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Bloggers Impacting the World of Litigation 120

DaveKleiman writes "Will bloggers change the world of Supreme Court litigation by inspecting published opinions? Rachel C. Lee has an interesting take on the question in the Stanford Law Review, Ex Parte Blogging: the Legal Ethics of Supreme Court Advocacy In the Internet Era (PDF). She begins the review with: 'Lawyers have been arguing their cases before the Supreme Court for over two centuries, while the phenomenon of legal blogs is perhaps a decade old. Yet legal blogs cannot be dismissed as merely a sideshow novelty — they are already capable of having a substantial impact on Supreme Court litigation.' The review hits on many key points both for and against the use of blogging, but ultimately concludes that members of the Court and their staff will have to refrain from reading any blog post relating to a pending case, no matter who it is written by. It's even possible we'll get carefully drafted rules preventing blogging by attorneys." It's going to be tough to make any such prohibition work. After all, Groklaw's PJ is not an attorney.
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Bloggers Impacting the World of Litigation

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  • So instead... (Score:4, Insightful)

    by Jaysyn ( 203771 ) on Friday May 08, 2009 @09:46AM (#27875791) Homepage Journal

    .. the law lobby will try to make it illegal for the "proles" to discuss case law.

  • by eldavojohn ( 898314 ) * <eldavojohn&gmail,com> on Friday May 08, 2009 @09:48AM (#27875825) Journal
    I haven't read all of the 39 pages of this report but from what I gather, I don't see why this should be any different than scientific blogging (or, in pre-internet terms, armchair science).

    Example: I read Bryan William Jones' blog [utah.edu]. It sometimes has scientific topics although rarely anything new. Let's say Dr. Jones makes some important discovery in a field he is not an expert in ... like bird behavior. And it's a significant contribution to that field. Maybe he realizes what he's discovered and maybe he doesn't know the intricacies of bird behavior so he blogs about it.

    Is this a peer reviewed published piece of research? No. Is it important to the field? It might be. Should he get credit? Yes. Should bird behaviorists be required to read every blog on the internet looking for a breakthrough? No. Could it go unnoticed? Yes. Will this happen often? Highly unlikely. Will Dr. Jones rare footage of the endangered African Upside-down tufted titmouse's in flight mating dance be a hit to the general public who like little birdies? Probably.

    I see lawyering in a similar light. You expect the laywers and judges involved in a case to be completely on top of everything and knowledgable about everything (try to suppress laughter, please). But of course someone like Groklaw's PJ could bust out a piece of work putting more of the puzzle together than any of the inept dinosaurs running the show. Similar questions and answers may follow this scenario as in the case of the blogging scientist. Most importantly, that this position may be popular with the public but it's not a part of the case unless someone involved takes note and makes it so and puts it into the spotlight (or Bird Behavioral Journal in the former example).

    That said, there is one serious flaw in this analogy. Science is usually correct or wrong. And usually easily decided (upon reflection, perhaps I should have used something more hotly contested like quantum theory instead of a bird dance). Law, as we all know here, is not only many shades of gray but also something that many people on the internet get emotional about (which is a good thing) and think they are experts in (which is a bad thing). I have not read the legal minutiae of my state or even country. I know the popular things and I extrapolate on them--almost always erroneously.

    In short, I would opine that it would be a violation of free speech to outlaw it and dangerous if not stupid to make it legally important. There is a reason for the BAR exam. If you have not passed that, you probably just want to be a citizen on a soapbox instead of a legal target.

    Blogging is by and large a disposable medium that can be morphed into important things by the appropriate people. It is satisfying to express one's ideas like I am doing right now. Leave it that way.
  • by mc1138 ( 718275 ) on Friday May 08, 2009 @09:51AM (#27875855) Homepage
    While this isn't the case for all blogs, there are a vast amount that aren't tied into sponsors, or wheels inside wheels that would prevent them for really exposing activities as such. There are too many cautious media moguls out there that don't want to hurt their base that news because a glossed over sort of event. People are afraid to try and expose something and be wrong, ie Dan Rather and the Bush Vietnam debacle. Yes its good to verify information, but at the same time sometimes one needs to have a little guts when trying to expose the truth.
  • absurd (Score:2, Insightful)

    by Anonymous Coward on Friday May 08, 2009 @09:54AM (#27875885)

    This is absurd. Supreme Court Justices are allowed to do their own research. Traditionally, this has included everything from cases (even cases from foreign jurisdictions) to law review articles. I don't think that anyone can pretend that law review articles have never taken sides in a Supreme Court controversy.

