Thanks to Colin O’Keefe and the entire LXBN TV crew for the interviews and coverage of Avvocating 2012. Check out the complete LexBlog Avvocating Wrap Up (including 25 video interviews). Of all the interviews, here is the one my mom likes the best:
Be sure to visit the LXBN wrap-up page. It is chocked full of excellent content. Those guys did some serious work between Thursday and Monday morning.
Much of the news these days about social media and the law revolves around jurors’ improper use of social platforms. There have already been two reported cases in 2012 that dealt with potential misconduct by jurors.
In People v. Wilson, a New York appellate court upheld the trial court’s refusal to set aside a verdict based on a juror’s Facebook posting that simply informed her friends that she was serving on a jury:
The court conducted a thorough hearing, and we find no basis for disturbing its credibility determinations. The juror made Facebook postings that merely advised her friends that she was on a jury, but did not discuss the case in any way. Unfortunately, some of her friends made foolish replies relating to trials in general that defendant characterizes as “inflammatory.” However, the juror testified unequivocally that she was not affected by these comments, that she did not discuss the case with anyone during the trial, and that she had decided the case impartially, based only on the evidence.
People v. Wilson, — N.Y.S.2d —, 2012 WL 787553, at *2 (N.Y.A.D. 1 Dept.) (March 13, 2012). The Wilson court got it right; it should not be “misconduct” to simply post or tweet: “Hey, I’m on jury duty!” The case is interesting, however, because it points out the impact that comments may have. It appears the defense argued that the inflammatory comments in response to the innocuous update might have resulted in misconduct. In this case, the juror confirmed that the comments did not affect her partiality. But I imagine that, more and more, we will see “misconduct” cases based not only on what the juror said but what the juror’s friends or followers said in response.
In another recent case, Khoury v. ConAgra Foods, Inc., the Missouri Court of Appeals upheld the trial court’s decision to dismiss an empanelled juror. The trial court characterized its decision to remove the juror as “a very close call” but, ultimately, ConAgra was able to convince the trial court and the Missouri Court of Appeals that dismissal was appropriate; ”counsel for ConAgra informed the trial court that counsel had found, separate and apart from litigation history information, that Juror Piedimonte had a Facebook page and was ‘a prolific poster for anti-corporation, organic foods.’ ConAgra moved for a mistrial or, in the alternative, to strike Juror Piedimonte because of his alleged misconduct during voir dire, claiming he intentionally failed to disclose information that affected his ability to be a fair and impartial juror.” Khoury v. ConAgra Foods, Inc., 2012 WL 694827, at *1 (Mo. Ct. App. March 6, 2012).
Subsequent to the jury being empanelled, but prior to opening statements, ConAgra presented the trial court with copies of material from Juror Piedimonte’s Facebook page and personal blog allegedly relating to “corporate criminals, credit rating agencies, economic warfare, socialism,” and moved for a mistrial or, in the alternative, to strike Juror Piedimonte. The trial court conducted an examination of Juror Piedimonte to determine the existence of his alleged bias toward corporations.
Id. at *7. Both the trial court and the appellate court recognized that ”[r]eplacement of a juror with an alternate is an appropriate remedy when there is a possibility of bias.” Id. at 8. Accordingly, replacement of this particular juror was appropriate given the circumstances.
The Khoury case is interesting because it doesn’t directly deal with misconduct by the juror during the trial. Rather, ConAgra used the juror’s Facebook page and blog to show that the juror had been less than truthful during voir dire and that he could not be impartial. This was enough to get the juror knocked off the panel (although it was a very close call).
Jurors and social media are often like oil and water; they just don’t mix well. I am glad that the Wilson court reached the right result. There is no harm from a juror saying “I’m currently serving.” Other courts should follow this example.
The Khoury decision is dicier. I’m sure that, with thorough search efforts and techniques, any lawyer could come up with enough “impeachment” evidence to successfully challenge a juror during voir dire (or, as was the case here, point out that the juror was less than truthful during voir dire — do you remember what your status update was two years ago?). Fortunately, the court(s) recognized that this was a “close” call. Courts should be hesitant to disqualify jurors based on general statements made on social media sites, particularly where the statements pre-date or are unrelated to the trial for which the juror may sit. In Khoury, the facts were unique and the court(s) recognized that. Hopefully, other courts won’t fall further down this slippery slope.
When was the last time your law firm issued a press release? Is the answer “never”? If it is, well, it shouldn’t be. The answer should be “recently”.
Let me take a minute and make my journalism professors proud (B.A., Journalism, 2001) and write about how a press/news release can be beneficial–for you and your law firm–in today’s social media world. (I will admit at outset that I have been forced to give up my AP Style Guide in favor of Bluebook, but I still have a bright orange Chicago Manual of Style right next to my desk.)
