Just when I was going to write a substantive post about a recent New Jersey Supreme Court opinion, the leading propagandist for the Fortune 500, the U.S. Chamber of Commerce, came in and released a new report about online advertising by trial lawyers. Tort reform and lawyer marketing in one article? I can’t miss that. (An aside: don’t kid yourself that the U.S. Chamber of Commerce cares the slightest bit about small business. The Chamber is the most anti-free-market lobbying group in the country, an organization dedicated to ensuring the biggest corporations in the country stay that way, squashing small businesses and regular people alike.)

The “study,” technically done by the “Institute for Legal Reform,” is called The Plaintiffs’ Bar Goes Digital. I’m still unclear what the point of the research was, so I’ll just quote their press release:

The plaintiffs’ bar contributes to the commercialization of the legal profession by using a sophisticated and complex combination of paid search advertising and high organic search optimization of websites to generate site traffic – all with the goal of collecting the personal contact information of potential plaintiffs.

Plaintiffs’ firms are devoting millions of dollars to the creation and maintenance of websites, Facebook pages, Twitter handles, blogs and YouTube channels. By measuring Google advertising spends on 125 keywords during a 45-day period and then extrapolating to a 12-month period, we estimate firms will spend more than $50 million on Google keyword advertising alone. To put that in perspective, the Obama for America campaign – often held up as a pioneer in digital advertising – spent $16 million total in online advertising in 2008.

Initially, those numbers are due primarily to three outliers. The report says that Danziger & De Llano, The Lanier Law Firm, and Sokolove Law account for half of that $50 million. No surprise to see Sokolove there; he’s one of the pioneers of attorney advertising.

Let’s put those numbers into some real perspective. Last year the U.S. Chamber of Commence spent over $66 million lobbying representatives. In 2010, it was $132 million. In 2009, $144 million. Since 2006, they’ve spent far more money lobbying than any two other lobbying companies combined. Of course, a quick peek at those top 20 lobbying companies of the past decade shows many asbestos defendants, like General Electric or Northrop Grumman, also paying millions to lobbyists, too.

More perspective? Online healthcare and pharmaceutical marketing is over $1 billion a year. In the wake of the Deepwater Horizon oil spill, BP was buying $3.59 million in AdWords related to the spill every month. Standard search engine marketing tools show that companies like Expedia and Amazon each spend $7-8 million annually on AdWords.

If the point of the study was to portray the plaintiffs’ bar as an unstoppable juggernaut beating up on poor little billion-dollar industries, I’m afraid they’ll need to go back to the drawing board. 
Continue Reading Chamber of Commerce Swings And Misses At Plaintiffs’ Lawyer Advertising

Yesterday Letters of Note, one of the essential reads of the Internet, posted a letter from David Foster Wallace, who had just completed but not yet published Infinite Jest, to Don DeLillo, asking for advice:

Your note of 9/19 was heartening and inspiring and also made me curious about several things. I would love to know what changes in yourself account for “And discipline is never an issue (as it was in earlier years).” I would love to know how this education of the will took place — would that you could assure that it was nothing but a matter of time natural attritive/osmotic action, but I have a grim suspicion there’s rather more to it. I’d love to know how the sentence quoted above stands in relation to “The novel is a killer. I try to show it every respect.”

I think my fiction is better than it was, but writing is also less Fun than it was. I have a lot of dread and terror and inadequacy, now, when I’m trying to write. I didn’t used to. Maybe the terror is part of the necessary reverence, and maybe it’s an inescapable part of the growing-up-as-a-writer-or-whatever process; but it can’t — cannot — be the goal and terminus of that process. In other words there must be some way to turn terror into Respect and dread into a kind of stolidly productive humility.

I have a hard time understanding how Fun fits into the Dedication-Discipline-Respect schema. I know that I had less fun doing IJ than I did doing earlier stuff, even though I know in my tummy that it’s better fiction. I think I understand that part of getting older and better as a writer means putting away many of my more childish self-gratifying notions of Fun, etc. But Fun is still the whole point, somehow, no? … How do I allow myself to have Fun when writing without sacrificing Respect and Seriousness, i.e. going back to the exhibitionism and show-offery and pointless technical acrobatics?

(Note to the persnickety: I omitted two curse words.)