    Why should blogs be treated any differently? I see no reason. I suspect this author wants to take active steps to maintain the influence of law reviews. It's not terribly surprising. The influence of law reviews has been on the decline for *years*.

  • Re:So instead... (Score:4, Insightful)

    by eldavojohn ( 898314 ) * <eldavojohn&gmail,com> on Friday May 08, 2009 @09:54AM (#27875887) Journal

    .. the law lobby will try to make it illegal for the "proles" to discuss case law.

    Uh, I don't think the Stanford Law Review was advocating that. From the lengthy PDF they do try analyze (if you can call it that) what would happen under different types of reform. They list them as such:

    • Do Nothing
    • Do Too Much
    • Regulate Parties and Amici
    • An Open Invitation to Blog
    • Regulate the Court

    I think the most outlandish thing they are proposing is stated as wildly outlandish (Do Too Much):

    Instead of doing nothing, a code of ethics could theoretically attempt to do a great deal. Regulation could be draconian: no online discussion of pending Supreme Court cases by any licensed attorney. Such a rule would obviously go too far. It would impoverish public debate regarding the Supreme Court's work, and it would be wildly unconstitutional.

    Not making it illegal, just regulating it heavily.

  • Why not? (Score:5, Insightful)

    by mister_playboy ( 1474163 ) on Friday May 08, 2009 @09:55AM (#27875889)

    Even the most prideful members of /. go about saying "IANAL" almost out of sheer reflex any more. I'm tired of hearing it.

    Lawyers have really managed to convince the population at large that they their art is magic... when in fact they ultimately do something directly analogous to what I did in high school speech: do some research and present an opinion in a persuasive manner.

    Persuasiveness is much more important than having good evidence in both cases. Hardly something that makes one into a socially unquestionable demigod.

  • by fuzzyfuzzyfungus ( 1223518 ) on Friday May 08, 2009 @09:58AM (#27875949) Journal
    I'm not sure that the use of blogs is different in anything but(possibly) degree from what has happened since pretty much the beginning of law.

    It is (barring the replacement of statutes with strong-AI lawbots) impossible to write law that is self interpreting. Interpretation is inevitable. And, given the way humans are wired, culture and people outside the case writing about law, legal theory, and the case itself, will inevitably influence that interpretation.

    Blogs are different than law journals, in that they aren't subject to peer review or anything(though, a lot of law blogs are published under real names, and putting your reputation on the line has an effect); but they are rather similar to other sources of input on lawyers and judges(half remembered newspaper clips, life experiences, conversations with colleagues and friends, and so forth). Blogs widen the circle of informal discourse a bit, just as email has a broader reach than snail mail; but it doesn't strike me as a genuinely novel development.

    For that reason(and because I'm leery of interference with speech in general) the notion of restricting blogs seems both absurd and dangerous. Obviously, being on the internet doesn't free you from the usual rules of confidentiality, good taste, and so forth; but it is no more dangerous than other venues of informal discourse, which aren't restricted.
  • Re:Why not? (Score:5, Insightful)

    by langelgjm ( 860756 ) on Friday May 08, 2009 @10:06AM (#27876051) Journal

    While there will probably be some lawyer who will post a contradictory comment, here's my take:

    I've taken a general IP law course at one of the top law schools in the country. (I won't say the exact ranking to leave some mystery.) The thing that struck me is that you really need no specific background to understand this stuff. If my kids ever decide they want to go to law school, I'm not going to let them be taken in by people who say they should be doing a specific pre-law track. It's nonsense.

    One of my friends did classics and linguistics as her undergrad, and got a full ride to a first-tier law school. On the other hand, if you want to do patent law, you need a technical background - science or engineering undergraduate degree (at least if you want to do the patent bar and be able to practice).

    Really, if you can read and comprehend, you can understand the material. The challenge is that there is a bulk of it - now that I've taken this IP law class, I understand all the basic pitfalls, but since I don't know civil procedure, I have no idea exactly how lawsuits are filed, etc. But I have a feeling that if I got a civil procedure textbook, I'd be able to read and understand it without much trouble.

