Chuck Newton

The Blogfamation Law Niche

Okay.  Fine.  I will admit it.  I made the name blogfamation up, but people combine words all of the time for fun and profit.  For me it this is really more an amusement.  You see I have a online buddy, Corinne Tampas over at What's Your Authority, who, like me, gets a kick out of scouring the blawgosphere looking for possible overlooked legal niches.  Corinne is a little bit better at it than I because she is a legal researcher and writer, and as such she tends to fall across these issues more easily.  We do not necessary look for practices areas that have not been tried, but rather those that are not well positioned or not well identified.  We look for sub-practice areas at which some attorney should be able to make a full time living if he or she wished.  Anyway, this is more Corinne's discovery than mine but, for better or worse, I made up the word.

Hence, blogfamation.  Either bringing or defending defamation suits because of all the crap and careless trash talking on the web.  Some have called cyberlible.  Let us face facts.  Real or not, truths or untruth, fact or fiction, gossip and rants spread across the web like wildfire.  Sometimes people are hurt.  Sometimes people are not hurt but think otherwise.  Sometimes people and companies are unduly helped by this wrong information.

There are sites the touch on this phenomena.  Dan Abrams help launch Gossip Cop recently, it which the site states that it is "Busting bad dish!"  There is FactCheck.Org.  It is a problem that even the best organizations have to fight.  Now Public recently reported that Wikipedia, for example, is changing how members contribute to online articles.  Under its old system, anyone could write and edit an article without revision, but under the new system articles about organizations and people will have to be fact checked by an editor before it is published.  There are sites that try to alert you and help you repair your online reputation.  One is called Reputation Advocates.  Another is Reputation Defender.  IRM Consultants claim to "neutralize negative publicity" on the web.  Of course, negative publicity is not the same as defamation, and consultants are not law firms.

There are some law firms that dabble in this area, as well as other practice areas, such as Kroneenberger / Burgoyne.  The Nissenbaum Law Group has a blog on the subject, but with most of these firms this is just one of many practice areas in which this subject matter can get lost.  For most online defamation is a sideline for technology lawyers and law firms, but defamation falls more in tort than it does in little tech disputes.  Other defamation lawyers are more broad based than this.  Nobody nationally or locally is really the blogfamation expert that I can see.  Few limit their practice to this area.

Presently, you see this problem in everyday life.  Clarksville, Texas attorney Mark Lesher and his wife filed a defamation lawsuit against anonymous posters on the Internet forum Topix.  They were just unmercifully trashed by a bunch of posters as they were charged in a what can only be considered a frivolous criminal charge of sexual assault in which they were summarily acquitted.

A Florida woman was awarded $11.3 million in a defamation lawsuit against a Louisiana woman who posted messages on the Internet accusing her of being a "crook", "con artist" and a "fraud".

Bloggers sued by Anna Nicole's mother have been going to jail, not because of any potential defamation but because, in one case, they failed to follow court orders, such as turning over computers for inspection.

Most of us read where Sarah Palin's lawyer threatened to serve libel papers on a blogger at a local kindergarten where the blogger worked.  That was probably a bit unnecessary and a represented a little too much grandstanding, but the blogger speculated on whether Palin had marital problems that might be leading to a divorce between Palin an her husband.  This represented an unproven or unsubstantiated rumor.

I do not know if Sarah Palin is right or wrong in pursuing these matters.  After all, she is a public figure.  Also, she starts plenty of these kind of unsubstantiated rumors herself, such as coining the phrase, it seems, "Obama death panels".  But, the point is that rumors, some damaging, can be rampant on the Net.  People and companies do not like it and they want to pay someone a lot of money to vindicate themselves.

The situation is not always helped with the proliferation of so-called "gripe sites".  Some are more general, such as Ripoff Reports.  But, others have more specific targets, such as ScrewPayPal.Com, FarmersInsuranceGroupSucks.Com, and ChaseSucks.Com.  MyVWLemon.Com boasts 2,000 members and 15,000 message board postings from VW buyers.  You can find a ongoing list of these on WebGripeSites.Com.  How long these sites will stay up before being removed is anybody's guess, but whether someone has a grievance or not, does not mean all of the statements posted on these sites are correct or innocent.  Public Citizen tends to get a lot of criticism itself, but it has been know to defend the existence of grip sites.  You have to think that when those griped about gripe about gripe sites it is often called litigation.

The question is which one of you is going to become the first lawyer known exclusively as the blogfamation expert in your area?

Gettin' Wiki With It

Law Practice Today is out.  Get your current copy while it is still at newsstands.  (Wait a minute.  Are there still any newsstands?  Come to think about it, I have not seen one in a long while.).  Well, anyway, you can read it online.  (That is so Web 2.0).

Now if you clicked on my last link, you would have noticed what I did.  I referred you to Wikipedia for an explanation of what Web 2.0 is all about.  As they say in the Guniness Beer TV commercials -- "BRILLIANT"!!

