[Eric Muller, guest-blogging, February 14, 2008 at 4:33pm] Trackbacks
How Do These Here Newfangled "Blog" Things Change A Lawyer's Handling Of A High-Profile Case?

A week from today, I'll be giving a talk to a group of North Carolina attorneys at a Continuing Legal Education program on the topic "High Profile Cases in NC: Constitutional, Ethical and Strategic Implications." (Can't imagine why anyone in North Carolina would be interested in high-profile cases these days, but hey, whatever.)

My talk will be on "How New Media Are Changing the Definition of High Profile." Lawyers will be interested in hearing about the risks and benefits that the new media (blogging, vlogging, podcasting, etc.) present for a lawyer who is handling a case with a high public profile.

One of the best ways I can think of to illustrate to lawyers the power of this "new medium" is to use it.

So, new media readers and writers, tell me: what sorts of impacts are the "new media" having on high profile cases? What does a lawyer today need to know about? Worry about? Keep track of? How can a lawyer ethically use new media to his client's benefit?

We all know about the Duke Lacrosse case, of course, and the important impacts of bloggers' work on the way the case unfolded. What other examples are out there?

(Many, many thanks to Eugene for allowing me to post this query here. I'd have done it at my own blog, but my comments are broken, and, well, I think the VC gets just a few more hits than mine.)

Anderson (mail):
Well, in Dickie Scruggs's case, they give the criminal defense attorney something else to whine about.

In a motion to change venue, the famed tort lawyer's defense attorneys complain about Mississippi-focused "web logs (blogs) that report, in excruciating detail, every event in the prosecution and defense of the Scruggs criminal case" and related proceedings
2.14.2008 5:11pm
Prof. Muller:

You may remember the case in Wilmington from last year where the sheriff's deputies saw pictures on a MySpace page that made them believe (mistakenly) that the house they were getting ready to raid would have a bunch of guys with guns. Extra tense, one of the deputies ended up shooting an unarmed guy through the door.

So that is not a lawyer using new technology, but it made me wonder how a defense attorney who knew his client had some incriminating evidence on a MySpace page or blog should respond. Is it destroying evidence to tell them to take the page down? I assume not, but I am not sure.
2.14.2008 5:39pm
advisory opinion:
The Cory Maye case - it wasn't "high profile" until Radley Balko made it high profile at The Agitator. Kerr and Covington &Burling did the pro bono.
2.14.2008 7:30pm
Paul Milligan (mail) (www):
I forget the details ( email me if you need them ) but here in North Carolina last year, there was a school district that decided to prohibit the display of the American Flag, in a respectful manner, on the anniversary of 9/11. This was in direct response to a written threat of suit by the ACLU.

There was such a S***-storm raised in the blogs ( it was picked up by Malkin etc ), the school system was FLOODED with calls ( the superintendent returned mine late that evening, and told me about the ACLU letter ), that within a few days he had reversed his decision, and district policy.

Also, in Parker, Sen. Hutchinson's office got a lot of blog-informed calls to stop her from proceeding with the 'DC Firearms Protection Act' that would have mooted what is now Heller.

The impact of the blogs on last years 'Shamnesty' bill was overwhelming, also. The grass roots movement is what defeated that horror-show.
2.14.2008 8:01pm
atrsge (mail):
This isn't exactly what you are looking for, but it's still worth mentioning. There was a case a couple of years ago where a murder victim wrote on his blog that his sister's ex-boyfriend was hanging out with him. This was used as evidence to convict the ex-boyfriend of the murder. So one tangent might be how blog entries could be used in actual cases (and whether they are trustworthy).
2.14.2008 10:16pm
Prosecutorial Indiscretion:
The feds keep pretty tight-lipped about active cases, so we can't really use blogs proactively. But I have a colleague who had a case that was discussed in some depth on this blog, and the analysis and discussion helped sharpen her arguments and gave her a good idea of exactly what to expect from the defense.
2.14.2008 10:18pm
David Smyth:
One issue that seems likely to me to come up more and more is what courts will do about witnesses in high profile cases who courts would like to silence with gag orders. If the witnesses made out-of-court comments about a pending case on a blog, it would be very hard for a court to gag them. (There are other reasons it would be hard to gag a witness legitimately as well, but blog comments start to bleed into media commentary that a court could never silence.)

Of course, you can read all about this in my article, A New Framework for Analyzing Gag Orders against Witnesses, 56 Baylor L. Rev. 89, 120 (Winter 2004)!
2.14.2008 10:36pm
Be sure your clients aren't doing this without your knowledge.
2.15.2008 1:38am
Public_Defender (mail):
The effect of media attention is inversely proportional to the integrity of the prosecutor and the judge. When you have weak-kneed prosecutors and judges, media attention can kill any opportunity to resolve the case short of a trial. This attention compels the weak-kneed judge not to think about sentences less than the maximum and makes the weak-kneed prosecutor withhold plea offers that otherwise would have been made.