The importance of “fun,” which I interpret broadly as “enjoyment” or “fulfillment,” can’t be overstated. Life is short and often unforgiving of small mistakes, as it was when Steve Jobs briefly delayed his cancer treatment. As Jason Kottke (another essential read of the Internet) notes, Jobs’ death has been “inspiring some people to turn away from the lifestyle & choices that made Jobs so successful & inspiring in the public sphere and to attempt the path that Jobs did not.”

It brings to mind the famous interview of renown bankruptcy lawyer Harvey Miller on his decision not to have kids: “You have to have time to give them love, and I didn’t.” It’s fashionable to sneer at the concept of work-life balance, but, as I’ve discussed before, the concept is nothing more than a simple reminder that you cannot live your life devoted to work and family. You will have to make one yield to the other at critical times; the only part that matters is that you actually make the choice, instead of letting the choice happen to you.Continue Reading Stolidly Productive Humility: Instilling Discipline By Finding Fun

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.
Continue Reading The Real Risks Of Writing A Legal Blog

Lawyers, particularly young lawyers, often pride themselves on being more clever than one another, and so particularly resent other lawyers who don’t seem to possess the same rapier wit and razor-sharp reasoning skills we claim for ourselves.

Every lawyer knows that dimwit who they can’t believe even passed the bar. The one with all those uninspiring and poorly-researched arguments in their briefs that never cite any relevant cases. The one who prefaces every argument to the court with “in layman’s terms,” as if the judge wasn’t also a lawyer.

The one who, despite being dumb as a stump, has a steady clip of good business.Continue Reading The Secret Behind The Dumb But Successful Lawyer

It is a truism among trial lawyers that compelling stories win cases.

Jim Perdue, a trial lawyer in Texas, wrote a trial advocacy book literally titled Winning with Stories: Using the Narrative to Persuade in Trials, Speeches & Lectures. I’ve written several times before about studying the methods of the great storytellers of our times and of classical times and how juries respond to the emotions conveyed by counsel.  The cynics might say we are doing nothing more than scheming to manipulate the emotions of jurors — like when a judge wrongly let defense lawyers drive an inadequate security / wrongful death case completely off the rails by discussing the Reptile book — but trial advocacy isn’t about misrepresenting yourself to jurors. It’s about choosing the most persuasive form of advocacy among many honest options.

Cases don’t come to us with summaries attached telling us which points to emphasize and how to construct the presentation of evidence at trial.  Perhaps worse, the structure of trial, particularly the way in which each witness testifies fully before the next witness is called and the requirement that a foundation be laid for all testimony, is almost designed to prevent the jury from understanding what really happened.  I’m fond of telling young lawyers and clients to recall the last great book, play, or movie they read or saw — perhaps Inception or Hamlet or Harry Potter — and then imagine if they had to figure out what happened based on nothing more than long, convoluted question and answer sessions with each of the participants.  Would you have any chance of understanding what happened if you sat as a juror on the the posthumous trial of Hamlet?

We all know a trial lawyer needs to turn that jumble of evidence into a story, but what story should that be?

To that end, let’s turn to John Reed, a rather unusual writer who, for example, successfully constructed a “new” Shakespeare play by mashing up lines from Hamlet, King Lear, Macbeth, Othello, Romeo & Juliet and Henry V into a cohesive narrative. In the latest Rumpus he rails against the commercialization of fictional narrative, with a couple interesting observations for those of us outside of literature:

To this day, sin, suffering, redemption is the primary Western story. In movies, in television, in cross-cultural memoirs (which must accept the Western story to be culturally significant) and in fiction. Harvey Pekar, in his recent collection, Huntington, West Virginia on the Fly puts a percentage to equation: 99% of what we encounter is establishment narrative.

In West Virginia and the body of his work, Pekar understands that a story can be told of any of us, without forced structures or prerequisites—because every man, every woman’s life, is an allegory of our times, and in the broader sense, existence itself. …

The distinction—from life or from edict—happens to be the customary distinction of the literary v. the non-literary work. The logic:

—In literary works, the structure is derived from the content.

—In non-literary works, the content is derived from the structure.

