InternetLawCommentary.com

Former legal blogger, Mark Herrmann, may be the smartest law blogger.  Because he’s a former law blogger.  Obviously, I do this voluntarily so there’s not too much complaining which would be well received.  I liken the feeling to people who own boats and exclaim that the best days for a boat owner are only the day you buy the boat and the day you sell it.  If you are thinking about blogging, give thought to the following.

Herrmann wrote an article, “Memoirs of a Blogger,” where he puts the postscript on his involvement in a fairly large legal blog.  In the piece, he discusses the various blind spots which existed and plagued him as a law blogger.

What resoundingly comes across is the fact that blogging turns casual law reading into a hunt.  As he puts it, you no longer “gently” keep abreast of your area of practice.  You hunt down material.  What he does not mention is the “so what” factor — how do I know that I am not simply wasting time and having this go out into the ether?  Does it really matter if I only do one post this week?

Herrmann also did not face any backlash in his firm for writing a blog.  I think a lot of lawyers do.  First, he co-wrote his blog with a lawyer… from another firm.  He did not mention that anyone in his firm had a problem with that — but firms are jealous things.  In a lot of firms, co-working with another law firm beyond “co-counsel” on a case can easily launch whispered questions of disloyalty.

Consider this second scenario: the blogger writes something that a client doesn’t like, another lawyer in the firm doesn’t like or something that gets used against the firm in a case.  Stack a blogger’s interest in a silly little blog against any of those situations… and the blog loses.  In a split second, years of hunting material and designing a site goes down the drain.

Third scenario: no one in your own firm even knows your blog exists.  For that, you have to simply love the hunting and writing.  Over time, that should solve itself.

Fourth scenario: lawyers in the firm don’t get it and don’t like the individuality.  Herrmann refers to this as the cult of personality but, realistically, I don’t see blogs in that kind of hipster light.  This can be the most pernicious of all of the foregoing scenarios since it undermines your actual, human working relationships.  A blogger may knowingly or unknowingly pick the wrong choice.

It is difficult to determine if there is some precedent in the Second District’s U.S. v. Anthony Bari case relative to whether a judge can take judicial notice of a fact by Googling the issue. But, at least according to the federal court, we should “expect to see more judges doing just that.”

The defendant had been on supervised release after serving time for bank robbery when, alas, he allegedly robbed another bank. At the hearing on the revocation of supervised release, the court heard evidence tending to prove that the defendant robbed the second bank. The most damning evidence was that the bank’s surveillance video showed the robber wearing a yellow rain hat which looked a lot like the one which the defendant had at home. The judge noted that there are lots of different types of rain hats and it was “too much of a coincidence” that the defendant had the same type. To underscore that point, the judge acknowledged that he had Googled yellow rain hats and confirmed that “there are lots of different rain hats.”

The defendant’s release was revoked and he appealed, claiming that the court violated Federal Rule of Evidence 605, namely that the judge cannot “testify” about a fact. The government responded that the court was merely taking judicial notice of a commonly known fact under Rule of Evidence 201.

There is an interesting footnote as to whether a strict interpretation of FRE 605 might devour judicial notice under FRE 201, but without taking evidence rules to extremes, the court concluded that the judge’s use of Google to establish that “there are lots of different rain hats” was proper. Indeed, the court approved Google-confirming because, “as broadband speeds increase and Internet search engines improve, the cost of confirming one’s intuition decreases” (an odd statement, since even a Yahoo search in 1995 on dial-up would likely give you more or less the same results – connectivity and search engine optimization are really not the driving forces here). In short, at least in these types of hearings, judges may perform Google searches to confirm matters of common knowledge.

Yes, believe it or not.

You’ve probably seen the commercials for LifeLock, the company where the president was publishing his own social security number to show how safe their $100/year identity theft program could be.  Sounded great until they had to settle with the FTC for $12 million for alleged deceptive advertising.

Then there’s FreeCreditReport.com.  Great commercials on tv.  Ah, but there’s a fee to sign up and then you need to cancel to avoid paying $15.  If I’m handing over personal information to confirm there has not been any funny business with my credit, this sign-up-and-then-cancel routine is not the way I want to begin.

You can obtain a free “credit disclosure” (or credit report) once a year from the three major credit reporting companies (Equifax, Experian, and TransUnion) under the Fair Credit Reporting Act (FCRA) and the FACT Act.

So, yes, it is true, federal law allows you to obtain your credit report every year.  The FTC’s website explains the situation here and here.