In Law Practice Today, Dennis Kennedy and Tom Mighell ask the question, "Why should lawyers use wikis?" I use wikis.  Do You?  The real question is if you are not using wikis in your daily practice, why not?  (Or, as Kinky Friedman would ask, "WHY THE HELL NOT?").

As explained by the authors of Wikis for the Legal Profession, "Wikis can be seen as constantly updated collections of useful information arranged in an encyclopedic or similarly organized way, with hyperlinks to related internal and external information." They continue:

..perhaps the greatest potential of the wiki tool for lawyers is its use as a collaborative tool or even an information or knowledge platform, especially as a way to gather and manage "unstructured" information easily and quickly. The key feature of wikis in this regard is that multiple authors and editors are able to work together to create a collection of information or even collaborative documents.

The authors have listed a good many wikis and sources you might seriously want to read or review.  For my part, however, my first search of choice is Google (sometimes if I am looking for top searches on most of the search engines I will go to Dogpile).  My search engine will almost always take me to Wikipeadia or some wiki.

Wikis are not gospel (although Wikipedia will summarize gospel for you).  Therefore, there has been a great deal of attack against wikis in by legal scholars.  But, here is the problem with there argument.  With the possible exception of Supreme Court decisions (and sometimes those are questionable -- see Bush v. Gore for one screwed up set of arguments), most things are not gospel.  Do you believe that everything we read in legal decisions, briefs, law review articles, books, magazines or almost anything on the Internet is completely accurate.  I would argue that wikis are at least as accurate, if not more accurate, because they have multiple authors reading and contributing to most articles.

So, do do not delay.  Get your wiki on, today.

My Dirty Little Research Secret

Here is my dirty little secret.  I do not like to talk about it because my colleagues would think I am lame.  But, I start out all my legal research projects (whether preparing a pleading or a legal brief) with Wikipedia  Google and YouTube.  Another of my favorites is Dogpile because this search engine searches all of the other search engines to bring you the top finds of each on whatever you input.  All I can ask is that, shhhhhh, please do not tell anyone.  Oh, the utter shame of it all!

One, these services are FREE.  They are extensive.  Two, they all provide a great survey of the legal landscape that you are researching.  If I want to know who I am about to sue, if I want to know if a company has had any other similar complaints, if I want to know if the government or anybody else is after a potential defendant, if I want to generally look at a legal issue or a particular case sited, if I want to determine the exact definition of a term or concept, or any number other things, I start with these sites.

I am not saying that I conclude my research here.  I am not saying that I do not expand upon what I learn or gather.  I am just saying that nine out of ten times this is where I start.

It has gotten so that if another attorney calls me to discuss a matter and refers to a case, I do not get on my legal research or case law website.  I will punch it into one of these sources, and I will generally find the case or the reference.

It was not long ago that I asked when Google was going to bring us true FREE legal research capability.  After all, the cases are open and free to the public.  Google is already scanning the World.  It just needs some more defined search tools specific to this area.  After all, why should we all be paying West, Lexis, LoisLaw or anybody else all of the money we do for access?

What brings this up is a post on the Wall Street Journal's Law Blog asking whether Judges should use Wikipedia in their research and in their opinions?  Well, of course they should.  I seriously doubt that judges approach their material any differently than we do.   

As stated by the WSJ, in 2004 more than 100 opinion have cited Wikipedia, including 13 from federal appeals courts.  Some find this objectionable because they say it is an "unstable source", meaning that it lacks some types of quality control.  Well, I find this not so much inaccurate, but confusing.  Because as a reader of many judicial opinions I can tell you that many of these cases represent "unstable sources".  That is the reason that we have multiple levels of appeal.  I might not like what some judge says, how he reasons out an issue, or performs his legal research, but say that these decisions have any more quality control, or that they are more stable than Wikipedia just is not accurate.

Law review articles are often cited in legal decisions.  Attorney general decisions are cited in legal opinions.  In fact, out Attorney General had the unmitigated gall to get up in front of Congress and defend his opinion that the right to habeas corpus was statutory rather than constitutional because  the Constitution only defines when the government can suspend habeas corpus and does not say that it grants habeas corpus.  It was his what-the-meaning-of-"is"-is moment.  To say that decision of his, which has also been presented in Court, is stable or has undergone some type of quality control (other than spell check) is a ludicrous position to take.

I would have a problem if a judge or a lawyer started with and stopped with Wikipedia, Google or the rest, but what is the problem in looking at all available sources and mentioning those that stand for reason.

Seventh Circuit Judge Posner, who has cited Wikipedia in a decision said it best: “Wikipedia is a terrific resource . . . Partly because it so convenient, it often has been updated recently and is very accurate.” He added: “It wouldn’t be right to use it in a critical issue. If the safety of a product is at issue, you wouldn’t look it up in Wikipedia.”