Max Brand (Frederick Schiller Faust), a prolific pulp western writer of the 1920s and 30s, maintained that there were two types of stories: coming home, or leaving home. The assertion neatly correlates to the classical definition of comedy and tragedy, as well as a content-first v. structure-first division of the arts. The coming home story (usually comedic or “feel good”): the cowboy accepts and/or is accepted by society. The leaving home story (usually tragic or “dark”): the cowboy rejects and/or is rejected by society. Structure-first stories, i.e. coming home, tend to be about assimilation, while content-first stories, i.e. leaving home, tend toward dissent.

Deep stuff, perhaps a bit too deep for me — “Academia, outmoded and provincial, peddles geniuses and nihilists, ignores contemporary writers of far more immediacy, relevancy, talent and accomplishment” — considering that I cited Harry Potter earlier in this post, but there’s a lot we can learn from examining the way in which narratives are formed, particularly this distinction between whether structure drives content or vice versa, and the idea that all stories fall into a couple predictable forms.

One obvious analogy to draw is that the “evidence” is the “content” and so it should drive the “structure” of the presentation at trial — but the evidence is a jumbled mess of known facts, known unknowns, and unknown unknowns. The lawyer has to create some semblance of structure to even begin arranging the evidence for presentation at trial. The core narrative of sin, suffering, and redemption fits much of our work, with the negligence as the sin, the damages as the suffering, and the plaintiff’s lawyer asking the jury to redeem the tragic situation, but it doesn’t get you very far into developing a real narrative for your case.

And then there’s a potentially bigger problem.Continue Reading Trial Lawyers As Storytellers, The Narratives Versus The Numbers

SCOTUSBlog, the premier media source — internet, newspaper, anywhere — for Supreme Court news, has just undergone a revision, including sponsorship by Bloomberg Law. Scott Greenfield, the premier source for complaints about legal blogging, thinks something was lost in translation:

Most disturbing is the resort to the formulaic approach of “ask the expert,” and the expert invariably being someone with scholarly credentials so that their every utterance comes with built-in academic credibility. We see it in newspaper articles and on television news, the lawprof opining about things he’s never personally touched and only seen from afar. We were knee deep in ideas from people who have never actually done the things they speak about with such refined expertise. Now we’ll be neck-deep.

For those of us who have long appreciated SCOTUSBlog being there, being the first resource for Supreme Court decisions, briefs, reports, it seems unfair and unappreciative to question Tom Goldstein’s effort to make money off his blog and further his career as a Supreme Court litigator. And yet, I can’t help feeling that we’ve lost a trusted friend, a reliable neighbor, who is moving from the ‘hood to the corporate bigtime. And that our comments will be deemed too stupid and unworthy to make it onto the small screen.

Bob Ambrogi is more sanguine:

I believe that Bloomberg’s sponsorship will prove to be a benefit to readers of SCOTUSblog. For several years now, this blog has moved closer and closer to becoming a serious — dare I say “mainstream” — news site, particularly since bringing aboard Lyle Denniston. Now it will be able to devote more staff and resources to that task, which can only make it all that much better.

And before anyone bemoans the blog for “selling out,” keep in mind that this new sponsor is, itself, a professional, global news organization, one that already has a strong legal news component. As a matter of fact, I would say that this sponsorship will be better for the blog’s readers than was the blog’s longtime affiliation with a major law firm, Akin Gump.

The rebirth of SCOTUSBlog as more a form of SOCUTSNews was unavoidable and has been a long time coming. You don’t get very far as a Supreme Court litigator by pointing out how unprincipled and political many of the Court’s decisions are. You also don’t become a major media source for commentary by pointing out that the court’s key opinions are loaded with rank hypocrisy — consider how often the five “Federalist” judges these days use ambiguous federal statutes to pave over state-created rights — or that their poorly-reasoned opinions often raise more questions than they answer.

Truth is, as a blog gets more popular, it tends to get more “mainstream” and less provocative. That’s not necessarily a bad thing; SCOTUSBlog was never particularly edgy, and there are plenty of people around more than happy to criticize our robed overlords. I couldn’t be happier that SCOTUSBlog has a bright and secure future as the primary source for plain-vanilla apolitical analysis of the Supreme Court; it’s the first place I go for information about the Court. No offense to the New York Times or NPR, but, when they report on the latest opinions, they simplify matters for their non-lawyer audiences, and they don’t helpfully link to the lower court opinions and the merits briefs.

