We here at Abnormal Use, a baby in the legal blogosphere at only three years old, certainly understand the commitment required to maintain such an enterprise.  However, the diligence and discipline needed to maintain a blog for more than ten years – like Steans and Olson have done – is quite a feat, no matter the topic.  Accordingly, we applaud Steans upon reaching this milestone.

Steans is a long-time friend and former college classmate.  His blog typically centers around popular culture and events from his daily life.  His posts are often much longer than those you see here on Abnormal Use, and although he does not post every day, he posts often enough to suggest that it is, indeed, a full-time job for him.

What is interesting about his site is the manner in which he has created a community of readers.  That is quite an accomplishment, as many blogs come and go, live, and then die, without attracting much of a readership.  Steans, in the manner in which he writes his site, offers shout-outs to readers and encourages conversation.  Surprisingly, readers of his site – who had no previous connection to each other – have met and become friends after becoming initially acquainted on Steans’ site.  That sense of community, in part, is what has allowed Ryan’s blog to endure as long as it has.

We here at Abnormal Use have taken several lessons from Ryan and his long-time blogging experience.  We here try to foster a community of readers, both by adopting an informal style of sorts but also by utilizing social media in such a way to prompt interaction with our readers.  We are still working on that, and like any blog, this is still a work in progress, even three years in.

To date, we here at Abnormal Use have authored almost 900 posts.  We look back on that with some level of pride, and occasionally, we will peruse some of our favorites years after they were published.  In his own posts observing his milestone, Ryan remarks that he has authored “around 5,000 posts.”  There is something existential in his account of his site’s first decade, as he pauses to reflect upon some of the lessons he has learned in maintaining the site from his late twenties to his late thirties.

We congratulate him on this milestone.

One day, we promise to reply to the 30 comments to our post about the potential biases of Hot Coffee documentary filmmaker Susan Saladoff. Perhaps, we will finally find the time to respond to one reader who asked:

By the way, exactly how much are you being paid for that “obligation”? I’m very interested in that “pesky little detail” of yours.

Sigh. Soon, we will let her know that we do not represent McDonalds, but we would love to do so, if she could get us connected.

Maybe, when we have a spare moment, we will respond to this comment, posted a year and a half after our story:

WHO WAS TELLING US THAT STORY [Stella Liebeck lawsuit]????? Why is it that Nick Farr, and the others who have posted demeaning and insulting comments about Susan Saladoff, did not ask themselves that question? Why is it that these folks did not ask themselves what the motivation was for the people who decided to circulate that total distortation of Stella Leibeck’s case?

When we have time, we will let her know that our goal has always been to put forward as much factual information as is available on the McDonalds case regardless of the “side” it discredits. It would also probably help if we pointed her to our expansive – and objective! - FAQ on the issue.

One day, we swear to finally chime in on the 33 comments to our Hot Coffee review. We need to respond to those comments that cited our jobs as defense lawyers and claimed that we were advocating tort reform via film review. We promise to give each of those the attention it deserves. We especially need to respond to this reader, who writes:

Remember the victim and take your beating like an adult.

We will finally let him know that the writer was a mere 14 years old and was more concerned with the perils of puberty than passing the New Mexico bar exam when the Liebeck verdict was rendered. As such, he takes no credit for the “beating” that occurred in the courtroom in 1994. Unless, the reader was referring to the fraternal order of defense lawyers in which we all share in each others losses. Once we have a moment, we will let him know.

One day.

One day, we will respond. We really will. We appreciate your comments and encourage the continued dialogue. One day, we engage in these debates. Just not today. Back to work.

Case in point.  Recently, I received a notice by email and in the mail that there has been a recall on Bumbo Baby Seats.  If you have no idea what I’m talking about, here’s a picture of one of these contraptions before the recall:

Now, I know it looks like a medieval torture device.  It’s not.  It’s one of the best baby products ever invented.  You put your not-quite-sitting-up-infant in the seat and WHAMO!  He can sit up!  The seat is light, and babies love it.  One important thing about this seat, or at least I thought, is that the baby is so wedged into the chair that he can’t tip it over, or tip himself out of it.  Both my sons have used the Bumbo, and neither one has ever tipped out of it.

