Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at firstname.lastname@example.org.
Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.
Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at email@example.com.
Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at firstname.lastname@example.org.
Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally,
to seek enlightenment. Email Ernest at email@example.com.
About this blog
Between Lawyers provides just-in-time group commentary on the issues
raised when technology, culture and the law intersect. We take you
behind the firewalls and conference room doors to show you how
experienced lawyers deal with these issues and help you prepare for
the new challenges we all face. For more, see our introductory post.
"We in the legal profession don't treat our young very well. We lie to them systematically. "
It takes things up a notch or two each step it takes. Important stuff on some of the most important issues facing the legal profession today.
It agonizes me to see the current law firm associate system at too many firms grind up some of the best talent entering the profession and force them to leave. There have been and will continue to be serious consequences of some of the choices law firms, law schools and others have made.
I can't believe all of the email I've been getting lately from eBay, PayPal, various banks and assorted other companies that appear to be sending me breathless warnings about problems with accounts that I never knew that I had.
Ah, welcome to the world of phishing, social engineering attacks at their finest. On our back channel email list for Between Lawyers last week, I sent a copy of an email purporting to be from Network Solutions that wanted me to update my information. I maintained that the email had at least four indicators that it was fake, but someone found a web resource that indicating that it wasn't fake or spoofed. That is, if we can trust that web resource. I still refuse to reply or click on any of the links in the email.
Why? There are too many of these emails that have bad intentions and can cause you harm. "Phishing" involves the use fo spoofed email addresses to make you believe that you have received a legitimate email requesting that you update information or visit a specific page. IF you do so, bad things happen.
All of this phishing makes me want to get out and do some real fishing, but it also makes me wonder if anyone else feels like email practices have returned to those of the early Internet email era, where you would send an email and then call the intended recipient to see if he or she had gotten the email.
I truly wonder whether any major company, especially a financial institution, can effectively use email to provide notices that require cutomer responses. I have several emails in my inbox from organizations at which I have accounts wanting me to update information or take other steps. I've decided that I need to call each of them (not using a number provided in the email) to see if the emails are legit and what I need to do. Next thing you know I'll be banking in person again.
Remember the days when email was something that we liked, not a threat vector.
Interesting that Denise and others mention this issue just as I'm exchanging emails with an editor about writing an article on this topic and some other estate planning / probate related matters involving technology and intellectual property that might well affect bloggers and their families. My concern is that a non-tech-savvy probate lawyer, executor or trustee can miss, overlook or not understand technology and IP issues that are increasingly coming into play upon peoples' deaths.
AKMA, in 2003 (and again): "Bloggers, remember that thou art dust, and to dust thou shalt return. . . ."
Appropriately enough on the Sunday of Memorial Day weekend, John Boudreau of the Mercury News picked up the theme again: Pondering new puzzle: who inherits digital data. These are issues it makes sense for today's netizens and estate planning attorneys to pay attention to, e.g.: "People might even want to name a trustee to handle digital information, with instructions on what should be destroyed and who should gain access to e-mails and other material."
With due respect to Dave Winer's and Adam Curry's extensive accomplishments with regard to RSS and Podcasting, their public spat over who did what (links deliberately omitted) is not particularly enobling of anyone.
However, there are some lessons for people involved in joint creative ventures.
Relying on the kindness of strangers to give you proper credit for your
creations is naïve. The intellectual property system provides a framework
for allocating 'credit.' Use it.
Relying on the kindness of strangers to conduct business is naïve. The
contract system provides a framework for conducting business. Use it.
Relying on the blogosphere to resolve your private disputes suggests that a person has boundary issues.
DuPont is demanding not so much truth but more detail - it wants to know whether partners working on its matters are equity partners or non-equity partners. The attorney explains:
"If the requested rate for an equity partner is $400 and the rate for a nonequity partner is also $400, I can ask whether it should be the same, given that one shares in the profits of the firm and the other is salaried."
I'm prepared to entertain the notion that a client has a right to know who is equity and who is not, if I heard a valid argument why but I don't think this is (if I'm missing something, we have comments enabled below).
The client clearly can question the hourly rate but imho it should be tied to the value of the lawyer, not to the cost of goods sold.
Is DuPont suggesting that it should know because non-equity status is an implicit indicator of quality? Sometimes it is, but I think that it is more often an indicator of economic power within a firm and less directly of legal ability.
Would DuPont argue that it is entitled to know the differing take-home profit points between the equity partners? The salary levels of the of-counsels and the associates?
I'm reminded of the episode in The Mary Tyler Moore show where Mary confronts Mr. Grant for paying men more. Mr. Grant replies that he pays men more because they have families to support. She replies that if he rigorously applied that rule, he would pay men with three children more than men with no children.
It ought to be the level of service offered, not the provider's cost structure that should dictate.
And let's refer to the elephant in the room. A client can hire away a non-equity partner more easily.
I have lately found discussions and debates about the use of blogs for lawyer or law firm marketing to be, well, boring. Thanks to a recent mention of a pair of articles on the use of blogs for lawyer marketing written by Jerry Lawson, Brenda Howard, Tom Mighell, Ernest Svenson and me in 2003 (here and here). I'm beginning to understand why.
I realize that I have been saying and hearing much of the same discussion of blogs for marketing for several years. It's no surprise that I've started to find it boring.
On the other hand, the use of RSS feeds for lawyer / law firm marketing purposes interests me greatly. But, blogging is blogging at this point. You either have gotten it or you haven't.