The SCOTUSBlog revision puts into perspective some trends I’ve seen in the universe of practicing lawyer blogs. (Put aside the legal academic blogs and media ventures unaffiliated with firms; they have separate trends.) It seems the practicing lawyer blogs are separating into three general classes of blogs, which I’ll call the mainstream, the personalities, and the marketers.
Continue Reading The Three Types Of Practicing Lawyer Blogs

As a lawyer, you’re either a conversationalist, a counselor, a writer, a storyteller, or some mixture of them all. I spend a fair amount of my time reading or writing pleadings and briefs, a fair amount of time either preparing a story (through discovery and depositions) or telling a story (at a court hearing or at trial), and the remainder of my time counseling clients.

Consequently, I’m a sucker for any advice from writers and storytellers, and have previously referenced the methods of writers like David Mitchell and Philip K. Dick, as well as storytellers like Jay-Z and David Mamet. (I’d be remiss in mentioning David Mamet in an article about writing and advocacy without also also referencing Christopher Hitchens’ animadversion against Mamet’s book.)

So naturally I was drawn to NPR’s new story on Poet Laureate Philip Levine:

Levine’s work is most famous for its urban perspective, and its depiction of blue-collar life in Detroit. But while he was working in the factories, he found nothing poetic about them.

“I found the places hateful.” His job at Chevrolet Gear and Axle was hard, he says, “and the work was exhausting.” …

Why was it so hard? Levine quotes another poet laureate, William Wordsworth: “‘Poetry is made up of emotion recollected in tranquility.’ I didn’t have any tranquility,” Levine says. “I was full of anger. I was very aware of the fact that I was being exploited and the people around me were being exploited. There was a mythology about us: We were stupid and lazy and we deserved what we were doing, our dumb work.”

The whole article is worth a read, in part for his stories about that blue collar work, which remind me of Studs Terkel.

Levine adds:
Continue Reading Poet Laureate Philip Levine On Writing “Where The Poem Leads”

There’s been a lot of chatter on a couple law blogs about Rachel Rodgers, a 2009 law graduate with a knack for marketing herself. She’s licensed in New York and New Jersey but practices out of a home office in Arizona, where she’s not licensed; I’m not sure if it’s a “virtual law office,” because I don’t know what that marketing term really means, but I consider it to be one.

Let’s reflect for a moment on how novel that sort of law practice is. Not for Rachel in particular — she certainly didn’t invent telecommuting — but historically: until about the 1980s or so, it simply wasn’t feasible to practice law in a state on the other side of the country from where you live. These days, with e-filing and the ubiquity of email and electronic documents, running your law practice in a paperless manner like a “virtual law office” can often make it more efficient.

As Carolyn Elefant summarizes, Rodgers’ setup raises, but doesn’t necessarily decide, a few ethical issues. If, for example, Rodgers counsels Arizona clients, that’s a problem, because she’s not licensed there. If she represents or markets for New York or New Jersey clients, she has to be careful to follow their strict “bona fide office” and advertising rules. Like with the John Wait situation, another discussion over marketing for new lawyers, a number of law bloggers criticized Rodgers and her practice and its marketing; Elefant rounds them all up.

But let’s put that aside for the moment and jump over to medicine. Via Larry Ribstein (via Marginal Revolution), who wonders about the parallels to law, there’s the story of Jay Parkinson, MD, MPH:

Upon finishing my second residency at Hopkins in Baltimore in September of 2007, I moved back to Williamsburg to start a new kind of practice:

  1. Patients would visit my website
  2. See my Google calendar
  3. Choose a time and input their symptoms
  4. My iphone would alert me
  5. I would make a house call
  6. They’d pay me via paypal
  7. We’d follow up by email, IM, videochat, or in person

It was simple, elegant, and affordable for me to start. But most importantly, it just made sense given how we all communicate and do business today. …

Then, about six months later I got an official letter from the New York State Office of Professional Conduct. Obviously, that was unsettling. It essentially said that someone had made a complaint about my practice and my use of the internet. They wanted all of my records about the eight patients I prescribed narcotics for in my practice— I prescribed one time prescriptions for Tylenol #3 for eight patients treating their acute pain for various conditions.

Parkinson titles his post, “What happens to doctors who think outside the box?

So, what happened to Parkinson?
Continue Reading Disruptive Innovation In Medicine And Law