Even before the recall, there were warnings.  Users are told not to use it in the bathtub or on raised surfaces, and there is also a warning to always watch your baby when he’s in it.  Well, it appears that wasn’t enough.  Apparently, some babies more determined than mine did, in fact, succeed in tipping themselves out of the Bumbo.  So, the company has issued a recall, and this is what the seat looks like since the company added a seatbelt:

And, of course, there is a new warning label to be affixed over the old one, something called “repair kit instructions,” and a video about how to properly use the Bumbo.

I know I’m being flippant.  Many infants and children are injured every year when products made for them are misused, or even when they are used properly (thus the recalls).  I’m not trying to trivialize those cases.  I do, however, see this as an example of the common sense filter I talked about in that prior post.

A quick comparison of the warnings included with the Bumbo prove my point.  The warning not to use the Bumbo in the bathtub is quite helpful–the seat resembles another product that is used to help a child sit up in the bathtub, and I can see how someone might confuse the two.  But an instruction not to leave the child unattended?  And a warning not to put a baby in the seat on a raised surface?  Come on folks.  That’s parenting/child care 101.  Those types of warnings are the worst, because they give us an excuse not to think for ourselves.  We get lazy, and believe that we need to be spoon-fed our own common sense.  We should expect–and want–better for ourselves.

I can remember reading Overlawyered in the law library of Baylor Law School in Waco, Texas way back in 2000.  (Ah, the days of yore and legal studies.). Considering the amount of work involved in perpetuating a blog, it is amazing that the site has endured as long as it has, especially in light of the fact that it is run by just one person: the indefatigable Walter Olson.

2002, though, was the year blogs officially burst onto the scene, and a handful of sites that began that year celebrated their tenth anniversaries this year.

However, many of the blogs that began that year – or in the years that followed – have sunk into the depths of the Internet ether. I recently stumbled across an old folder of Internet bookmarks from the 2000-2002 timeframe, and most, if not all, of those websites are now lost to history.  So too are many, many forgotten legal blogs, which began years ago and failed or died somewhere along the way.  But blogs like Overlawyered and others have long endured, and it’s fascinating to chart their evolution.  One of the joys of a blog’s archives is that a reader can revisit commentary and case law and trace the origin of issues over the past ten years. We can learn legal history from a blog’s archives, just as we could from a collection of a newspaper writer’s collection of editorial columns, and there’s some great value in such a repository of wisdom and commentary.

But, all this got me thinking about the nature of the legal blogosphere and how blogs evolved and what the future has in store for them. Are their efforts to preserve the state and federal legal commentary that has accumulated over the past decade?  Are there really readers who revisit blog archives to ascertain how issues were debated and consensus evolved?  With courts themselves now citing blogs, what efforts are being made to preserve and protect those entries? What use is a court’s citation to a legal blog entry if the blog no longer exists? What can we learn from 10 years of blog posts and accompanying reader commentary?

We here at Abnormal Use do not have answers to these questions.  We’ve only been doing this blogging thing for two and a half years. But they are questions worth asking.

The enthusiasm of a new law blogger is unparalleled.  When a lawyer decides to blog, he or she has much to say and to offer potential readers.  Often, the new legal blogger already has several – perhaps even half a dozen – potential posts in mind.  In fact, it is that initial multitude of post ideas which prompts the desire to create a blog in the first place.  But, inevitably, as days pass, weeks go by, and weeks become months, the initial joy of blogging – like most other things that once made us happy – becomes a chore.  Sadly, the once promising blog evolves from a labor of love to a non-billable business development task, which typically falls to the bottom of the stack.  After all, non-billable work – particularly tasks which do not involve direct contact with actual or potential clients – must come second, third, or even fourth to other such plans.  This is why so many blogs die early deaths and why the legal blogosphere is full of blog graveyards.

There’s lot’s more, so click here to read the rest, which includes some suggestions on how to keep writers interested.

