Congratulations are in order.  Friend of the blog, Ryan Steans, himself a long-time pop culture blogger, recently celebrated a memorable anniversary: his tenth year as a blogger.  Steans, who blogged first at a site called The League of Melbotis, and then at a sequel blog of sorts named The Signal Watch, deserves much praise for reaching this anniversary.  Long-time bloggers like Steans, and of course, Walter Olson of the Overlawyered legal blog, have dedicated substantial amounts of time to their websites and blogs. To reach ten years, well, that’s a lot of sweat equity.

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.

Here at Abnormal Use, we are all about online culture. Accordingly, we must comment upon a recent New York Times blog post by Nick Bilton entitled “Disruptions:  Digital Era Redefining Etiquette.”  Brought to our attention by a Twitter user, the article posits that the “worst offenders of all” are “those who leave a voicemail message and then email to tell you they left a voicemail message.” It’s true that few still listen to voicemail messages.  This trend likely frustrates many parents leaving messages for their children (as Bilton notes).

However, in litigation, it may actually be advisable to send a follow-up email after leaving someone a voicemail, particularly if that person is, intentionally or otherwise, making themselves overly difficult to reach. There are those with whom a lawyer must communicate on a case who do not often wish to return calls.  Perhaps it is an opponent who has failed to timely respond to discovery responses.  Perhaps it is a third party whose documents you have subpoenaed.  Perhaps it is a witness who is reluctant to appear for a deposition.  Perhaps it is an opposing counsel who simply has other priorities than the case at issue. Whatever the case, simply leaving voicemails, inevitably lost in the void, does not preserve one’s ability to argue later that one attempted to communicate with an individual.  Assume that one must later rely upon evidence that one attempted to reach out and communicate with such a person, whether it be in a motion to compel or otherwise.  Oftentimes, memorializing the fact that one left a message, particularly if it was ultimately unreturned, creates a record both of attempts to communicate and the recipient’s failure to respond.

Further, you may not initially suspect when you may need to later rely upon such evidence.  Occasionally, unforeseen issues surface, and you, the litigator, will be pleased that you created such a record of communications and attempts which you can later rely upon.

So there.

(Hat tip: Garance Franke-Ruta).

We must direct your attention to the brand new opinion in In re Christus Health Southeast Texas, No. 09–12–00538–CV (Tex. App. – Beaumont March 28, 2013, orig. proceeding) (per curiam) [PDF], in which the propriety of Facebook discovery is explored. This suit in question is a wrongful death and survival action arising from a 2009 cardiac catheterization.  The Plaintiffs’ decedent died the day after the procedure. Two requests for production were at issue in the mandamus proceeding, although we’re chiefly concerned with the second one, which asked the Plaintiffs “to produce copies of any postings pertaining to Arthur or Arthur’s death on any social media site.”

The court described the Plaintiffs’ objection to the social media discovery request as follows:

They also objected to Christus’s request for copies of postings on any social media sites, claiming the request was “an invasion of privacy and any such information would be unreliable and constitute hearsay and a fishing expedition and this request is meant for the purpose of harassment.” We note that the Lowes presented no evidence the discovery requests at issue in this proceeding were burdensome, asserted no claim that the information sought to be discovered was privileged, nor did they provide the trial court with a privilege log.

The defense filed a motion to compel, which was denied. Accordingly, the defense then sought a writ of mandamus.

In denying the defendant’s petition for writ of mandamus, the court noted:

The other request at issue in this mandamus proceeding asked the Lowes to produce “[p]hotocopies of postings by any plaintiff pertaining to Arthur Lowe or his death on Facebook or any other social media site.” The Lowes objected that “[s]uch request is an invasion of privacy and any such information would be unreliable and constitute hearsay and a fishing expedition and this request is meant for the purpose of harassment.”

With respect to request for copies of posts regarding Arthur before he died, the request is not limited in time. While the time period of relevant discovery while Arthur was alive may be broad, it is not unlimited. “Discovery orders requiring document production from an unreasonably long time period … are impermissibly overbroad.” While one of the plaintiffs indicated in her deposition that she had placed posts about Arthur on a social media site, the request at issue in this proceeding was not limited to those posts, nor was it limited to the period after Arthur’s death. While the Lowes are seeking damages for their mental anguish, and the statements the Lowes made about Arthur’s death are within the general scope of discovery, the Lowes did not establish that they had an expectation of privacy in their statements on social media sites. Nevertheless, a request without a time limit for posts is overly broad on its face. We conclude the trial court did not abuse its discretion by denying the request for posts because it was unlimited in time.

