The Real Risks Of Writing A Legal Blog

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.  I assume the same is true for Jim, even though he does exactly the opposite of what I do.  If you don’t believe strongly enough in the work you do as a lawyer, you should probably focus more on finding direction in your professional life or changing practice areas than on writing a blog.

But that’s not to say there aren’t some very real risks in setting up and writing a blog.

1.         You could hate your blog.  Coincidentally, around the same time of Jim’s post, Bloomberg Law posted a discussion between Kevin O’Keefe and Scott Greenfield. Kevin and Scott firmly agreed that nobody wants to read a boring blog.  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.  If you have no interest in the subjects you’re writing about or aren’t happy with the way you’re writing about them, then stop and come up with something else to write about.  It’s that simple.  I recommend new bloggers spend at least three months writing a stealth blog that is never published anywhere so that they can learn more about themselves as bloggers, discover their own strengths and play to them, reveal their own weaknesses and avoid them, and develop good habits.

2.         Blogging takes a lot of time.  Once you’re happy with the substance of your blogging and you start to take some pride in it, you’ll recognize that pride comes from quality and quality requires time.  In every lawyer’s line of work there are a handful of motions or agreements or letters or whatnot that you can crank out in five minutes by fiddling with a couple details. Blogs don’t work that way because readers don’t work that way.  It doesn’t matter if you’re writing for the uneducated client who doesn’t know the right terminology or if you’re writing for judges, no one wants to read something that only took you a few minutes to think up and put into a post.  (Bite-size thoughts are for Twitter.) If you’re going to write a blog, you need to be prepared to invest the time and attention into it that you would invest into any other hobby or professional endeavor that you wanted to excel at.

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.

First, you will receive calls and emails from people you cannot help.  As I have discussed before on this blog, as a personal injury lawyer, I don’t charge a consultation fee. I also, as a matter of professionalism, take the time to explain to every client we have turned down why we declined to represent them.  We are set up around here to have resources dedicated towards intakes, but even then reviewing cases, deciding which others to accept, and rejecting others takes up a significant amount of my time.  Sure, getting the phones ringing is step one of any marketing plan, but are you ready for step two?

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.

4.         Your blog can become a distraction.  In theory, if you have the mental discipline of a Zen monk, you can compartmentalize all of the issues above, and choose to think about and act upon them only when you feel the time is right.  But most people’s brains don’t work that way.  More to the point, the world doesn’t work that way.  The blog can creep into a distraction at other points in your life, when you start thinking about potential blog posts or responses to comments or the like when you should be directing your brain towards your day job.

Did I mention you could get sued?  It happens.  Walter Olson was sued.  (The case prompted an interesting District Court opinion on the statute of limitations applicable to blog posts.)  One legal malpractice lawyer sued another over a blog post. There’s a couple other plainly meritless ones filed by pro se plaintiffs. Might you be held liable for something you write on your legal blog?  You might, but the odds are low if you’re reasonably prudent about what you write. But the potential for liability can be a distraction nonetheless.

5.         You may end up with nothing but a bunch of pie.  As I wrote, blogging is like a pie-eating contest in which the prize is:  more pie.  I think the benefits of blogging are sundry, but most of the benefits are also intangible.  I had over 120,000 unique visitors to this blog last year, nearly one-seventh the circulation of the printed The New York Times, which means… what, exactly?  I frankly don’t see this as any different from most of the professional development ventures that lawyers are told to do, like giving presentations or teaching CLEs or writing articles, but for some reason a lot of people believe that the Internet is totally different and that it is somehow good professional marketing when you write an article in your local legal newspaper but a total waste of time when you write the exact same thing on a blog.

6.         You could get in trouble with your Bar Association.  Last fall the Virginia Bar sanctioned a lawyer for truthfully describing his recent successes on his blog because he didn’t also add some garbled, confusing “disclaimer” that each case is different, that the cases he described weren’t representative, et cetera. Here’s me arguing in the comments of a MyShingle post about it. I think the decision is appalling — cross the Potomac and you can see the rarefied Williams & Connolly, counselors to Presidents, which includes Virginia-licensed attorneys, bragging about getting a conviction overturned without any disclaimer anywhere that each case is different, that the results weren’t representative, et cetera — but the Virginia Bar doesn’t seem to care about that. I don’t make or enforce the rules, though, and so you never know when a Bar might put a target on your back. [Update: By way of Twitter, Antonin Pribetic points out this February 1, 2012 opinion from South Carolina reprimanding a lawyer for lying on his website. Obviously, if you misrepresent your credentials, you will be subject to sanction, there's no special immunity for statements made on the Internet.]

Of course, all of that must be weighed against the risk of not writing a legal blog. You could spend your career toiling away in silent, lonely misery while the wannabe writer within you slowly gives up any hope of you actually expressing yourself to the world.

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