, and indemnification. Eagle fired back with her own suit alleging 11 different causes of action:

(1) violation of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030(a)(2)(C); (2) violation of the CFAA, 18 U.S.C. § 1030(a)(5)(C); (3) violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A); (4) unauthorized use of name in violation of 42 Pa.C.S. § 8316; (5) invasion of privacy by misappropriation of identity; (6) misappropriation of publicity; (7) identity theft under 42 Pa.C.S. § 8315; (8) conversion; (9) tortious interference with contract; (10) civil conspiracy; and (11) civil aiding and abetting.

As expected, Edcomm counterclaimed. Significantly, the counterclaim alleged that while under Eagle’s management, Edcomm implemented a policy requiring Edcomm’s employees to create and maintain LinkedIn accounts. These employees were required to: (a) utilize their Edcomm email address for LinkedIn accounts; (b) utilize a specific form template, created and approved by Edcomm, for their description of Edcomm, work history, and professional activities, as well as photographs taken by a professional photographer hired by Edcomm; (c) contain links to Edcomm’s website on LinkedIn accounts and the Banker’s Academy webpage, as well as Edcomm’s telephone number; and (d) utilize Edcomm’s template for replying to individuals through LinkedIn.

More significantly:

According to the Counterclaim, for all departing employees, Edcomm, at the direction of management, requested and retrieved Edcomm-related LinkedIn connections and content from the departing employees’ accounts.

Edcomm alleged Eagle misappropriated the LinkedIn account when she regained access and control and refused to return it to Edcomm. Eagle moved to dismiss but the trial court refused to dismiss Edcomm’s claim that Eagle had misappropriated the LinkedIn account by re-taking possession of it. Bound by the allegations of the counterclaim, the court recognized:

Edcomm argues that it was the rightful owner of Edcomm’s number and the LinkedIn account connections. Edcomm prepared and distribution marketing materials containing its number, and Edcomm’s personnel developed, maintained, and furthered the LinkedIn Account for Edcomm’s sole benefit and use. Although Dr. Eagle knew of Edcomm’s proprietary interest in these items, she nonetheless misappropriated both Edcomm’s telephone number and her LinkedIn account connections for her own use.

The court concluded that, under Pennsylvania common law, Edcomm had, at a minimum, stated a claim for misappropriation of an idea:

The Counterclaim Complaint expressly alleges that, with respect to the LinkedIn account connections and content, “Edcomm personnel, not Dr. Eagle, developed and maintained all connections and much of the content on the LinkedIn Account, actions that were taken solely at Edcomm’s expense and exclusively for its own benefit.” While Plaintiff argues that Edcomm fails to allege facts that would show that it made a substantial investment of time, effort, and money into creating the cell phone number or LinkedIn account, Edcomm counters that its employees developed the accounts and maintained the connections, which are the route through which Edcomm contacts instructors and specific personnel within its clients. As these conflicting allegations create an issue of fact requiring further discovery, the Court must deny the Motion for Judgment on the Pleadings as to the misappropriation counterclaim.

(Emphasis added). Note that this was a ruling on a motion to dismiss and not a ruling on the merits. In allowing Edcomm’s “misappropriation of ideas” claim to proceed, the trial court acknowledged that Edcomm sufficiently alleged it had made a substantial investment of time, effort and money into developing Eagle’s LinkedIn account and thus that it was wrong for Eagle to then access and take the account away from the company after her termination.

Why you care: Ultimately, the court held that Eagle’s LinkedIn account may not belong to her even though it is her name that appears on the account. This is an interesting development, particularly given the difference between “individual” and “business / entity” accounts on LinkedIn. Can a company legally claim an individual’s LinkedIn account if that account was created solely for transacting and developing company business? This case may be the first in deciding that issue (although, as stated above, at this stage, no decisions on the merits have been made.

Disclaimer: As recognized by other commentators, this decision may raise more questions than it actually answers:

Thus, it seems that under the right circumstances, a LinkedIn account may not actually belong to the individual whose name appears on the account’s home page, and whose professional history and accomplishments are detailed in the account’s profile. This is an interesting development, but one that may not withstand further scrutiny, given the Court’s acceptance, without much discussion, of the notion that a LinkedIn account is a “novel” idea worthy of protection. The viability of this decision may also be impacted by the LinkedIn user agreement, which states that the “user” is the owner of the account. The Court did not address this fact in its decision, and in this case, if the company’s allegations prove to be true, the company may well be deemed to be the account “user.”

http://nysbar.com/blogs/LENY/2012/01/so_you_think_you_own_your_link.html

The facts of the case are interesting and quite specific. If this sounds like an issue that interests you, I definitely recommend you read the entire opinion. I have provided a courtesy copy [here].

I will use this as an opportunity to again point out the importance of social media policies. My guess is that, in determining that the account may belong to Edcomm, the court gave strong consideration to the fact that Edcomm had a policy of requiring employees to: (a) utilize their Edcomm email address for LinkedIn accounts; (b) utilize a specific form template, created and approved by Edcomm, for their description of Edcomm, work history, and professional activities, as well as photographs taken by a professional photographer hired by Edcomm; (c) contain links to Edcomm’s website on LinkedIn accounts and the Banker’s Academy webpage, as well as Edcomm’s telephone number; and (d) utilize Edcomm’s template for replying to individuals through LinkedIn. Add the fact that Edcomm required departing employees to “return” Edcomm-related “LinkedIn connections and content from the departing employees’ accounts,” and you start to see why a court might see the account as a company asset as opposed to an individual asset.