(citations omitted).

And there you go. This case suggests that social media discovery is no longer a novelty and that requests direct to social media profiles are just like any other such requests.

That’s probably a good thing.

Not too long ago, friend of the blog, Erik Mazzone of the North Carolina Law Blog, put together what he called a Legal Geek Meetup here in Charlotte.  This event was officially sponsored by the North Carolina Bar Association’s Law Practice Management Section (of which Mazzone is director). Assisting in the arrangements were two local Charlotte lawyers, myself and Ketan Soni.  (You didn’t think they would have a legal geek meeting in Charlotte without having us involved, did you?) The purpose of the first such event was to bring together like-minded young lawyers with an interest in social media and technology.  Here is the official description of the series of events:

Legal Geek events are designed to help lawyers and legal professionals interested in practice management and technology learn from each other. Each meetup focuses on a different topic, and may occasionally involve short presentations. While offered primarily to NCBA members, all local legal professionals are welcome to attend. There is no cost to attend these events.

The event was a success. Held at Charlotte’s new Heist Brewery, the meetup attracted at least 20 or so young lawyers.  (Even fabled North Carolina law blogger Lee S. Rosen made an appearance.). It was a fine – and low pressure – networking event (and by its very nature, it did not include a formal presentation or CLE credit).  Many, but not all, of the discussions had by the participants centered around tech or tech culture: Twitter, blogs, and using same to advance one’s practice. Basically, it was a just a fun get together for folks unafraid to refer to themselves as “legal geeks.”

There are upcoming events in Raleigh/Durham (April 11), Fayetteville (May 14), and, of course, Asheville (June 19).

If you’re interested in becoming a part of the events, see here.

It’s funny how the Internet works. We here at Abnormal Use have previously extolled the virtues of the @TweetsOfOld Twitter account, which in its own words, “attempt[s] to reveal the lives of our predecessors through the tweets of yesteryear.” In so doing, that Twitter account utilizes “real one-line brevities from old newspapers, as they appeared – or close.” Usually, the folks behind that account offer compelling, intriguing, and occasionally curious moments from periodicals published at least a century ago. Sometimes, the tweets center around some type of legal issue, made all the more interesting by the age of the event being profiled. On December 29, 2012, the TweetsOfOld account issued the following tweet:

“The Ohio Supreme Court says a man can whale a boy for snowballing him. IL1912.”

The alpha-numeric abbreviation at the end of the tweet signifies that this report came from an Illinois newspaper in 1912.

This got us thinking.  If the Ohio Supreme Court made a ruling which made the news in Illinois, surely we could locate that opinion.

We assume that any such ruling would have been issued in 1912, although it’s possible it could have been released in late 1911.

So we turned to Westlaw and the trusty Ohio Cases (OH-CS) database. We set a date field restriction such that only cases between 1910 and 1913 would be searched. The search term “Whal!” revealed two cases, neither of which were the one at issue.  The search term “snow!” produced 11 cases, most of which were not Supreme Court cases and none of which were the opinion in question.

We then went to the Ohio Supreme Court’s official website, and its oldest featured opinions online are from 1992.

After a total of five minutes of looking, we gave up, as other duties called. Oh, the Internet, what crazy errands you prompt.

After the end of a wearisome day practicing law, we here at Abnormal Use often like to review the news of the world (or, more likely, our friends’ social media updates) on our iPads or iPhones.  Sure, we receive legal news via the same medium, but it has become a tradition to peruse the Internet and our favorite social sites at the end of any given business day. Recently, we thought that we might have enough free time to see a movie, but not knowing what was playing at the local theatre, we downloaded a certain movie times mobile app.  It’s one of those magical programs that utilizes your phone’s GPS function to locate the nearest movie theatre and provide you its schedule of showings.  We continue to marvel at that type of technology, even though after several years of its use and popularity, it really should cease to amaze.  (An aside: Imagine telling yourself in 1997 that you would one day, in the not so distant future, be able to utilize your mobile phone for such things.   Science fiction, we would have thought.). However, our quest for cinematic enjoyment was interrupted by something sinister.