To be fair, I have some history in this Internet for lawyers stuff. I was a member of the class of 1995 of lawyers with websites. I wrote a couple of the seminal articles on the use of websites by lawyers and law firms. The 30+ Internet Roundtable columns on LLRX.com I co-wrote with Jerry Lawson and Brenda Lawson (along with the occasional guest author) remain, to me, the best materials written on law firm web pages and Internet marketing. I've also been blogging and writing about blogging for a couple of years.
That said, please feel free to ignore my advice and reach your own conclusions. The Internet is a free country, after all.
I decided to put together an FAQ (list of "Frequently Asked Questions") about the use of blogs in legal marketing in 2005.
1. What should be mandatory reading for any lawyer or law firm considering starting a blog?
Blogs have enormous potential, but its important to keep the phenomenon in perspective. I think were going to see another instance of the 80/20 Rule. It will probably shake out something like this: About 80% of all lawyer web logs will fail. The remaining 20% will have greater or lesser degrees of success, mostly modest. One per cent or so, maybe less, will be extremely successful. However, some of that 1% will be so successful that they will make their owners very, very glad they got into the blogging game.
2. What is the best indicator of likely success in blogging?
A history of meeting regular deadlines while producing a high quality newsletter.
3. What is the best thing to do if I want to start a blog or improve an existing blog and do it myself?
For many years, if you wanted to learn how to have a great website, you simply needed to study what Greg Siskind was doing at VisaLaw.com. There was no mystery. The issue was always whether you could execute.
For blogs, you simply need to study what Marty Schwimmer is doing at The Trademark Blog, which recently celebrated its third birthday. Note that Marty is now in his fourth year of blogging, while there are still law firms treating blogging as a "new" phenomenon and sending out alerts and press releases.
Everything you need to know about creating a successful practice-oriented blog can be learned by studying what Marty is doing at The Trademark Blog. The question is whether you can execute as well as Marty has and whether you have Marty's talent.
4. What is the best thing to do if I want to start a blog or improve an existing blog and don't want to do it all myself?
Hire Marty Schwimmer, Kevin O'Keefe, Dennis Kennedy, Matt Homann, Caroline Elefant, one or more of the Between Lawyers bloggers, or another of the bloggers who has been doing this for a while and who has a track record of success. Heck, hire several of them at once. And, I mean hire them and pay them well don't pick their brains over lunch or ask for free advice by email. There aren't that many people who have had blawgs that were successful over the long-term. I'm horrified by what passes for advice about blogging for lawyers from people who haven't maintained blogs of their own, but see blogs as the latest and greatest marketing tool.
Look for what people do best. Kevin O'Keefe is great for someone starting a blog and for those looking to improve existing blogs. I prefer to work with people focusing on RSS strategies and improving existing blogs, rather than with people starting out a new blog.
5. Is there a moral obligation for lawyers to blog?
I can't reach that conclusion, but I do feel that there may be a moral obligation not to clutter up the blawgosphere by launching another law firm blog with a lot of fanfare and then letting it fade away into neglect and oblivion over the course of a few months.
6. Anything else?
Prove that you have a good subject and that you can maintain a blog by preparing thirty posts before you launch your blog.
7. Anything else besides that?
Take a portfolio approach to marketing your practice. Blogging will only be one part of a marketing strategy and usually just a small part. However, if you are going to try blogging, you should try to do it successfully rather than half-heartedly.
8. Are you trying to say that blogging is hard work with no guarantee of success in the classic sense of generation of business and increasing revenues?
Yup. You didnt really think that it would be different from anything else, did you?
9. Are you suggesting that there may be other, better measures of the "success" of blogging and that the focus on blogs as marketing tools may be misplaced and/or overstated?
Yes, I am.
10. Do you recommend that lawyers and law firms do blogs that are like your blog?
Oh, heavens, no. I always recommend that a classic lawyer blog be modeled on the approach of the Trademark Blog or the time-tested principles of VisaLaw.com. My blog has nothing whatsoever to do with marketing my legal practice it's not a model to use for that purpose at all. Be wary of the advice of anyone who suggests that it is.
Well, that should resolve all of the outstanding questions about the use of blogs for lawyer marketing. Next subject, please.
Please note the category I've used for this post. Comments are now open.
One of my biggest concerns about the Creative Commons license has been the lack of guidance from CC on practical interpretation and enforcement issues. I've held off commenting on the issue Shelley raised because I expected to see something from CC on the topic. Unfortunately, my daily check of the Creative Commons blog has shown mainly the usual victory laps being taken when a high visibility site or celebrity uses or mentions the CC licenses, although Ill note that news of a tweak to one of the licenses has been mentioned. I make no secret of my belief that this approach is not especially helpful and opens the CC to the criticism that it is more of a marketing gimmick for CC than a serious effort to benefit the Internet community by providing a workable and well-accepted license.
However, we at Between Lawyers did decide to apply a CC license to this blog, despite some reservations, and it's important for us to discuss the implications of that choice.
My property law professor at Georgetown, John Steadman, wore a tie to every class that bore the words "Nemo dat quod non habet." My Latin is a little rusty, but take my word that this means "No one can give what he or she doesn't have."
The general rule in property law is that I cannot transfer to you any more rights in property than what I have (or have the authority to transfer). You may be able to point to an exception or two, but that's the basic principle. Think of the classic example of Shifty Shafer selling the Brooklyn Bridge to Jed Clampett and you will get the idea.
