As I wrote two weeks ago, a petition for certiorari is pending in Bristol-Myers Squibb Co. v. Superior Court, a case that might change the rules for specific jurisdiction. A week ago, amicus briefs were filed by several large corporations and their lobbying groups, including a brief by GlaxoSmithKline that included these curious quotes and citations:
When’s the last time you saw a multi-billion-dollar corporation tell the Supreme Court of the United States to get the real facts about personal injury lawsuits from The Trial Lawyer Magazine and a six-year-old post on accidentinjurylawyerblog.com?
I’d certainly trust Ron Miller before GlaxoSmithKline. Sure, there’s reason to question the credibility of both: GlaxoSmithKline paid $3 billion to settle fraud claims brought by the Department of Justice, whereas Ron Miller didn’t follow me on Twitter until recently. Despite that obvious lapse in Ron’s judgment, he’s a trustworthy guy.
The citation to Ron’s blog is not the only time I’ve seen a legal blog cited in a brief. I recently saw a federal appellate court brief filed by a drug manufacturer include a citation to Drug & Device Law, a blog written entirely lawyers who represent drug manufacturers. I don’t have a problem with that, either. The citation to Drug & Device Law was in many ways a de facto extension of the page limits, because the post in question advocated for the same position the defendants were taking, but the same could be said for many of the nominally “unbiased” law review articles that are routinely cited in briefs and by courts.
But there are deeper issues we need to consider here. Are parties encouraging courts to decide cases based on facts outside of the record? Should courts decide cases based on advocacy pieces from non-parties? Are we really entering an era in which a lawyer can credibly support an argument by referencing something they read on the Internet?
Continue Reading When Lawyers’ Blogs Are Cited In Federal Courts