Vexing as it is, some of these apps, particularly the free apps, maintain advertising to support their operations. There is nothing inherently wrong with this approach, although advertising on one’s mobile phone, particularly on mobile apps, is really, really annoying. Of course, that’s the compromise we make in able to enjoy free apps that allow us to unlock the magic of today’s mobile telephone technology. Usually, it’s all good.

But there was something peculiar about the ad which popped up in the app that day.

Take a look:

The advertisement reads: “Have you ever been injured?  Talk to one of our guys.  They can get you a *phat* settlement.  Learn more.”

The reader is then called upon to click the “Learn more” button to investigate and, presumably, learn more about the offer.

Really?

Who is this advertisement targeted towards?  Is there a significant enough market of movie time seeking smart phone users with potential personal injury claims that such an app is rewarding?  The ad suggests that the reader “talk to one of our guys,” although it is unclear whether one of the “guys” is in fact a lawyer (not to mention the implications for diversity of the profession by mentioning only “guys”).

Further, there appears to be no disclaimer or geographic reference to be found in the advertisement.  Although we must confess we did not click the “Learn more” button for fear of what might happen if we did so. Perhaps some braver souls than we can do so and report on the results of that endeavor.

Oh, and after all of this, we decided not to see a movie.

As we’ve previously mentioned, our editor Jim Dedman is now contributing one monthly post to the North Carolina Law Blog.  Last week, his most recent submission was published at that site.  The topic: “It’s Hard Out There For A Blog Editor – Strategies to Keep Contributors Interested.” That one hits close to home, as we here know all too well about the perils of maintaining a blog.

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.

Other than for purely fun purposes, location based social media  seems to be the type of Internet fad that may not be of great assistance to the legal profession.  You are, of course, aware of this trend:  Foursquare, Facebook Places, the late Gowalla, and other applications permit a user to alert friends to his or her exact location at any given time.  Users “check in” to a venue, retail establishment, or elsewhere and can  leave comments and suggestions to later users who may find themselves at the same location at some point in the future.

Again, there does not seem to be must use for this technology in the legal field; real likes are not easy to get in this field.  First and foremost, confidentiality and privilege concerns may prevent an attorney from sharing his exact location at a given time with anyone other than his client.  Further, clients will receive no additional value by “checking in” to their attorney’s office, although we suppose some practitioners could, in fact, offer some type of incentive for future clients, although we don’t know how that might look or whether it would be ethical or not.

Despite such concerns, these days, most commercial establishments, including law firms, have their own entries on Foursquare.  Sometimes these are created by the firms themselves, and more likely than not, the entries are generated by whatever crawling software those services use to create specific entries for a given city or town. But it’s not just law offices on Foursquare.  Also included are entries for the types of places lawyers, such as this experienced workers compensation attorney in New Jersey, NJ frequent, such as courthouses, bar association headquarters, CLE sites, and other such haunts.

What inspired this post was a comment left by a Foursquare user a county courthouse somewhere in the Southeastern United States.  As a judicial center, it hosts various courts and offices where both civil and criminal trials are held.   Sure enough, the courthouse had its own entry on Foursquare, and the following comment was left by a visitor on December 21, 2011:

“If you kill in self-defense don’t destroy evidence and run away for 2 weeks, it looks bad to the jury.”

Wow.

Probably good advice, although we are trying to envision the exact circumstances by which this comment was offered.  Was this a juror commenting from the deliberation room?  Was this a courtroom observer commenting upon public proceedings?  An attorney offering pro bono legal advice? Was this a reporter?  Surely it was not the defendant attempting to learn from his or her mistakes?

Get this: that entry is not an anomaly.  Here’s a December 2010 comment we found to the Foursquare entry of a federal courthouse:

“Don’t break the law and you wont have to spend much time here.”

Again, probably good advice, though much more general than the first comment we discussed.

As you can see, there are some uncomfortable questions to be asked accompanying the usage of Foursquare in the judicial process.