The same general rule applies to intellectual property law and, especially, to licensing. Although someone can give you a license to use one of his or her articles, the license has no validity if, because of the work made for hire doctrine, his or her employer is the actual owner of the copyright. The license you received provides you with no protection from a claim of infringement by the actual owner (the employer).
My approach to licensing, in general, grows out of the following principles:
If I don't have the underlying ownership (or right to sublicense) of an intellectual property right, I can't license that right to you.
In the case of doubt, the presumption is that the license does not allow you to take the action you want. In other words, courts do not usually find that you have implied rights under a license. If you have a license only to "reproduce" a work, it will not be implied that you have a right to "make a derivative work."
If you want to do something specific, you do not want to rely on fuzzy and vague license language. Instead, you want to spell out clearly that you are allowed to do what you want to do. Do not rely on implications or generous interpretations.
In the comments to Denise's post on this subject, Phil Ringalda raises a very important question: what's the value of the CC licenses if you don't know that you have a valid right to use the materials? The CC home page also says, quite prominently, Publish your stuff, safely and legally, which can lead people to believe that the licenses are expansive and provide safety to users.
In version 1.0 of the CC licenses, the licenses favored publishers (and re-users) over authors and creators. In fact, there were warranties (a lawyer word think of "guarantees") that the licensor / author guaranteed that the publisher / re-user had the rights necessary to reuse the work. The idea was to make the world safe for publishers.
A number of people, including me, objected to this approach because of the burdens that it put on authors. Traditionally, if an author makes a work available for reuse for free, the author will want to provide no warranties whatsoever. That's the driving notion behind Open Source software and why the software is generally available for free.
Version 2.0 of the CC licenses dropped the warranties and became more favorable to authors than version 1.0 was. However, the CC licenses are no longer as comforting to publishers / re-users.
Now, I'm not going to opine, for obvious reasons, on any specific legal issues involving Corante and Between Lawyers, but let me talk briefly about the general issues raised when you see a CC license.
1. Who has applied the license? Realize that a CC license might be applied by only one of the people or entities that owns intellectual property rights in the work or website that bears the CC license. In many cases, the mechanism of applying the CC license will leave the answer to this question unclear.
2. To what does the license apply? Shelley's example is brilliant because it illustrates a common and plausible reading of the license and the manner in which it is applied. As a consumer, re-user or publisher of a CC work, I'd prefer to see the works to which the license applies spelled out as clearly as possible. As an author, I'd prefer to apply the license with as little work as possible, spell as little out as possible, and not limit my protections in any way because I spelled out one set of rights but left out another. There is a fundamental tension between the two approaches.
3. Does the licensor have the right to apply the CC license? This question gets to the heart of Phil's concern. I think that the real value of the CC licenses is that they take the "friction" out of common licensing transactions and reduce the need to track down authors / owners to get permissions. The trade-off comes in the lack of certainty and confidence that you have all the rights and safeguards that you desire. If the CC licenses went back to adding warranties or even requiring indemnifications, they'd be far less attractive to authors, but more attractive to publishers. In any event, I doubt that a court would decide that you had any protection from an infringement claim by the original author in the case where you relied on a CC license from someone who did not own the copyright.
4. How careful must I be in looking beyond the language of the CC license? Here's the potential problem, as you probably now realize. I find a CC licensed work and carefully study the language of the CC license. However, if the copyright owner has not applied the license, the license has not been applied to what I thought it was, or the licensor does not have the right to apply the CC license, your close reading may lead you to an unhappy result.
As I've mentioned, when I read posts from the Creative Commons blog , I'd like to see these issues being addressed, rather than self-congratulatory material and appeals to George Lucas to CC Star Wars. I've long been puzzled why the Internet community seems to be giving Creative Commons a relatively free pass on this while others get roundly criticized for nearly every move they make. In fairness, however, there are discussion lists on the CC site that seem to be reasonably active, although they are hard to locate and reach (in Firefox, I kept being bounced out to the home page when I clicked on the link for the discussion list on general licensing issues.
I thank Shelley for raising the subject for discussion and, although I kinda expect to be criticized for my approach to this issue, I simply want to start a discussion of the practical effects of the 15 million CC licenses floating around out there and urge that CC take a more visible (or at least more findable) role in addressing these types of issues.
NOTE: I enjoy Phil Ringalda's blog and his comments on this issue, especially after I figured out that he wasn't referring to me as "Hylton's pool boy." He says,, however: "So, please, if you will only listen to me once in this lifetime, *please* consider whether you have any ethical option other than to remove your CC license."
The purpose of the Between Lawyers CC experiment was to apply a CC license and follow and discuss the consequences of that choice. I believe that Denise handled the application of the license in accordance with CC instructions. Even though I hate statements that call me unethical unless I do what you want, I'll put that aside, and note that Phil's comment, as with all other comments on this issue, should be read completely and carefully.
I certainly had the most reluctance of the group in applying a CC license, but I like the idea behind the CC licenses. The devil, of course, is in the details. I'm committed to carrying out the experiment to a logical endpoint, which I hope means that we are able to get the word out on what these licenses mean and to help adjust them as needed.
If they will not work, however, then Phils comment that we all should consider removing the CC licenses does make good sense. Of course, then well get to figure out what happens when someone removes a license after people have already made use of the licensed material.