Certainly, one of our frequent topics of discussion is the infamous and controversial Stella Liebeck McDonald’s Hot Coffee case.  Our posts on that topic have generated much debate.  Our review of Plaintiff’s attorney Susan Saladoff’s Hot Coffee documentary earned 30 comments, while our initial preview of the film and highlighting of Ms. Saladoff’s background as a trial lawyer received 25 comments.  Our objective FAQ file, which we assembled using the original pleadings, motions, and contemporary news coverage of the case, drew seven comments.  Even the post we authored calling for Ms. Liebeck’s attorney Reed Morgan produce the trial transcript of the case merited 11 comments.

And there’s more.  Even though some of these posts are months old, or even a year old, they continue to receive comments to this day.  Even our post commenting upon Ms. Saladoff’s appearance on “The Colbert Report” still gets a comment or two months later.  One such comment to that post, submitted by a Houston lawyer in late January, is as follows:

I’m amazed at the extent to which your law firm, years later, continues to cheer for a team that lost at the expense of public faith in a justice system that worked — whether you agree that it worked, or whether it serves you in particular, or not. There are salient facts on both sides of this issue. Yes, the coffee was very hot. Yes, she sat in it for 90 seconds. Yes, people should know coffee is hot. And yet, McDonald’s knew its coffee was dangerously hot and callously treated the risk to Ms. Liebeck as a mere cost of business. All of this evidence was heard by the factfinders, the jury. What matters now is that the factfinders heard the evidence — from both sides — and made a decision based on the evidence and the law it was charged to apply. As a member of the bar who has taken the same oath that (I presume) the attorneys in your firm have also taken, I think your continued biased commentary is irresponsible. I’m not saying that you don’t have a constitutional right to say it (questions regarding attorney ethics rules notwithstanding); you probably do. But I think you’re doing more harm than good to our legal system by doing so, and it’s ethically and morally irresponsible to continue to cry about how this jury was wrong and our system is broken simply because they dared to conclude differently than you would have them conclude. I would expect your biased editorialism from a college newspaper, not accomplished members of the bar.

Gee whiz.  For one, if every jury verdict is sacrosanct and immune from criticism of any kind, that’s going to put a lot of appellate lawyers out of business. Sure, we expect criticism and disagreement; that’s part of putting ourselves out there in the legal blogosphere. But our analysis and commentary on an infamous jury verdict is “irresponsible”?   Possibly unethical? Really? Can we no longer analyze and have some fun re-litigating a case which appears to have been misrepresented in the media by those from varying backgrounds, and before our acquisition of the pleadings and motions, discussed for years without reference to the original underlying documents? It’s harmful to our legal system to look back at reevaluate some of the decisions made by the lawyers, the trial court, and the jurors and gauge whether they were right or wrong? Must we consider those jurors infallible?

Sigh. I guess that’s what we get for engaging in this blogging thing. (And by the way, “biased editorialism”? Is there any other kind?)

Or, maybe we just hit a nerve and our making some points that those who have a vested financial interest in the jackpot justice system would prefer that we not make.

We continue to marvel at those bloggers that Kennerly places into “the mainstream,” which he describes as a group of blogs engaging in news gathering, objective reporting, and the collection of legal links and analysis.  These are blogs like SCOTUSblog (whose recent acquisition by Bloomberg prompted Kennerly’s post in the first place) and even Howard Bashman’s How Appealing, the grandfather of mainstream legal blogs.  How practicing lawyers can assemble the material for these mainstream blogs is quite a feat:  they cannot miss a beat or news development occurring in the subject matter they cover.  If they do so, their credibility is threatened and so, they must constantly dedicate resources to the blogs to provide the latest news on their chosen subject matter.

That’s a Herculean task when one is trying to simultaneously run a law practice.  We suspect there are a host of lawyer writers out there who once intended to engage in legal mainstream blogging but burnt out quickly due to the high demands of the enterprise.  We offer our most sincere kudos to those who are able to maintain such blogs.

It’s a bit easier to run a “personality” blog, as contributors to such enterprises can pick and chose their topics as they please.  They need not fret about objectivity.  They can inject a bit of editorial style – even sarcasm sometimes – into their posts. However, personality blogs still face the difficult challenge of providing timely, interesting, and engaging commentary on the area of law they have chosen to discuss.  Here at Abnormal Use, we have posted every business day since January of 2010.  That’s no small feat, even if we do say so ourselves.  We have a dedicated staff of thoughtful writers here without whom this enterprise would be impossible.  We are not sure that we could engage in the type of personality blogging we do if there were fewer contributors, or if there were but one contributor.  In sum, there is strength in numbers.