  • by dwheeler ( 321049 ) on Friday May 08, 2009 @10:08AM (#27876079) Homepage Journal

    The idea that "judges must not read blogs" is absurdly extreme. We don't forbid judges from reading newspapers; why are bloggers suddenly called out for special mistreatment? It's true that we don't let juries look at stuff because they're not familiar with the details of what is or is not permissible evidence, but judges do have such training.

    In fact, the article opens with Kennedy v. Louisiana, where blogging was a tremendous help. In this case, the Supreme Court's ruling was based on wrong information, and the bloggers pointed this mistake out. Kudos to the authors for being brave enough to point to this as an example. In any case, it shows that bloggers can have a very positive effect on court outcomes, by calling attention to critical mistakes in the court's information.

    I want to see people more involved in political discourse. If they know that their discussions can't possibly have any effect, then they're less likely to have such discourse. Heck, I think that's why we have such low voter turnout... too many people think "my vote can't make any difference".

    I do agree that there's a risk of hearing more of one side than another, but the direct presentations to judges along with research that the judges themselves do should help counter that. The other extremes seem worse than the problem they're trying to cure.

  • by Locke2005 ( 849178 ) on Friday May 08, 2009 @10:08AM (#27876083)
    Why should a blog be treated any differently than an amicus curiae [wikipedia.org] brief? People are entitled to have and express their opinions, and judges have the right to not read them. Personally, I think crowdsourcing legal arguments would make for better law; there would be fewer missed points in arguments, and therefore fewer bad precedents. Finally, I don't see how telling bloggers to STFU could be viewed as anything but a violation of the First Amendment. What may be valid is the blocking of jurors' access to blogs, as jurors aren't allowed access to any evidence not approved by the judge.
  • by Alaren ( 682568 ) on Friday May 08, 2009 @10:10AM (#27876097)

    You make some good points, but you focus on the problem from the perspective of the average blogger--while the Article is about blogging from the perspective of the courts.

    The reason this is seen as a problem is that liberalism (small "l," brought to us courtesy of Hobbes and Locke) originated as a Natural Law philosophy, and it was assumed that decisions were best made by "neutral arbiters." Appellate judges or clerks or in some cases attorneys who read blogs may be (gasp!) influenced by viewpoints that are not rooted in the record.

    Of course, this happens all the time, in other ways. Positivism has largely supplanted naturalism in our jurisprudence, but we've never adapted our court systems accordingly (for various reasons, not all of them bad). Contemporary western philosophy--though, importantly, not contemporary lay thought on legal practice--scoffs at the idea of a "neutral arbiter."

    This doesn't mean judges should actively seek input from every available source--that would be disaster. The fact that "neutral" is impossible doesn't mean it isn't a worthy goal, and the judiciary should pursue it so far as they're able without becoming so neutral as to stop caring about justice.

    But that's the real question here--not whether your average blogger can write legally important things, but whether an appellate judge should be reading case material that isn't in the record. The obvious answer is "no," so the question then becomes, "how do we make this happen in an information age?" Because it would seem silly to tell a SCOTUS justice, "you can no longer read the Volokh conspiracy, just in case something relevant is said" or whatever; after all, judges will have read "The Tempting of America" and "There's No Such Thing As Free Speech" and everything in-between, and these will doubtless influence them even though they don't directly address particular cases (usually). But it would also be illegal to tell Professor Volokh & crew, "you can no longer blog because you're attorneys."

    It's an interesting problem and an interesting article, but the tech angle is strictly utilitarian; this is a problem of legal ethics.

  • Re:Why not? (Score:4, Insightful)

    by Anonymous Coward on Friday May 08, 2009 @10:15AM (#27876183)

    if someone reasonably believes you're offering legal advice, and she follows your advice and loses some legal right or money, she can sue you for legal malpractice.

    And yet, if your kind would say "tough luck toots, yer an idiot" to the idiots, it wouldn't be a problem. Instead, you say "well, this case looks tough, it'll be $200 an hour and I'll probably need 80 hours over the next two days to get started, and that's before it even goes to trial".

  • by Red Flayer ( 890720 ) on Friday May 08, 2009 @10:18AM (#27876217) Journal

    I do agree that there's a risk of hearing more of one side than another, but the direct presentations to judges along with research that the judges themselves do should help counter that. The other extremes seem worse than the problem they're trying to cure.