My nominee for clueful thought of the day from Bruce MacEwen: "Too flaky for your firm? If that's your reaction, are 'pens and paper' flaky? Email? Blogs and wikis are among the new tools in the technological arms race. Are you going to let your competitors steal a march?"
Shelley Powers has a new theme that rings a bit familiar. What do you think of her interpretation of the Creative Commons license we applied to Between Lawyers? If she's wrong, does she have a good parody argument? If we and/or Corante wanted to make sure the Web does not suddenly become a uniform, 3-column, red-white-and-gray place, would some minor adjustments to the notice announcing the BL CC license do the trick?
Birdfood for thought.
[Update:] Though Shelley makes some excellent points and she and I have been having fun, I had to go and get a little lecture-y about the risks of this kind of thing. And you should read the whole comment thread.
With my usual bit of disclosure that I'm on the board of the ABA's webzine Law Practice Today, I wanted to announce the latest issue, which is a "Best of LPT" compilation.
There are many great articles in this issue, but I especially recommend a roundtable article on electronic discovery that I put together with a who's who of experts in electronic discovery, with a strong focus on the practical issues involved in electronic discovery. It's called A Gold Mine of Electronic Discovery Expertise. Even though the article was written about a year ago, it's still the article I recommend as the place to start learning about electronic discovery. Fellow Between Lawyers author Denise Howell is one of the contributors to the article.
As an aside, It's been a joy to work with the team who have created Law Practice Today out of air and an idea, with no budget, and turned it into a powerhouse publication that has produced a treasure trove of great articles. I'm very proud of what we have accomplished.
When you see the word "public speaking" in a sentence, substitute the word "blog" to see if the sentence still makes sense (or is interesting):
1, Every law firm should have lawyers who do public speaking.
2, There should be public speaking risk assessment teams.
3. The consultant charges $500 a month to teach the firm's lawyers to do public speaking.
4, What will public speaking be like in 5 years?
5. Every lawyer has a moral obligation to do public speaking.
6. How will public speaking affect the practice of law?
When you see the word "golf" in a sentence, substitute the word "blog" to see if the sentence still makes sense (or is interesting):
1, Every law firm should have lawyers who golf.
2, There should be golf risk assessment teams.
3. The consultant charges $500 a month to teach the firm's lawyers to golf.
4, What will golf be like in 5 years?
5. Every lawyer has a moral obligation to golf.
6. How will golf affect the practice of law?
I was struck by the fact that a firm's exposure to errant golf shots and bad behavior on the golf course might well exceed the dangers of lawyer blogging. Oh, where is the outcry and the call for golfing policies?
When you see the word 'blog' in a sentence, substitute the word 'brochure' to see if the sentence still makes sense (or is interesting):
Here are some starter sentences:
1. Every law firm should have a blog.
2. There should be blog risk assessment teams.
3. The consultant charges $500 a month to write the firm's blog.
4. What will blogs be like in 5 years?
5. Every lawyer has a moral obligation to blog.
6. How will blogs affect the practice of law?
Dennis writes that, despite his far from meager intellect and his best efforts to be a good soldier, he doesn't "have a clue about what you can and can't do anymore" regarding being a lawyer and being on the Web, and prays for rules that make sense for 2005 and beyond. Amen to that. Two quick hits as well in response:
An old post of mine discussing the blurring of distinctions between the personal and professional online, and the failure of the ethical rules to keep up: "[W]hat's a 'blawger' to do?"
In the ad, the Florida firm had the unmitigated audacity to use a print ad that featured a row of ice cream cones, with the final ice cream cone in the row (note to lawyers: this ice cream cone metaphorically represented the law firm) having three scoops of ice cream rather than the single scoop found in the other cones.
However, it was neither the use of pictures nor the use of metaphors that caused the concern.
The ad had a tagline that said: "expect more from your law firm." No, it wasn't even the lack of initial capitalization that caused the problem.
Instead, the problem was this: "the phrase 'Expect [sic] more from your law firm' created 'unjustified expectations about results the attorney can achieve' and 'compares the services of one attorney to another without factually substantiating the comparison.'"
In a nutshell, there you have the lay of the land in the sometimes incomprehensible world of lawyer advertising.
The good news is that the Florida authorities reversed their decision. The bad news is that there is a regulatory environment that provides disincentives for lawyers and law firms to use any kind of normal (meaning "effective") advertising methods while seemingly ignoring what would seem to be violations of advertising rules if you could even figure out what the rules mean.
I've complained about this state of affairs before (here, here and here, for example). My belief is that it is too difficult for a well-intentioned law firm or lawyer who wants to comply with all of the rules to have any confidence that they have done so with any level of confidence.
I've also studied and tried to comply with the advertising rules for lawyers for the ten years that I've had a website. I wrote about and spoke about these issues nearly ten years ago. I think I know the rules and the decisions interpreting these rules pretty well.
And I don't have a clue about what you can and can't do anymore. The wheels on this train went off the track a while back and it's time to give some thought to getting things back on a track that makes sense for 2005 and beyond. Who was being protected by the first decision of the Florida authorities about teh ice cream cone ad?
Here's a quiz. Can you spot at least three issues raised by the following seemingly innocuous description of a law firm and its services under common interpretations of the ethical rules covering lawyer advertising?
XYZ law firm is a national full-service law firm with offices in the eastern United States. XYZ has the breadth and depth of resources to deliver the highest quality legal services to a broad range of individual, corporate, nonprofit and government clients.
(1) Use of term "national" when they only have offices in eastern US.
