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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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  • by Pig Hogger ( 10379 ) <pig DOT hogger AT gmail DOT com> on Friday May 08, 2009 @10:14AM (#27876167) Journal
    I happen to socially hang around a supreme court justice, with whom I share a hobby.

    In the course of their tenure, they have to carefully shield themselves from the opinion currents (socially, they will remain mostly in their family circles, and avoid big social venues), as they their job requires them to strictly adhere to the Constitution and the jurisprudence (where relevant). As a matter of course, they will avoid reading newspapers articles relating to "their" cases, and blogs naturally fall in this category.

    Whatever discussions we had about his work have been kept generic and mundane, and with the utmost care not to reveal the inner legal workings of the cases; in short, nothing more than what is available to court observers.

  • Re:Why not? (Score:5, Interesting)

    by GrifterCC ( 673360 ) on Friday May 08, 2009 @10:15AM (#27876179)
    IAAL, a plaintiffs' attorney, in fact.

    And actually, I do agree with parent. Most trials' facts are extremely close calls. The obvious cases always--ALWAYS--settle before trial. So, on these extremely close calls, it becomes a matter of persuading the jury or judge that your client's position is more correct.

    What we do isn't magic. My caselaw search engine uses Boolean operators. Law school just teaches you the magic words to look for. We investigate the facts, we investigate the rules (laws, regulations, judicial opinions), and put together an argument for applying them in the way that gets the best result for our clients, within the confines of the ethical rules that govern us.
  • Re:Why not? (Score:5, Interesting)

    by Zordak ( 123132 ) on Friday May 08, 2009 @12:06PM (#27877419) Homepage Journal

    I work for a big firm that does a lot of insurance defense, so I'm ethically obligated to disagree with GrifterCC ;-)

    But really, while the law is not magic, it is very, very complicated. For example, if you're Average Joe, and you get served by Big Out of State Corporation (let's say it's a patent infringement case, and you're sued in the ED Tex.), your first impulse will probably be to shoot off an answer to the court saying, "No, court, they're full of it. This is nothing like their patent."

    Two problems: chances are, you have no idea how patent claims work (because, in fact, most ATTORNEYS have no idea how patent claims work), so you really don't know if you infringe. And even worse, let's say you're running your little business out of Middle of Nowhere, ND, you've never left the state, and all your sales are local. Congratulations! You've just consented to jurisdiction in the great state of Texas! No going back. No do-overs. No appeals. You're going to Marshall.

    Yes, you could have done some research on personal jurisdiction. Yes, you could have read Pennoyer v. Neff and International Shoe and the whole line of cases (after which, you would be even more confused). Yes, you could have gone down to the nearest law school library and done some research on special appearances, but you didn't even know that you needed to.

    You hire a lawyer not because he knows everything, but because he has a pretty good idea of what he doesn't know and where to look for answers.

    And since I'm a patent attorney, I have to throw this in: drafting patents (especially the claims) pretty much is black magic. Pro se patent applications (including pro se applications drafted by attorneys who are not patent attorneys) are almost uniformly worthless. Do not try this at home. You will fail. It will not blend.

"If the code and the comments disagree, then both are probably wrong." -- Norm Schryer