    The problem is that the judge is then introducing "testimony" (for lack of a better word) into the case. And if that testimony helps one side, the other side does not have the chance to present information or analysis that is counter to the testimony.

    Furthmore, deep pockets could easily outweigh good analysis. Farming blog posts in support of your side of a case should have no bearing on the outcome of an appeal; unfortunately, that may become a real issue. It's simply the court of public opinion, except digital -- and quite possibly, easier to manipulate than general public opinion.

  • Re:So instead... (Score:2, Insightful)

    by postbigbang ( 761081 ) on Friday May 08, 2009 @10:25AM (#27876305)

    What would blatant, even anarchistic openness do that's bad? We're a nation of critics now. Whether seemingly entitled by degree or simply desire, we all get Free Assembly and Free Speech.

    Where atty/client relationships are concerned, there are already many constraints as to what can be publicly published. The court of public opinion has always had a voice, and that voice has been listened to and acknowledged. That acknowledgement might be bending or swaying to those opinions, or in many cases (thank heavens) not.

    The discipline enforced on SCOTA and other judiciary is important. Bring in cameras. Do YouTube when/where privacy isn't compromised. Talk about it. Blog it. Blogging is a lot like writing a column; it's opinion. Journalists will (hopefully) adhere to a different set of ethics that among other things, requires balance.

    If you're a judge, your opinion's already published. And there are reams of law books and sources of online information that track the courts. What I'd like to see: if you litigate, and settle out of court, I'd like to know how you settled. It would keep the courts a lot cleaner and bereft of mindless litigation. If you take it to court, you must tell the court of your settlement to the complaint filed.

  • Re:Why not? (Score:5, Insightful)

    by xouumalperxe ( 815707 ) on Friday May 08, 2009 @10:42AM (#27876489)

    Well, I hate lawyers more than the next guy but they do more than that. I mean, do you know your state's law code (those books are huge)? Do you know all case histories on a particular subject? Do you have access to every single one of these cases? Do you spend 40+ hours a week reading this stuff? Is being misinformed dangerous when you're talking about the law?

    See it this way: how much studying does it take to have a really good grasp of the .NET framework, or the J2EE class library, or whatever other big programming environment you care to mention? A programmer's work is, in its fundamentals, much the same as a lawyer's: spend all week applying researching how to achieve your goals or minimize your losses, writing up your results, and they both heavily favour a mixture of experience (or knowledge) and talent expressing yourself -- be it in code or in speech. Both juries and compilers can be tricked into accepting things that are really really wrong, at times. There's nothing special about a lawyer's work in and of itself, the importance is the subject matter.

    Should a lawyer or judge really be held accountable for not taking every average citizen's two cents into account for a case? I think not. I am arguing for the "do nothing, ex parte blogging is fine the way it is" scenario presented in the paper. I am definitely against people being unable to discuss cases and pro-free speech but we are almost always massively uninformed so leave it as nothing more than blogging.

    The biggest virtue of this stance (and why I also favour it) is that I'm free to make up my own mind about who to read and who to ignore.

  • by erroneus ( 253617 ) on Friday May 08, 2009 @10:54AM (#27876603) Homepage

    For once, the Libertarian Party truly had the Democratic and Republican parties over a barrel when they failed to file their candidates before the deadline in Texas. Neither Obama nor McCain should have been on the official ballots in Texas because they failed to meet the deadline for filing. With quite literally no legal explanation, the motion was denied. No reason for the denial was offered. It was just "no."

    Had it been an independent or a third party, we know what the outcome would have been and there would have been explanations citing rule of law and procedure. It would be interesting to see if this judge had ruled on similar cases concerning ballots and the like and to have their outcomes compared. This is something a great blogger might be able to pull off.

  • Re:Minor Nitpick (Score:3, Insightful)

    by Tanktalus ( 794810 ) on Friday May 08, 2009 @11:13AM (#27876783) Journal

    It just wouldn't be lucrative anymore ;-)

  • by AndersOSU ( 873247 ) on Friday May 08, 2009 @11:18AM (#27876847)

    The argument is that if blogs are available to the judge, they shouldn't be treated differently from amicus briefs - who's timing, rigor, and content are very tightly controlled, and an opportunity to respond is presented - unlike blog posts.

10.0 times 0.1 is hardly ever 1.0.