(2) "full-service" has been considered an inaccurate, misleading term, based on the reasoning used with ice cream cone ad.
(3) "highest quality" is, of course, not objectively provable and at least implies a comparison to other lawyers.
You may have additional answers.
What, then, is the purpose of these rules and do they (and state-based regulation in general) make sense in 2005? I simply ask the question.
I agree with everything my cohorts have said about the value of blogs in general, and of law blogs in particular. Obviously blogs are, at their core, nothing more than an easy-to-use communications tool. But the successful ones require a certain kind of committment, which is why the blog craze was incubated by passionate individuals rather than corporations or partnerships. Corporations and other legal entities don't possess passion, although they may employ people who do. The best corporations harness that passion.
The corporate-type blogs have been growing in number and they'll keep growing. And just like the individual blogs some of them will be well-done and interesting while some will fall flat on their faceless faces. But even the corporations that like to operate behind a committee-created mask will learn that when the clock strikes twelve, and the costume party ends, the masks have to come off.
My law firm has experimented with blogging, and at some point we'll develop a full-fledged blog strategy. When we do, we'll probably do it very well. After all, we have the desirable (and accurate) reputation as a place where good lawyers do serious work without taking themselves too seriously. For now, the fact that I blog is good enough for our firm. But eventually we'll feel more pressure to have a firm-sponsored blog. The pressure will come when other Louisiana firms start blogs. Just like this firm in Baton Rouge, which has just recently started a weblog called Louisiana Law Blog.
How quickly will law firms move to develop weblogs? It depends on a lot of internal and external factors. But the clock is ticking. And for some firms that sound is loud and annoying; for others it is stirring and prompting them to act. When will your firm create a blog?
Is it too early to think about the virtual practice of law? In bringing together lawyers from across the country, blogs have made it possible for lawyers to communicate and collaborate with each other across physical boundaries; it will only be a matter of time before these folks begin to truly test the limits of "multijurisdictional practice."
See my "should every lawyer and law firm" answer. If you're going to do it, write about what interests you. Write often. ("Often" is subjective.) Write briefly or lengthily as the subject warrants and time permits. Point to and comment on things that delight you, depress you, or piss you off. Float trial balloons, test secret theories. Observe and report, with common courtesy and discretion. List and chronicle. Above all, be yourself. Give yourself permission to be personal, quirky, and passionate. It's often not that easy (especially for those in the sometimes rigor bound profession of law), but it's invariably the best stuff you'll write.
Ditto to what Denise said. I'll be interested to see how many law blogs that we see today are still around then. I have been keeping track of new blawgs through my "Blawg of the Day" at Inter Alia since 2002. During that time, I have tracked more than 500 law blogs, and I have also kept track of some 150+ other law blawgs through sites like Blawg.org and Blawg Republic. I was expecting to find a pretty high turnover rate among lawyer-bloggers, but that was not the case. Of the blawgs I have been tracking, almost 85% are still going strong.
Of the blawgs that are not active anymore, I found that the average life of these blawgs was just over six months. So I've been using that period of time as a benchmark -- separating the dabblers from the blawgs that will likely be around for some time.
Dennis makes good points in response to this. Blogging will make more relevant, quality legal information more readily available, which will put its own pressures on the practice. It will serve to make clients and members of the profession increasingly better informed about resources and options.
My answer: Yes. I largely agree with both Dennis and Denise on this, but I think it's almost impossible to answer this question -- they will all play an important role. Blogs will become even more mainstream for the casual reader, who I don't think will be ready for Blogging 2.0 by that time. Denise, I agree that the idea of blogging without syndication is silly, but syndication without blogging.......?? The power of the RSS feed is where we are headed -- just see what the folks at FeedBurner are doing. It's not all about blogs, and it doesn't have to be.
Weblogs (legal and not) began as solo activities -- individuals wanting to find their own particular voice on the Internet. The medium has evolved, however, to allow for and encourage collaboration between bloggers -- as Dennis intimates with his "virtual law firm," this has tremendous implications for the future.
Early and visionary blawger Rory Perry, the clerk of the Supreme Court of West Virginia, coined a phrase a few years ago: "Building the new Blackstone, blog by blog." That will start to really come into its own. I expect the increasing uptake and popularity of blogging and related Web distribution tools will continue to break down barriers between the public and the legal field, and build bridges between its constituent parts.
Though people (myself included) often talk about the potential for blogs to humanize and improve the perception of a much maligned profession, the fact is they'll also continue to expose unpleasant and unsavory aspects too. There will be great opportunities for firms and other institutions to engage in real conversation and hopefully accomplish meaningful change about common areas of criticism and discontent. There likewise will be opportunities to look foolish, be ridiculed, and lose business and goodwill for firms and institutions that mistakenly conclude they can afford to turn a deaf ear to these voices.
Hard question, they're all important. I'll rank them though as follows.
First: Blogs. Ordinary, mostly nontechnical people like lawyers need an easy way to participate in online discourse, and it's important psychologically somehow (and useful from a practical standpoint) to have a "place" that's all your own.
Second: RSS. It's hard to separate this from #1, because the idea of blogging without syndication, especially given the capabilities of the blogging tools available today, is just silly. Syndication of not just text but audio and video makes whatever it is you have to say extremely user friendly. This is Good for all concerned.