As I have advised in previous posts, social media policies need to be well thought out and clear. With Edcomm and PhoneDog behind us, my advice remains the same. Employers concerned about maintaining ownership of social media accounts should establish policies stating:

that the business owns the account;
that the employee has no right to use the account after termination of employment;
that the employee must turn over the account upon termination of employment; and
that only the employer is allowed to change account names and settings.

It will be interesting to follow these cases as they progress through the courts.

Download Someone’s Entire Twitter Feed

Posted on January 16, 2012 by Tyson Snow

As you may know, I am frequently a guest blogger over at Avvo.com’s Lawyernomics blog. It is a great resource and I suggest that you check it out. I try to keep my content separate (between here and there) but this information is simply too valuable to too many people; it needs widespread distribution.

So you want to do some real e-discovery? And you want to do it without even sending a discovery request? How about downloading someone’s entire Twitter feed (yes, from the very beginning) for preservation, sorting, and searching. Here’s how:

First, a preliminary step. You need to figure out how many tweets the particular user has made. This is necessary because you will specify the number of tweets you want to download. If someone has tweeted 3,234 times, and you want all 3,234 of those tweets, you will need to know that number. If you simply want the last 1000 tweets or so, just choose how many you would like to get.

Enter the following URL into your browser, replacing “account” with the username and “count” with the number of tweets you want to download: http://twitter.com/statuses/user_timeline/account.xml?count=n

For example, if you wanted to download my last 50 tweets, you would enter (or click on) the following url: http://twitter.com/statuses/user_timeline/tyson_esq.xml?count=50

This will take you to a page that lists the XML code for the past 50 tweets.

Go to “File” or right click, choose “Save As”, and save the .xml file.

This will give you an XML file that is clumsy and hard to read, particularly for those who are not tech savvy. The solution? Open the file in Microsoft Excel or any other spreadsheet software (as an XML table) and off you go. Mess around with the file some and you will soon figure it out. Just remember, if you are going to use this stuff for evidentiary purposes, you will need to take the necessary steps so you can lay foundation for it as needed (document the process, have a paralegal sit in with you so he or she can testify about the process, etc.). And don’t forget that people update their feeds like crazy, so keep tabs on various feeds while your cases proceed.

Facebook’s Memology – Hottest Topics on Facebook in 2011

Posted on January 11, 2012 by Tyson Snow

The folks over at Facebook have created a “Memology” for us. As they describe it, Memology 2011 is “[a] look at what people were talking about on Facebook in 2011.”

Link to the post and you can learn more about the most popular topics and how the Facebook Data Team created this list.

Here is your teaser; the Top 10 Global Topics on Facebook in 2011:

Death of Osama bin Laden
Packers win the Super Bowl
Casey Anthony found not guilty
Charlie Sheen
Death of Steve Jobs
The Royal Wedding
Death of Amy Winehouse
Call of Duty: Modern Warfare 3
Military operations begin in Libya
Hurricane Irene

There is a lot of other interesting information so I would definitely check it out if you get the chance. This doesn’t have much to do with the law but I thought it was worthy of a post anyway:

https://www.facebook.com/facebook?sk=app_271705986210152

Enjoy!

Who Owns Your Twitter Account – the PhoneDog Case

Posted on January 8, 2012 by Tyson Snow

If you purport to blog about social media and the law, and you don’t have a post about the PhoneDog case, it might be time for an update (thus this post). For those who don’t know, PhoneDog is currently in a lawsuit with Noah Kravitz, a former employee, over who owns a twitter account that Kravitz created while he was an employee at PhoneDog.

The New York Times provides an excellent summary of the lawsuit:

A Dispute Over Who Owns a Twitter Account Goes to Court

Many are focused on what the outcome will be. Briefly, I think PhoneDog wins–from what I understand, Kravitz created the account while at PhoneDog, created it in order to perform his job duties for PhoneDog, and used it almost exclusively, if not exclusively, to do exactly what the account was created for: promote PhoneDog and create a following.

The outcome will be interesting and will affect how employers handle similar situations. It will be the first case establishing some sort of precedence concerning who “owns” a social media account, particularly in instances where the account is used by others. Regardless of the outcome, I can guarantee you that social media policies around the country are being revised right now.

As I suggested in an article over at the Association of Certified E-Discovery Specialists (aceds), employers might consider revising their policies to clarify that:

•   that the business owns the account,
•   that the employee has no right to use the account after termination of employment,
•   that the employee must turn over the account upon termination of employment,
• only the employer is allowed to change account names and settings.