So can you get your report… online… instantly?  Yes.  Go to AnnualCreditReport.com and start the process.  You can run all three credit reports at once or, if you are suspicious about monthly activity, you can run one at a time and stagger it out over the period of a year.  If you are concerned about using a website for this, you can mail or call it in — note, the FTC’s website references using this AnnualCreditReport.com, if that increases your confidence.

I pulled all three reports in about 5 minutes.  Anecdotally, it looks like Equifax is the most comprehensive.

Note: you have to pay to get your “credit score.”  That’s not free.

Lawyers were fairly quick to catch onto the trend of Twitter and, to a lesser extent, Facebook.  It is now common for lawyers to ask deponents about email addresses, Internet usage, and social networking activities.

A new Internet trend is afoot and savvy lawyers may want to at least be aware of the new media.  No, it’s not Google Buzz, which both the Wall Street Journal and CNET recently panned here and here.

Foursquare and Yelp are similar social networking systems which integrate, rather than replace, Facebook and Twitter into a person’s real world social life (indeed, that’s how they overcome the hurdle of creating a new Internet space, which is Google Buzz’s hurdle).  Both are apps which are used on a person’s smartphone (iPhone, BB, and Android).

Yelp began and remains a solid restaurant/bar/hotel finding app to be used on the go via the smartphone.  You can get names of places near you and read quick reviews.  A small community has developed, especially now that users can “check in” when they arrive — letting friends (real and internet-y) know where they are AND giving the business owner a chance to offer specials just for Yelp users.  You can even post the fact you’ve “checked in” to a certain place go to Facebook or Twitter.

Over the weekend, I saw a Yelp sticker at a business and, when I fired up the iPhone app, it beamed me a 10% off coupon while I was in line to pay.

Foursquare is a similar — if not better —  concept which, in their words, is “a cross between a friend-finder, a social city-guide and a game that rewards you for doing interesting things.”  Each time you check in to a place, you receive points.  If its a new place, you get more points.  As you check in to different types of places, you get badges.  As you drop Twitter-like “tips” about a restaurant, business or place, it will reward you with more points and even badges — if you are familiar with Xbox Achievement Points, you’ll realize this is a Barnum-like tool which does, indeed, drive participation.

Foursquare also lets you check-in and share via Twitter and Facebook; businesses likewise can reward you with specials for checking in.  If you are the person who “checks in” the most at a particular location, you will become the “Mayor” of that place.  In short, Foursquare takes Yelp and incentivizes it with a game.

Why should lawyers care?

One, if you are interested in a person’s activities, this provides their personal experiences, a timeline, and some of their commentary about their day.  For a personal injury plaintiff, this might amount to  jaw-dropping disclosures since Foursquare amounts to a breadcrumb trail mixed with a Twitter-like diary of the person’s day.

Second, on the business side, it may be interesting to ferret out defamation; determine whether there were witnesses to a particular event; find out how often someone have visited the location; or it may help locate potentially favorable witnesses who frequent the establishment.

Third, lawyers may  want to use these services to market their practice.  While clients may be hesitant to publicly “check in” that they have gone to their lawyer’s office (much less be the “Mayor”), it does list your business on the Yelp and Foursquare maps when users are looking around to see what “locations” are near them when they are playing with the app.  There’s even room for comments/tips.

We recently offered a lunch-time seminar for lawyers interested in learning about blogging at the Palm Beach Bar Association.  This was one in a series of lawyer-technology seminars, much like our prior Tweet Meet and Eat.

Thanks to Matt Kakuk of Webmanagement.us who jumped in with some technical help on issues relating to Google Analytics, Adsense, and Google Local.

If you couldn’t make it, the Palm Beach Bar Bulletin article is here and the powerpoint is here.

Thank you to the Paralegal Association of Florida – Boca Raton Chapter for the very kind invitation to speak about “Social Networking Websites for Fun and Research” at their January 14, 2010 meeting.

This presentation grew out of the Spring 2009 article, “Internet Social Networking Sites for Lawyers,” which was one of the first published articles to discuss using Facebook, Twitter, and others for law firm marketing as well as jury selection.  That article was published in the Trial Advocate Quarterly; it also is available under “Articles” on the right column of this website.

Since that article, there have been a number of developments including the fact that Facebook reset its community’s privacy settings to “Everyone.”  This creates greater potential researching options for lawyers and paralegals — as well as greater need for individuals to pay attention to their privacy settings.

The powerpoint for the presentation can be found under “Materials” along the right column at www.FloridaLawCommentary.com (scroll down).

At the meeting we discussed steps to secure your own privacy rights — for further discussion, take a look at this article, “8 Steps to Regain Control of Facebook Privacy.”