Third: Collaborations among bloggers. It's hard to separate this from #1, because it's hard to blog in a vacuum. But active collaboration adds another layer that perhaps not everyone needs. If all your schedule permits is posting your insights from time to time to a (syndicated) blog, that's great. You're already collaborating and communicating across organizations and disciplines in a way you couldn't have done without blogging.
The Landrush where someone could claim a whole sector of the law as their subject is almost over but not quite. Oddly, we saw the first practitioner-authored blog in Copyright Law only this week. On the most part however, we will see differentiation from here on in - by speciality, location and other forms of differentiation that will mirror the way lawyers brand themselves.
We are also seeing aggregation, Between Lawyers and ReThink IP being two early examples.
And we are seeing corporatization - the Law.com network being an early example.
Not number of readers, and not dollars in the door. If it's useful to the writer and interesting or helpful to even a tiny universe of readers, it's a success. If you think that's too forgiving a definition, consider 1) the trivial or nonexistent cost of getting a blog out there, and 2) the ease and speed with which you can reach a literally global audience. Small investment + disproportionate return = success. Of course, the more time, thought, and effort you put in to creating something compelling, the greater will be the return.
No, it's inaccurately hyped. Main stream media likes to cover blogging for a variety of reasons, including that the volume is beginning to be such that it'd be irresponsible to ignore it. Blogging also is "new" enough that there's some shock and sensationalism to be milked from the coverage ("Your employees are blogging your company secrets! Film at 11:00"), and there's still the unfortunate tendency by media outlets to treat weblogs like something in the sky over Roswell, NM — interesting but hokey. The best writing about blogging is the product of those who have done their homework and/or have firsthand experience (e.g., BusinessWeek, Dan Gillmor, Online Journalism Review). And from those sorts of sources, you're less likely to get hype and more likely to get a straightforward assessment.
Any way I slice this question the answer is no, but I get there sort of circuitously.
Not every lawyer should have a blog, because not everyone is predisposed to processing and sharing information in the way blogs facilitate. Lawyers who answer "yes" to more than one of the following questions but don't have a blog should think about starting one:
Do you read or otherwise take in many materials related to your practice, above and beyond what strictly speaking you need to get through your daily workload?
Does your practice put you in places and situations that don't get much or any news coverage, but you think others might nonetheless find interesting or informative?
Do you email colleagues items you think they might want or need?
Do you make lists? (Mentally or otherwise.)
Do you spend much time using search engines?
Do you write about legal issues or developments for print publications or other outlets?
Do you hate the idea of keeping extraneous paper around, but like being able to find and refer to things you've read and found significant for one reason or another?
Do you like staying well informed about developments that affect your practice and your clients' lives and businesses?
Do you have a sense of humor?
Are there one or a few substantive areas of the law you know pretty well, or better yet, very well?
Are you sufficiently professional and comfortable in your skin that you will link generously to material — including competitors — that's not part of yourlawfirm.com without worrying that you'll never see that reader again?
Are you sufficiently professional and comfortable in your skin that you will publicly acknowledge and correct mistakes?
Do you think your clients, potential clients, and colleagues probably already get more email and paper mail than they'd like?
Are you less than thrilled with your ability to manage your conventional practice-related Web site and keep it up to date? Are you less than thrilled with its ability to get your message out to colleagues, clients, and potential clients?
Are you willing to engage in public discourse with people you don't yet know that will raise your profile and sharpen your writing and thinking, but might not translate directly or immediately into paying work?
Are you basically a good egg? (Lawyers who think hiding associate contact information is a good idea, for example, might not be the best candidates for blogging. Then again, it could prompt some sort of "born again" epiphany.)
Law firms are a different story. Before a firm decides to publish one or more weblogs, it and its prospective bloggers in residence (and I do hope they are "in residence," rather than commissioned for the purpose of generating weblog posts) had better be able to answer all of these questions affirmatively. Law firms (like all businesses) aren't a who, they're a what, and blogging (when done effectively) is a who-oriented pursuit. All the firms to date I've seen successfully embrace blogging are small or solo shops. I'm not saying a large firm can't do it, I just think there are more hurdles to overcome in that setting. Until weblogs are mainstream enough that thoughts like these are a quaint anachronism and people just know what works well and what doesn't, businesses (including law firms) should think hard about whether they've got what it takes to do a good "official" blog. If not, following in the footsteps of Microsoft, Sun, and Harvard is worth considered thought — i.e., we're not people but we've got people, spectacular ones, here they are. (I'm also assuming this question was aimed at public blogs. I think most law firms would save all kinds of time, money, and lawyer brain cells by replacing their existing intranets with a network of internal, syndicated, well-indexed and searchable blogs.)
Dennis is absolutely right about content, so I won't spend time talking about that. My thoughts:
1. Frequent updates. Providing that great content on a regular basis ensures your audience will keep coming back for more.
2. Legalese. A blog post should be conversational, less formal than what you're used to in motions or briefs. Lighten up and have some fun.
3. Publicize Your Blog. Even if you regularly post terrific content in a light, conversational style, it won't matter if no one knows you exist. There are a couple of ways to do this. The best and most obvious is to announce the blog a select group of law bloggers -- this will usually guarantee you instant exposure, because everyone likes to announce a new, cool blog. Also make sure the major blawg directories (Blawg.org and Blawg Republic) know you're out there.
Yes. There has been so much blog-mania lately, most people roll their eyes when I start to talk about blogs. I hope (in the legal space, anyway) that the negative reaction will ultimately be replaced by a realization of the benefits of blogs.