First, a quick example of why/how press releases are important. Back in November ’11, I did an interview with a CNN reporter on the issue of whether Facebook posts can get you fired. Now, if you Google “Tyson Snow Can Facebook Get You Fired”, Google will return almost 2,000,000 hits. Click the following link to see:
Tyson Snow Can Facebook Get You Fired
The point is that while your firm’s stylish newsletters, blogs, and clever/informative tweets are helping build your credibility, you need to realize that your clients and, more importantly, the public at large are aware that the content is coming in an unfiltered form from you. They understand it is advertising (in the same way that you understand that this blog is, in a way, self-promotional advertising). Now, while no one really trusts the “media”, people generally recognize the media as a more “independent” source of information than the originator of information (at least the “recognized” media). After all, we rely on the media to actually follow up on information and present a somewhat objective story concerning the subject matter. And that is where well-worded press release comes in.
When I wrote for a newspaper, we received numerous press releases. Oddly, they often came via fax (despite the prevalent use of email even back then). In today’s world, I assume that media and news outlets receive numerous (or even ridiculous) numbers (did I really just say “numerous numbers”?) of news releases on a daily basis. Often, the releases were thrown together and poorly written (like a TRO application). If the press release presented an interesting topic or identified an entertaining event, I would typically follow up with a phone call or email. Too my surprise, my attempts at following up often went unanswered. One thing you can be sure of: any self-respecting media outlet is not going to simply print your press release. So, how about a little advice.
You want your news release to sound like, well, news. But at the same time, you want it to present you and your firm in a positive light. Most importantly, you want to craft it in a way that gets a reporter’s attention so that the reporter either (a) wants to follow up on the story or (b) is willing to accept your phone call or email when you (most assuredly) follow up after sending the release. Because you will follow up. The release should read like a news story (http://en.wikipedia.org/wiki/Inverted_pyramid) and should be fairly objective. The more objective your news release is, the more likely an overburdened reporter / editor is to quote from (or possibly even adopt in wholesale, subject to the point I made above) what you have to say. Make sure you have a catchy title. Keep your sentences short. Write in an easy, conversational tone. In other words, actually do what your legal writing professors taught you (not what you “picked up” once you got to “the firm”).
Right now you are probably asking yourself why you are reading about press releases on a site about social media. Don’t lose sight of the prize. We are not talking about getting an article circulated around your city. We are talking about an article that ends up on an independent media outlet’s website, an article that will likely receive several comments from readers, be indexed by Google / Bing News, result in possible links from topic-specific blogs, etc. Who knows? I am pretty sure that this is the process that led to my interview with CNN. With social media, your possible exposure only increases: ReTweets, Facebook Likes, or even one of those infamous “did you hear about this?!?” emails. The point is an article in the paper or on a media outlet website, even a small blurb, is no longer just an article in the paper–it is “news” from a “news” source. It is everywhere. And that type of news will always be (much) more widely disseminated than your “news”letter.
One additional point of consideration. Using press releases can help you build relationships with the local media. If you present several interesting stories (or cases) to your local beat writer, he or she will more likely to listen each time you come calling. Use your contacts and connections wisely. If you help them they will help you. Even better, if you help them look good, they will return the favor.
Maybe you should consider putting down your Bluebook every once in a while and picking up an AP Style Guide…
I often am asked whether law firms should have an official blog or blogs (notice the intentional use of “blog” instead of “blawg” — I’m not a big fan of “blawg” — so sue me). I think this is an excellent and interesting question. Without a doubt, lawyers should be blogging but should your law firm put its stamp of approval on the endeavor and agree that the “blog” represents its official statements. The answer to that question is yes. Well, the answer is yes assuming you have lawyers who are willing to blog, capable of providing relevant information, and competent enough that you are not going to have to utilize a multi-level screening process to review each blog post before it goes it. Of course, there plenty of other factors to consider to, most importantly, as discussed below, whether your attorneys are willing to stand by while your firm makes a hostile takeover of a blog they may have spent years building. But let’s take a look at what firms are currently doing.
In a somewhat dated post (at this point), our good friend Adrian Dayton put together a list of blogs associated with Am Law 100 firms. Browsing through that list, it is clear that there are plenty of blogs associated with the biggest firms in the world. But as you click on each of the links, you will notice something interesting. Many of the blogs appear on pages that are clearly distinct from the “sponsoring firm’s” website. Indeed, oftentimes, even among the Am Law 100, the blogs are actually run by lawyers from one of the Am Law 100 firms rather than the firms themselves.