The ABA Journal Daily alerted us to “Google Offers Legal Research for Average Citizen… and Lawyers Too” so we had to take Google Scholar out for a test drive.  Along the way, we also stumbled across another Google product, Fast Flip.  Both are free.

Apparently Google wants to dip a toe into the legal research world by adding a “legal opinions and journals” radio button to Google Scholar search.  In our unscientific testing, Scholar did not find a recent Fourth DCA case which was issued that same day.  A “regular” Google search, however, pulled the case right up.  Depending on when you read this, test it out using that same case.  Email when that case makes it to Scholar.

Testing slightly older cases, we searched for a relatively new case, Perez v. Life Care Centers, and obtained no results in Scholar but, again, “regular” Google pulled the case right up.  Even a few cases we tested which date back a few months fail to appear in Scholar but pop right up in Google.

Searches by case names and attorney names seems to work fairly well, although not necessarily in chronological order.  There is even an attempt to reference whether the case has been cited (a rough version of Westlaw’s KeyCite or, for we old-timers, “Shepardizing”).  Like anyone with a  Google search bar and a few moments on his hands, I searched my own name and it dutifully pulled up some appellate decisions but no journal articles.

A good start for a Google Lab project.  We like it.

Also of interest is the current events reader, Fast Flip, which needs little explanation.  Watch the media, they’ll likely pick it up soon as the new internet toy…

What does $30 buy you these days?  How about a 90-minute session learning to use Twitter and Facebook, a free lunch, and 1 hour of Florida Bar CLE credit!

Come join us on Friday, September 25, 2009 at the Palm Beach County Bar Association offices for the Tweet Meet & Eat seminar.  Bring your laptop and log in through the Bar’s WiFi and learn how to create a Twitter and Facebook account as well as tips on posting, setting privacy settings, and marketing your practice.

Sign up here.

Can’t make it?  Check out the two Powerpoint presentations on the right column of this page under “Materials” (look for “2009 Twitter for Lawyers” and “2009 Facebook for Lawyers”).  Also check out Why Lawyers Should Be @ Twitter and Internet Social Networking Sites for Lawyers.

Considering writing a law blog?  Interested in seeing what other firms are doing?  Take a peek at the September 2009 Palm Beach Bar Bulletin article, Lawyer Blogs: Overview and Advice from Palm Beach County Bloggers.  It’s also included in the column to the right under “Articles.”

Note the interesting statistics: 85% of law firms in 2002 had websites but a more recent study suggests they are ONLY accessed for lawyer bios and practically nothing else.   Meanwhile, firms are missing out on catchy domain names like this one which might create other marketing opportunities.

A special nod, as always, to co-author, Diana Martin of Leopold~Kuvin in Palm Beach Gardens, Florida.

We’ve written about how to use social networking websites for jury selection and marketing (see right column under Articles) and Facebook has now made it even easier to hunt down its members and their posts.

Conceptually, Facebook has been a “closed circuit” social networking site where users limit who can view their profiles and posts.  The idea is you keep it to a close circle of friends.  On the other hand, Twitter has been an “open circuit” social networking site where your posts go out into the twittersphere for friends, people you don’t know, neighbors, and prying lawyers to read.  Thus, Facebook has become a rock-solid means to communicate among friends while Twitter has become a way to communicate with the world.  Stated differently, and at the risk of overthinking this issue, Facebook makes connections based upon people, Twitter makes connections based upon topics.

Back to the changes at Facebook.  They’ve changed the general search query (top right corner of your facebook page) so that you can run your search term for everything on their site as well as subcategories like people, pages, groups, etc.  The change was announced (and perhaps better described), here on Facebook blog’s August 10 post.  We also came across this Florida-related post on the topic at Examiner.com, which is likewise a good description of the changes.

This does not mean that you now have access to Facebook user’s profiles, walls or other information.  By default, a user’s profile and other information is restricted.  However, this is an easier way to find users in the first place as well as see other Facebook “events” involving your search term.  Arguably, this could be a babystep towards Facebook becoming more open and searchable.  Meanwhile, don’t think lawyers are alone in searching Facebook…

Thanks to our friends at TechCrunch for the scoop, here.

Chances are if you are reading this, you likely do not need a primer on how to use web applications like Twitter.  But, in case you need a refresher or are looking for some Palm Beach legal related tweet material, check out the July/August 2009 Palm Beach Bar Bulletin for Why Lawyers Should Be @ Twitter.

Special thanks to Diana L. Martin of Leopold~Kuvin who did the majority of the Internet spadework and writing.

Not a member of the Palm Beach Bar Association?  Check them out here or become a fan on Facebook.

Twitter fans can follow Diana, me or the PBCBA.