Finally, the marketing blogs that Kennerly discusses are, as he suggests, sometimes irksome.  Somewhat spam like, they clutter the blawgosphere with a curious melange of general related news and lawyer advertising.  We don’t have much to say on those types sites or whether they are written by lawyers or marketing professionals.

The thing that interested us most about Kennerly’s post was his suggestion that personality blogs tend to engage each other more frequently than any other type of blogs.  To us, that’s part of the point of the blawgosphere. We enjoy engaging in discussion with other lawyers and law blogs.  As we previously noted, this enterprise has allowed us to meet other lawyers across the country and discuss not just blogging itself but also substantive legal issues.  We are always looking for more law blogs to read or bloggers with whom we can discuss products, or even general legal issues.

That, we think, is the chief advantage of blogging as marketing. Bloggers find themselves in discussions, friendly debates, and conversations with other lawyers across the nation they never would have met otherwise. Those conversations lead to meetings in person at conferences and the like, and often, transform into actual friendship.  That’s not such a bad thing.

This project would certainly not have been possible without the support of our firm. We have a handful of different writers, all with different styles and interests, and we think that is at least part of what makes this site successful. Kudos go to our two principal authors Phil Reeves and Stephanie Flynn, as well as our associate contributors: Steve Buckingham, Nick Farr, and Frances Zacher.  We also thank former contributors Laura Simons and Mary Giorgi for their work on the site.  Without that group, there would be no blog here.

As a part of the ABA’s list, we’ve been placed in the Torts category with five other stellar legal blogs, including our friends Walter Olson of Overlawyered, J. Russell Jackson of Jackon on Consumer Class Actions and Mass Torts, and Jim Beck, Will Sachse and Steve McConnell of the Drug and Device Law blog.  That’s great company, adding to the honor.

We were pleased to see some of our other favorite sites make the list in some other categories, as well, including:

Stephanie Kimbro’s Virtual Law Practice blog

Keith Lee’s Associate Mind blog

Rick Hasen’s Election Law Blog

James Daily and Ryan Davidson’s The Law and the Multiverse blog

Kevin Underhill’s Lowering the Bar blog

The Volokh Conspiracy

Jeff Richardson’s iPhone J.D. blog

Eric Goldman’s Technology & Marketing Law Blog

In his own post commenting on his well deserved receipt of the award, Jeff Richardson remarked: “[O]ne of the best parts of this annual list is that it always helps me discover great sites that I had not run across before . . . .”  This is so true. There are always new blogs to be discovered on the list, as well as familiar sites we are long overdue in revisiting.

Finally, a bit of electioneering.

The editors of the ABA Journal have asked that their readers vote upon their favorite blogs in each category.  As noted above, we have been placed in the Torts category with five other excellent blogs. They are all great sites, and we encourage you to read them regularly.  But the editors have asked people to vote, so we must bring that your attention, right?

If you enjoy what we do here at Abnormal Use, we would greatly appreciate your support and humbly request that you cast your vote for us.  Here’s how:

Plug this website into your browser:

http://www.abajournal.com/blawg100

You will be prompted to register with the ABA Journal website.  It’s takes just a moment, as all you need to do is create a username and  password.

Once you have completed the registration, you will be taken to a page with a large logo at the top with twelve categories of blogs listed below it.

Click on the category labeled “Torts.”

Scroll down and find the entry for Abnormal Use.  Click the “Vote Now!” next to the Abnormal Use logo entry.

We’ll let you know how that turns out for us. In the meantime, remember that you can follow Abnormal Use on Twitter here and Facebook here.

Timing is everything in litigation. That’s certainly true in the discovery arena, even when dealing with the (still) relatively new field of social media.  Recently, Ernie Svenson a/k/a Ernie the Attorney wrote a fascinating post about the perils and pitfalls of subpoenaing Facebook for an individual’s social media profile and underlying private data.  According to Ernie, Facebook usually refuses to produce a meaningful subpoena response – the good stuff you’re hoping to get will likely not be in the company’s formal response. Accordingly, he offers some alternative approaches to obtaining that data through the formal discovery process. There’s not much to add to his very thorough post; but I would offer the following tips on timing such requests.