The day after we run a post about one being impeached by one’s own social media, I, as a guest author here,  had to step in and offer up my own thoughts on that very subject. I use Twitter and LinkedIn for business purposes. If you ever want to know how I use them, I would be pleased to share that with you.  I can share some success stories, and perhaps some helpful hints, if you are so inclined. I do believe some form of social media should be in every lawyer’s marketing toolbox. But it is just that: one tool among many.

I am also on Facebook. I have some 400+ “friends.” I rarely turn down a friend request. I enjoy it. I have fun posting things and engaging in online conversations about the issues of the day. I typically do not post work related material – I only do so when the firm or one of our lawyers receives an award or honor.

But there are dangers to this type of interaction, and I was burned recently by a Facebook “friend.”

I recently mediated a case with a familiar Plaintiff’s attorney. The case had been around for a year or so. A month before the mediation, the Plaintiff’s lawyer sent me a request to be his friend on Facebook. As I  am often inclined to do ,  I accepted it. I have many lawyer Facebook friends – even some plaintiff lawyers.   I learned that the Plaintiff’s lawyer in my case had posted several items about our case – not naming the lawyers or clients – but just random things. The morning of the mediation, he posted that he was mediating a case in which the “powerful corporate defendant” had “mocked and disrespected” his “disabled”  client.

Sigh.

During the mediation, the Plaintiff’s lawyer opened by saying that he did not think we were taking his client’s case “seriously.” In apparent support for that position, he actually projected onto the screen one of my very recent Facebook posts about my plans to celebrate my fiftieth birthday. (Yes, I recently turned 50.) The Plaintiff’s lawyer said, “Maybe he was ready for this mediation last Wednesday before he started celebrating his weekend birthday, but . . . .” His sentence trailed off as if to suggest his doubt. He also commented that I had not been to any of the depositions in the case, as if sending my  experienced senior associate to the depositions was in poor from.   The associate was handling it under my close supervision.  (By the way, we had sent the mediator a statement ahead of time and had prepared a booklet of material to share with the other side and the mediator to be used in the mediation.). The mediation ended unsuccessfully.

So there you have it – my personal Facebook post used against me in my own mediation. I have now defriended this Plaintiff’s lawyer.

Perhaps I will defriend other lawyers in the future – I don’t yet know. But it’s now a dilemma. Some of you will take great pleasure in pointing out how this is why one shouldn’t have a Facebook account. I don’t see it that way, of course, but it is certainly a reminder of the perils of social media.

As we’ve previously mentioned, our editor Jim Dedman is now contributing one monthly post to the North Carolina Law Blog.  Last week, his fourth submission was published at that site.  The topic: “Will My Advocate Opponent Impeach Me With My Own Legal Social Media?”  Do we bloggers and Twitter users face risks in engaging in Internet commentary?  Might some of our opinions or blog posts come back to haunt us?  Might an Internet savvy advocate quote our own posts against us in some future case?

Well, let’s not get too worried about that.  Here’s how his post begins:

At a recent conference at the North Carolina Bar Association headquarters in Cary, I heard a new and much more interesting critique of legal blogging.  A seasoned litigator panelist suggested that whenever she is to appear in court against another lawyer, she always investigates whether that opponent maintains a law blog.  If so, she will scour and scrutinize those posts to see if her opponent has ever taken a position opposite to the one advanced against her in the case at hand.  If she finds evidence of such, she can alert the tribunal that her opponent has taken a contradictory position on the relevant law in the past when writing, presumably objectively, on a legal blog. This is, for lack of a better term, impeachment in court by one’s own law blog.  Ouch.

But this does not seem to be a risk of legal blogging specifically but rather communicating one’s ideas and views generally.  For decades and decades and decades before the advent of legal blogs, lawyers delivered speeches, made presentations to trade and legal groups, and authored law review articles.  Sure, that may have been before everything was neatly placed online, easily searchable, and simple to locate in seconds, but there have always been ways in which one lawyer can find the writings of another if that lawyer knows where to look. Like most things, though, that task has been made far, far easier in the digital age, though it could be done before.

There’s more, so click here to read the rest.

In the end, Jim concludes there’s probably not an increased risk simply because one is blogging.  But, in all such things, beware nonetheless.