I mostly agree with Dennis about RSS -- while I believe that RSS feeds are the future, and blogs are just the fancy window dressing for the technology, it's the weblogs that will draw the readers in. If you tell the average internet user and potential client that the Smith & Jones firm has 3 RSS feeds on different legal issues, his or her eyes will glaze over with confusion. Show them a blog, however, and you can hook them with the RSS later.
The question here should really be, "Is it a Good Idea for Every Lawyer and Law Firm to Have a Blog?" The answer to that, I think, is yes. However, the answer to the question stated is "No." Blogging is not for everyone; if you are going to start a law-related weblog, be prepared to invest the time and energy necessary to making it a credible Web presence. Lawyers who either don't have the time to write posts, or who post very infrequently, should not undertake the effort. A poorly-maintained weblog understandably will have the opposite effect of a well-written, frequently updated weblog: the blogger will lose credibility with her/his audience.
In other words, don't just have a blog so you can say you have a blog.
1. Marketing potential - by publishing regularly-updated content in your area of practice, you will become known as a "go-to" person in that field. Clients and would-be clients will (hopefully) send you work because of the valuable information you provide to them, and other lawyers who read your blog will refer work to you because you are a trusted authority in that area of law.
2. Becoming a Better Writer -- I know that I have become a better writer overall since I started blogging. It forces lawyers to drop the stuffy legal-speak that infests so many briefs and motions.
3. Collaboration, and Being a Part of Something Bigger Than Yourself - the law bloggers I know are people who "get it" -- people I never would have met were it not for my weblog. If it weren't for weblogs, would Steve Nipper (Invent Blog), Matt Buchanan (Promote the Progress), and Doug Sorocco (PHOSITA) have gotten together and started rethink(ip), which discusses how to change the way we think about intellectual property law? Would the five of us have ended up talking here every day about issues that interest us?
I agree with Denise -- the field for weblogs is wide open. I have always believed the "niche" weblogs -- those following a particular area of law - are more likely to be followed by "regular" internet users than the more general blogs, law student blogs, etc. The average internet user will not be as voracious a reader of blogs as those of us who are early adopters; but the average user will, I think, take the time to receive information that is useful to them in their practice, whether it be practice area-specific or more related to the business of running a law practice.
So as long as lawyers are putting out quality content regarding their practice areas, the demand should continue to grow. Right now large firms are underrepresented in the "blawgosphere," but I expect/hope that will change as more law firms recognize the numerous benefits of blogging.
Easy, effective, fast, flexible, well-organized, persistent, participatory, distributed communication at marginal cost. Non-weblog oriented Web tools have a tough time competing on any of these factors.
Exposure to a flattened cross-section of others' thoughts, musings, research, analyses, etc., to which you would otherwise be oblivious, some of which at any given moment is precisely relevant to whatever it is you need or want to be doing. (In other words, not just youroutboard brain, but everyone else's.)
I'm guessing there must be well over 1,000 weblogs maintained by legal professionals, given that the Blawg Ring includes some 650, and probably only a small percentage of those out there submit to or are listed in directories. If I'm right, this means more than a hundredfold increase in the number of legal weblogs since I started paying attention to such things in early 2002.
I see no sign of this growth slowing down, and no reason to think there can ever be "too many" weblogs of any kind, legal or otherwise. Every author or group of authors has perspective, knowledge, expertise, talent, interests, etc. that are totally unique, and of immeasurable value to those who want or need access to that precise informational blend. In other words, it's a great time to start a law oriented weblog. There's a considerable frame of reference for what people are already doing, yet enormous room for innovation and perhaps an infinite number of interesting niches to help fill.
We all are in awe of Sabrina Pacifici, who started her blog, BeSpacific.com, by blogging on a daily basis in private for several months before launching her blog publicly. That allowed her to launch a blog with a substantial archive of posts and prove that she could develop a routine of regular posting. With that kind of commitment, there's little wonder why long-time legal bloggers consider Sabrina the best of all the legal bloggers.
My advice grows out of that story.
1. Be serious about your purpose and commitment.
2. Treat your blog like a publication and try to have enough material written in advance to carry you through some of the lean days of your first few months.
3. Learn about the blogging culture and treating it with respect.
4. Be concerned about what you can give and contribute with your blog, not what you can take.
5. Be brave enough to reflect your personality and develop a voice.
6. Think of blogs as a means of communication, not just another form of marketing.
When I was writing my first article for publication nine years ago, I never imagined the writing career that article would launch for me. I simply don't know where blogging will lead me. I'd be surprised if my blog didn't still exist in five years, but I'm not sure what it will look like or if it might be more audio or video than text.
I don't think people appreciate how hard it is to write regular content for a blog on a regular, often daily, basis. It's difficult and it has to become part of who you are in the same way that regular exercise or a hobby must be for you to stick with it.
Of course, the more blogging can turn into something that generates income, the easier it will be to keep blogging.
Blogging (or, perhaps more accurately, bloggers) seems to force the pace of change and increase the pressure on institutions to make changes. I think that biggest pressure from blogging will be placed on the state-based regulation of legal practice.
Blogging will also put increased demands on firms to provide incentives to retain their best talent. Both clients and lawyers will question the role of firms. What happens when a client comes to you for a problem that you know can better be handled by a blogger you know than by your partner down the hall?
Unlike the evolution of legal websites, I expect blogs to continue to focus on subject matter expertise and resources rather than have a focus on individual law firms.