While lawyers are typically slow to adopt any new technology, there is a peculiar love affair between lawyers and Twitter.  ”New” by the way is a relative term.  Twitter’s been around since 2006.  How many people had heard of it before 2008?  Hmm?

Even on this site, we’ve found ourselves blogging about Twitter (seems like it should be the other way around).  Admittedly, even this writer has put fingertips to keyboard to crank out an article, Internet Social Networking Sites for Lawyers.  But, as Twitter explodes into the mainstream, it’s getting a little overdone.  So recognizing we’re a bit bogged down with Twitter-oversaturation, let’s turn our weary eye to… one more article on the darn thing.

The New York Bar chimed in with this piece, Look Who’s Talking: Legal Implications of Twitter Social Networking Technology.  Fortunately, it is not the usual lawyer-handwringing over how internet technology is going to affect discovery.  That said, everything stated in the article applies to non-digital communications.  If lawyers just took a step back and made the critical assessment that “watch what you say” applies at all times, there would be no need for these kinds of articles.  However, in fairness, since lawyers still are slow technology adopters, perhaps this article is a good, broad introduction.  Our apologies to the author for our beleaguered tone, we’re just oversaturated with Twitter.

We do give the author credit for raising the question of whether Twitter implicates the Electronically Stored Information provisions of the 2006 Federal Rules of Civil Procedure (“e-discovery” rules).  Unfortunately, the point is made in a hit and run fashion and there is no legal nor technical analysis of how it could be tracked/stored.  Then again, Twitter as an entity lacks a business model and, until recently, lacked a solid search engine.  Moreover, techies use Twitter in varying platforms (not just smart phones, but suites of software) and that within itself is getting complex.

The ABA Journal Mobile ran an interesting piece on lawyers-using-Twitter, Think of Twitter as ‘Megatexting,’ But Proceed With Caution.  Law-tech commentator Jim Calloway offered that lawyers should not over-Tweet (suggests you don’t have enough to do), don’t tweet outside of your practice/target area, and… don’t ever think your tweets are private.

With the increase in social networking websites, there has been a corresponding increase in the “learning curve” as to how to properly use them.  The mainstream media and legal profession have shown us that Tweeting jurors, incriminating evidence on MySpace, and Facebook posts about personal misadventures is a bad idea for job-seeking and staying out of jail.

In short, we’ve been warned.

Now comes word that at least one lawyer is telling an employer NOT to use social network information?

According to the article, Bank Nixes Use of Social Networking Sites in Hiring Process, one lawyer is suggesting that her large banking client not use this information.  Why?  Because of concerns that employees or would-be employees would claim that the decision NOT to hire was based off of some discriminatory reason, such as seeing online photos of the applicant’s babies and making a discriminatory decision.

How would the applicant know?  There’s the risk that someone in HR talks too much.  How do you protect against it?  Block social networks from being accessed.

Going against the mainstream certainly makes this lawyer and her advice stand out.  We’re not going to suggest she’s wrong — it is a well-reasoned theory.  Employees inclined to say dumb things are going to exist whether they have access to the internet or not.  Facebook profiles and information are typically private unless someone is accepted as a “friend”; taking one piece of information from a Tweet, blog or MySpace page (e.g., the applicant pictured with young children) is a stretch to suggest that THAT one sliver of information was why someone was not hired.  Instead of shying away from freely-available information, what about developing a clear policy of handling it?

Your thoughts welcome via the “comment” link below.

As mentioned before, the iPhone has been an impressive phenomenon to watch, both from a legal sense (e.g., is the AT&T terms of service contract unconscionable?) and from a tech perspective (e.g., is this a tethered device or a generative one?).  The leap from a novel cell phone to a resource of new “Apps” has made it even more essential.

The only truly law-related App seems to be the free e-copy of the Constitution.  OK, but probably not something for your main screen.

The ABA Journal puts news pieces (but not deep legal articles) in its own aggregating App, which is probably the only real meaningful lawyer App in the bunch.

Trial lawyers may want to pay attention to the USA Today, not necessarily because of the news but because of the national, state and local public poll results.  Consider it the iPhone version of the little graphics in the bottom corner of the USA Today paper.  But, for lawyers holed up in their office and/or surrounded by other lawyers all day long, it is a good way to keep track of what “normal” people do or think — consider it prep work so you can be a little more “with it” when selecting a jury.

Other Apps on the iPhone right now: Mobile News, News USA, Newsdesk, Scoop Free, Twittelator, LinkedIn, Facebook, SnapTell, Weather Channel, Flixster, Amazon.com, BookSearch, OpenTable, DopplerLite, vlingo, and Google Earth.

So what’s in your iPhone?