There are, of course, always exceptions. And, in my mind, these exceptions are good. For example, Littler Mendelson takes great pride in its firm-sponsored blogs. The firm even dedicates a page to the Littler Blogs. More significantly, Littler includes a prominent link to its blogs front and center on its homepage. There are plenty of other examples. Sheppard Mullin, Dorsey & Whitney, and Reed Smith all publish numerous blogs and all of the blogs are “official” blogs of the respective firms. To these firms, I offer my commendations. Not only do they provide numerous blogs on a variety of subjects, they prominently link to their blogs in order to make them easily accessible to users and visitors. (I can’t, however, vouch for the content as I haven’t read any of them.)
So, what’s the hold up? Why don’t we see official firm blogs on every firm website? Nearly every reasonably sized firm has some lawyer that is blogging on legal-related topics. Why aren’t these lawyers doing it as part of a firm-sponsored blog? Any such blog would certainly add credibility to the firm just as it adds credibility to the lawyer (which is likely why the lawyer started it in the first place). The blog will make your firm’s website more valuable and, at the same time, draw more potential clients to the firm’s home turf. Given the benefits associated with firm-sponsored blogs, why is it that so many legal-related blogs remain “unaffiliated,” so to speak, with their firms?
In my mind, the answer is easy. And it is entirely understandable. When a lawyer takes affirmative steps to start up a blog, create a following, and build credibility, that lawyer wants to maintain that blog and that goodwill wherever the “winds of change” might take him or her. If an employment lawyer blogged about employment law, the lawyer would want to continue to blog about employment law regardless of where that lawyer worked. As lawyers move from firm to firm and job to job, they want to keep their clients and they also want to keep their followings. You can’t do this if your blog is a “firm” blog.
So, law firms. You want blogs and you need them. But don’t expect your highly successful blogging attorneys to take their highly success blogs and slap your firm’s branding all over them. If you want your firm to have success blogs, you (the firm) need to start the blog and then assign attorneys to fill that sucker with content. You need to do what Littler, Sheppard Mullin, Dorsey & Whitney, and Reed Smith have done. Each of those firms has established blogs within the respective firm’s website. Obviously, each of those firms has assigned or afforded the opportunity to publish on the blog to its attorneys. Credit your attorneys for their work on your blogs (just as you used to credit them for work on your newsletters).
Ultimately, I expect that the majority of highly-successful, highly-visited blogs will remain unaffiliated. Sure, they are published by lawyers associated with firms and they usually include links to the firms. But those links are quickly and easily changed when that particular blogger moves on. Is it a question of loyalty to the firm? Maybe. Is it a question of fit? Oftentimes. Is it an issue of allowing a firm to step in and take credit (and reap the benefits) of countless hours of work (that didn’t show up in the billed, unbilled, pro bono, or other columns of the time sheets that the partners get every month), probably.
It’s an easy thing to fix. Start your blogs. Run them through your website. And have your attorneys publish posts as part of their job. Problem solved. Congratulations, you now have a firm-sponsored blog! Just don’t expect it to draw the traffic that the independent bloggers have been getting for several years now.
Agree? Disagree? That is what the comments are for.
A friend pointed me in the direction of an interesting article over at http://jonathanfields.com about whether someone else’s comments, on your blog, can land you in court. Interesting question and Jonathon doesn’t provide an answer but he does provide an interesting scenario.
In many blogging platforms, anyone can comment without any moderation. The owner of the blog often has no control over who comments, what they say, or the manner in which they say it. The blogger does not control the truth of the matter or whether it is libelous.
But what about blogs such as Social Media, Esq., where comments are moderated? When you leave a comment on one of my posts, it enters a queue and I get an email informing me that I need to approve or disallow a particular comment. By approving and publishing a false, inflammatory, or libelous comment, have I opened myself up to liability? Most certainly, choosing to publish the comment counts as “publication” for purposes of libel law. See Am. Jur. 2d Libel § 241. But bloggers can find solace in a 2004 decision from the Appellate Court of Illinois:
However, a republisher cannot be held liable unless the plaintiff establishes by clear and convincing evidence that the statement was published with actual malice, that is, with knowledge that the statement was false or with reckless disregard as to whether it was false.
Brennan v. Kadner, 814 N.E.2d 951, 959 (Ill. App. Ct. 2004). Be careful though, republishers of libelous statements cannot escape liability by claiming they are simply republishing the libelous statement of someone else. Moreover, “the republisher is subject to liability even if he or she expresses disbelief in the republished statement.” Am. Jur. 2d Libel § 241. Of course, you should still be careful with what you let onto your blog. Freedom of speech and expression is great. Remember that, as a blogger, you have a right to exercise that right too.
Thanks to Jonathan Field’s “Can Someone Else’s Comment Land You in Court?” post for giving me a research topic for the afternoon!