I also expect to see blogs used to enhance communications with clients and non-clients. Blogs will almost inevitably lead to new approaches to the online delivery of legal services and the creation of products for sale, new lines of business and other innovations.
I really like blogging, but I've always said that blogs are the side show and RSS feeds are the main attraction. Lately, I've starting to talk about "Blogging 2.0," which is the current period in which bloggers are starting to cooperate on a variety of projects. When people look back on this period of legal blogging, I think that the focus will be on the projects that grew out of these collaborations rather than on blogging itself. For example, if we ever see something everyone would agree is a "virtual law firm," I have little doubt that it will have grown out of the efforts of bloggers.
Most of the tried and true requirements for a successful law firm website also apply to blogs. You must have quality, compelling content that gives visitors a reason to return. Most successful blogs have these factors and they are also well-written and have an identifiable and attractive personality and voice.
The successful blogs also give you a strong sense of generosity and helpfulness. Blogs that have "official" or "institutional" voices have not been successful to-date. Our own experience with group blogs leads me to question whether a law firm blog will be successful without a significant amount of planning and a willingness to allow contributing lawyers to have a large amount of freedom in what they write.
You might ask Dan Rather. We are certainly in a period of a negative reaction to some of the inflated claims that have been about blogging. I can tell you that the impact of my blog on traffic to my website and my search engine rankings has been amazing and I've certainly gotten other benefits from blogging.
In spite of that, I think that the emphasis on blogs as a marketing technique is generally misplaced. Blogs, like websites, may be an important part of the overall marketing portfolio for some lawyers or firms, but if you put all of your marketing efforts into blogging, I'm not sure that you'll be able to pay your bills.
For law firms, I would argue that a strategy based on RSS feeds makes much more sense than a strategy based on blogs. The trail of legal blogging is littered with the dead blogs of law firms.
Legal Internet guru Jerry Lawson has said that blogs will be great vehicles for a small percentage of lawyers, moderately good vehicles for perhaps 10% to 15% of lawyers who try them, and disasters for the great majority of lawyers who try them. I agree with that.
Blogs make the most sense for writers, especially for writers who can write on a regular basis and are generally comfortable with writing for a general audience. I don't know a lot of lawyers who fit that description.
The first benefit is that you can create a good-looking, content-rich website without learning any HTML or other coding. If you use a hosted service, such as Typepad (http://www.typepad.com), you can simply choose one of their templates and have a great website for under $15 a month.
The second benefit is that a blog can give your practice a voice and a personal presence. Because blogs consist of regular "posts" or short essays, many blog authors express their personalities and share their experience, expertise, insights and ideas. Many bloggers provide genuine helpful information and tips.
The third benefit is that bloggers are, for the most part, incredibly generous and helpful. As a blogger, you can gradually become part of the world's greatest network. I regularly talking on the phone or exchanging emails with some amazing people at the top of their fields who are also bloggers.
While there are probably fewer legal blogs than most people expect, they have captured a lot of attention. A recent survey indicated that legal blogs are a well-recognized segment of all blogs.
Individual lawyers, law librarians, law professors and law students have created almost all of the best-known legal blogs. Blogging experiments by law firms have yet to show long-term success. There is a general feeling that legal blogs have improved the reputation of lawyers, at least to some extent, among Internet users.
Blog is derived from the phrase "web log" or "weblog," which got shortened to "blog." The term "blawg," coined by Denise Howell, is a similar contraction of "law blog."
The simplest definition is that blogs are the most effective form of web presence you can have in 2005. The technical definition is a little more difficult to pin down and you can find many different definitions. See, for example, the list at http://www.elearnspace.org/Articles/blogging_part_1.htm.
A blog is a template-based website created by a simple content management program generally characterized by a set of standard features, the most common of which is a set of time-stamped "posts" displayed in reverse chronological order. Other common features are calendars, archives, news feeds, search tools and comments.
Legal blogs include blogs by practicing lawyers, law librarians, law students and law professors. They cover a broad range of topics. We estimate that there are between 500 and 1,000 active legal blogs, some of which are very well known and have surprisingly large audiences.
Merrilyn Tarlton at the ABA's Law Practice magazine has asked the Between Lawyers group to write a roundtable discussion article on the future of legal blogging. So, for the next couple of days we'll be writing the article in public using this blog.
While we have drawn our inspiration from the "blogging in public" book projects like The Red Couch, our project is less ambitious and, for us, more realistic. An article should be easier to write than a book.
I'll be posting a number of questions for each of us to answer and Tom will be pulling all of the posts into a finished article.
We hope that we will remember to construct the article by using "RE:" posts for each question and you'll be able to follow the threads. We may also use the comments feature and, of course, invite your comments.
Remember that the exercise here is create an article and each of us will be contributing parts of the article. Please consider this before you take someone to task for not providing complete answers or for neglecting certain issues that someone else might cover.
We'll post a link to the final article when it is publised.
But today's improved technology has introduced another wrinkle to this problem: missed deadlines due to e-mails mistaken for spam by filtering software. A recent study in the United Kingdom found that "false positives" caused four in ten workers to miss a deadline. Wow -- 40% is a significant number. I am aware of at least one case where a spam-blocker caused an attorney to miss a status conference; fortunately, the lawyer did not get sanctioned for his conduct.
How to avoid this problem? There are two ways, as I see it. First, make sure your spam filter is using "white list" technology, so that approved e-mails always get through. Second, firms that don't use white list technology should consider giving users access to their spam quarantine folders.