The full article, which includes a lot of useful insight from other social media experts can be found at:

Twitter account ownership at issue in San Francisco federal case, as businesses, firms and others brace for fallout

The most interesting thing about this case, for me at least, is the damages calculation. PhoneDog claims it is entitled to $2.50 per follower, per month, for eight months. With Kravitz having approximately 17,000 followers, the “damages” equate to about $340,000. Of course, PhoneDog wants punitive damages as well. The number is completely arbitrary. It makes no sense and I can’t imagine that PhoneDog’s damages model will stand up unless they can somehow offer evidence that supports the crazy notion. I simply don’t see how you can attempt to “value” each individual follower. I know what PhoneDog’s lawyers were doing–they were simply trying to put together a damages figure and explain how they reached it. I just think they did it poorly.

It’s clear that PhoneDog’s damages model is flawed. But it will be interesting to see, assuming PhoneDog wins, how the lawyers (and by lawyers, I mean expert witnesses), attempt to establish the damages that PhoneDog lost as a result of Kravitz’s use of the account while he was no longer an employee. It is definitely a case worth following.

Social Media Use in The Legal Industry [Infographic]:

Posted on January 2, 2012 by Tyson Snow

The good folks over at Martindale Hubbell recently put together an extensive report on the legal industry’s social media use:

The full report examines the use of social media platforms by international law firms and provides some best practice methods to help law firms structure and develop effective social media strategy.

[Download from Here]

More interesting to me, however, is the highly-descriptive infographic designed and compiled based on the results of the report. You can download the infographic at the link listed above or just check it out here:

The conclusion? Most firms are not using social media in an effective manner. There is so much more they could be doing. Check out this informative infographic (pdf):

Social Media Use by Lawyers and Law Firms

Here is a semi-compressed sample:

Free Dockets and Filings

Posted on December 30, 2011 by Tyson Snow

I have a new post up over at Avvo’s Lawyernomics Blog. I point it out here because I think it will be beneficial to my readers (and because there is a lot of good information over at that blog).

The title is: Start Following Dockets & Filings – For Free and the post gives a detailed description of how you can use Justia to keep track of new cases without paying one of those expensive docket tracking services. Here is a quick excerpt:

There is value in knowing what a court’s docket looks like. As you browse Justia’s Dockets & Filings site, you will notice that you can narrow your docket search by a variety of factors; this allows you to quickly focus on the info most valuable to your practice:

* Type of suit (Contract, Tort, Employment, IP, SS, etc.)

* Cases filed in any given federal circuit

* Cases filed by state

* Most recent cases filed

I think this is information worth checking out. It is a great way to find out what is happening with your clients (before they do) and it also gives you a chance to reach out to some people you many know at various companies when you notice that they are now parties to litigation.

Social Media Searches — For Opponents And Clients!

Posted on December 19, 2011 by Tyson Snow

If you haven’t done so yet, be sure to check out my latest post at Avvo’s Lawyernomics Blog (http://lawyernomics.avvo.com). The post emphasizes the importance of doing social media searches on your own clients.

It is very common these days to do social media discovery on your opponents, whether through formal or informal means. Seriously. I wrote a whole post about how to draft a Facebook Discovery Request. But how many of you are doing these same social media searches on your own clients (or potential clients)? This is a quick and easy way to obtain information that you will need at all stages of your engagement. It is also information that you may want when deciding whether to take a particular client or case:

[W]hy do we often turn a blind eye to our own clients? We are skeptical of basically everything, so shouldn’t we be equally skeptical of those who are walking in our doors? Maybe there is inherent loyalty to someone who thinks you are the right man or woman for the job. Maybe work is slow and we need the case regardless of the prominent warts popping up all over the place. Maybe the client is someone we know and, as a result, we feel uncomfortable questioning them about touchy subjects. But if we are going to do our job, we need to know everything about everyone involved, our clients included.

Wouldn’t it be helpful to your decision making process if you came across a Facebook post saying, “Man, I have been to every lawyer in town and no one wants to take this case.” This type of information is readily available. More importantly, this is information that we are already amassing–we are just limiting our research to opponents.

Do quick Google or Bing news search. Look up the company on LinkedIn. Search Twitter for tweets made by or referencing those seeking to retain you. Check out blogs and read online reviews.

Social media is not a tool for digging up dirt on your opponents. It is a tool for digging up dirt (if you are a glass-is-half-empty person). For those of us who see the glass as half full, social media is a tool for digging up information, in all its forms, whether good or bad. As lawyers, we need to know what is going on–on both sides of the “v.”. As I like to say, you do not want to hear about that Facebook post or that tweet for the first time at your client’s deposition.

Our job is to gather information, piece it together into some coherent story, and then apply the law to what we have learned in some persuasive manner. Social media is yet another quiver in your bow to help you achieve this ultimate goal. It will help you gather information and piece things together. On occasion, it will help you apply the law persuasively (send out some questions on Twitter–see what sort of response you get).

Remember, you can (and should) be looking for information on everyone and everything. Make sure you are using all the tools available to you. Especially if they are free.

Social Media, Esq.™

Social Media for Attorneys, Lawyers, and Legal Professionals

Download Someone’s Entire Twitter Feed

Facebook’s Memology – Hottest Topics on Facebook in 2011

Social Media Use in The Legal Industry [Infographic]:

Free Dockets and Filings