As a result, more high-profile cases go to trial. That increases the chance both of a complete acquittal and of a higher sentence if convicted. It also takes the prosecutor from working on the other cases on her docket. That means those low-profile defendants get better deals as a result of the media attention and resources devoted to the one high-profile case.

On appeal, if lawyers know that a court or court staff reads major blogs, those blogs offer lawyers the ethically questionably ability to effectively file supplemental briefs. Prominent bloggers have the chance to effectively file amicus briefs without actually filing briefs.
2.15.2008 6:19am
The ongoing case in the EDVA regarding the US PTO's proposed rule changes (Tafas v Dudas, consolidated with GSK v Dudas) has had quite a bit of blog interaction. Because of the interest in the case on the part of patent attorneys, there has been at least one blogger at almost every hearing, and that blogger usually posts an update as to what went on.
Beginning early in the case, the blogger(s) were submitting posts pointing out relevant points of law that weren't addressed or were glossed over, or points that could use more support. The posts were usually followed in the comments by sharp analysis of the mentioned points of law, investigations and findings of important supporting documents, and so on. Many of these discussions and found evidence have made their way into later briefs of the parties.
I doubt that even a company like GSK, with its significant resources, could have produced so quickly the documents and analysis that showed up following a single blog post.
A good blog post that gets attention for a case is like enlisting a highly-talented nationwide pro bono team.
2.15.2008 10:44am
In the pre-blog era, a very wise career prosecutor once told me that it's almost never a good thing when a line prosecutor's name is in the press for anything other than simple reporting of in-court statements. The blogsphere has so vastly expanded the opportunity for third parties (and litigants without most prosecutors' public comment restrictions) to make extrajudicial comments on cases that the old wisdom is basically obsolete.

New wisdom (applicable not only to prosecutors): you'd better proactively monitor what bloggers are saying about you and your case. If you're prepared to respond in court to criticisms and arguments you first see on-line, your case will be stronger. And who knows, maybe somebody will make a point favoring your side that you haven't already thought of...
2.15.2008 1:26pm
Paul Milligan said:
I forget the details ( email me if you need them ) but here in North Carolina last year, there was a school district that decided to prohibit the display of the American Flag, in a respectful manner, on the anniversary of 9/11. This was in direct response to a written threat of suit by the ACLU.
The above is pretty much the opposite of what happened. As part of their attempts to prevent gang-fighting where the gangs wore the flags of various Latin American countries, the school district had a policy prohibiting the wearing of all flags. Based on this policy, the school superintendent banned the display of US flags as part of the 9/11 memorial in school. The ACLU *protested* the policy, and threatened a lawsuit in *defense* of the First Amendment rights of students to wear flags. The school board backed down. Mr. Milligan, I assume this correction will now make you rush to become a member of the ACLU.
[I did a Google search using the terms "North Carolina ACLU Flag School" and page after page came up rebutting Mr. Milligan's version.]
2.15.2008 3:37pm
Public Defender,

Do you think that's not also true of defense attorneys? I've seen many defense attorneys drag high-profile cases through long and elaborate jury trials where they ordinarily would have pled out or taken a quick bench trial. I think all sides are equally vulnerable to public opinion and exposure, if in different ways.
2.15.2008 4:06pm
Bill Dyer (mail) (www):
On the first morning of my last jury trial, the judge addressed me in stern tones: "Mr. Dyer, I'm afraid I'm going to have to make an embarrassing revelation to your client about you. You see," and he paused significantly, lowering his voice another half-octave, "I know that last night, when you should have been preparing for trial, you were actually blogging!"

The judge was, however, merely teasing me. I had indeed written a short blog post on the previous night, the main point of which was to warn readers that I was currently busy with trial prep and would likely not be blogging much, if at all, for the next couple of weeks. The judge was just letting me know he'd seen my post; I already knew, and he knew I knew, that he was at least an occasional reader.

The incident was good reinforcement, though, for my universal working assumption that everything on my blog, and on my (separate) professional firm website, is available to and fair game for my opponents. During that trial, as I was on the stand myself, giving testimony in support of my client's claim for an award of attorneys' fees, I was cross-examined vigorously (if not very effectively) based on a statement taken from my professional website's section on fees. And during the same trial, I ended up using pages from the defendant's commercial website both during my cross-examination of him and his closing argument.

It's fair to say, then, that my cases, clients, and matters have a substantial effect -- one that's almost entirely inhibitory -- on my blogging. And if I'm careful, my blogging won't have a direct negative effect on my cases. Although they sometimes involve many millions of dollars and are hugely important to the litigants and counsel, my cases generally aren't "high-profile" enough to merit having a "media strategy." If I imagine myself handling such a case, however, I strongly suspect that I would be hyper-reluctant to deliberately try to influence anything connected with the case through my blog. The upsides I can imagine seem all too speculative, and the downsides seem huge and not very speculative at all.
2.15.2008 7:14pm
Bill Dyer (mail) (www):
Bah ... the last sentence in third paragraph above, which says "of him and his closing argument," should instead read "of him and my closing argument."
2.15.2008 7:16pm