Read the rest of the post here.

Once you start issuing subpoenas for social media discovery, you’ve tipped your hand to your opponent.  In his post, Jim offers some suggestions on how to structure and time one’s social media discovery to maximize results and avoid potential spoliation.

As you know, we pause occasionally to reflect upon our milestones at this site.  Earlier this year, in January, we reflected upon our first birthday and shared the (little) wisdom we had learned at that point.

Way back in May of 2010, we commemorated the occasion of our 100th post, an celebration which now seems almost quaint.  At that time, we noted:

It has been just four short months since we unveiled this products liability blog with a formal mission statement. Whereas we feel certain that blogging may come naturally to some, our first foray into the blogosphere was not without some trepidation. Naturally, we asked ourselves: Will there be sufficient source material? But we quickly learned that this was the least of our concerns. Fortunately for products liability bloggers, in the rapid, ever-changing world of litigation, there is rarely a day that passes without something newsworthy, whether it be a new court decision, an interesting verdict, a product recall (an augury of imminent litigation), or a story on a future Plaintiff’s new and “inventive” use of a product that, predictably, went awry. Needless to say, we have found plenty of cases and news items about which to post. We are also proud to have presented several original interviews with law professors in our series which we affectionately call Abnormal Interviews (more of which are to come in the future).

Aw, weren’t we cute at that age? As we write today, we are just two months away from our second birthday (and we’re sure we will pause again that day to reminisce even further on our blogging history). Nostalgia aside, we are encouraged by our progress at this site.  In January of 2010, we were a brand new blog, entirely unknown, and with few friends in the legal blogosphere.  Now, in November of 2011, we have built up a solid archive of posts and have made a number of friends and contacts in this enterprise.  It’s been rewarding to write about the law, as well as other off topic items, and see the responses of you, our dear readers. Certainly, this endeavor would not have been possible without the support of our writers: authors (Phil Reeves, Stephanie Flynn), regular contributors (Nick Farr, Frances Zacher, Steve Buckingham), guest authors (Mary Giorgi, Laura Simons, Mills Gallivan, Childs Cantey Thrasher), and other alumni.  Without their support and hard work, we would have few, if any, posts at this site.

So, on this fateful occasion, we will share with you three things we have learned about the advantages of legal blogging.  A legal blog is often a Herculean task; it requires time, diligence, and patience.  Some firms are dissuaded from the enterprise due to the time commitment, while others throw themselves into the task and quickly burn out.  But, for those who persevere, there are rewards.

So here’s our purported wisdom:

1.  A legal blog raises your firm’s profile.  This is something that Mark Hermann, formerly of the Drug & Device Law blog, noted in his “Memoirs of a Blogger.”  It is certainly true, as we here at Abnormal Use have been cited by a number of legal publications that have taken notice of this site, including The New York Times, NPR,  Scientific American, and a whole host of regional newspapers, law blogs, and other publications.  (We were even invited to host a webinar!) It is unlikely these sources would have mentioned or contacted our firm under those circumstances absent our blogging effort.

2.  It’s an entirely new way to network with other attorneys across the nation.  Really, blogging is a hobby as much as it is a business development mechanism.  Legal bloggers tend to have similar interests, and the shared interest in blogging is often a great way to break the ice, either online or in real life.  Accordingly, as we have noted before, this site has enabled us to network with and meet lawyers across the country that we would not have met otherwise.  That’s a good thing, for networking purposes, but also because it allows us to meet interesting people with similar interests irrespective of potential business development efforts. That’s not so bad, right?

3. As we work to bring you new legal content at this site, we are also learning new things ourselves, allowing us to keep informed of the latest products liability developments across the land.

Plus, it’s loads of fun. We here at Abnormal Use enjoy bringing you legal commentary and fun links on Fridays.  We hope you will continue to stay with us as we continue this enterprise, and we thank all of you, our dear readers, for your support over these last nearly two years.