Brandt Goldstein, Lost in translation? Some brief notes on writing about law for the layperson. 52 N.Y.L. Sch. L. Rev. 373-385 (2007-08). This article provides an overview of the issues that arising when writing about legal topics for a non-legal audience--which, of course, is what many bloggers do. This article doesn't break a ton of new ground, but it provides an interesting contrast between the issues faced by mainstream journalists and legal bloggers.

Oh come on, not again. The NYT once again is trying to suggest that blogging kills bloggers. See the last time this topic came up. Hey NYT, I venture to say that working for the NY Times is, per capita, far more hazardous to one's health than blogging. Why don't you write THAT story?

Maybe I'm just a killjoy, but I don't think that bloggers' April Fools jokes are funny. I feel like we as bloggers have to work really hard to develop credibility, and the whole point of an April Fools joke is to abuse that credibility to get readers to buy into the implausibility of the gag. As a result of April Fools, the blogosphere is awash today with lots of not-credible information, and we as readers are struggling to sort truth from fiction. It makes for a tough blogging day.

I think the problem is especially acute with legal-related April Fools joke. The problem is that at this point, there are so many true stories of ridiculous legal claims and other tomfoolery that it's impossible now to disbelieve anything. In this respect, I'm reminded of the Coca-Cola advertising campaign where Coke executives were thinking about suing Coke Zero for "taste infringement." This is supposed to be funny--putatively, there isn't such a thing as "taste infringement," is there?--but in fact such a claim is hardly inconceivable and, if brought, would not be all that funny for the defendant or consumers generally. More generally, it's almost impossible to create a ridiculous enough fictional legal claim as the basis of an April Fools gag when reality far outstrips our wildest imagination.

So my recommendation to bloggers: if you want to keep me as a reader, don't abuse my trust with an April Fools gag. Rather, if you want to do something humorous, entertain me and your readers with the numerous real-life stories that are even more outrageous.

Today I received the following correspondence:
__

March 4, 2008

Via Regular and Certified Mail

Eric Goldman
Ericgoldman.org
Santa Clara University School of Law
500 El Camino Real
Santa Clara, CA 95053

Via E-Mail

Eric Goldman
Ericgoldman.org
egoldman@gmail.com

Re: WBG Builders

Dear Sir or Madam:

This office represents WBG Builders. Attached please find a print-out from Ericgoldman.org which references WBG Builders. We ask that you kindly remove your reference to WBG Builders in your posting. Please note that the article to which you link no longer exists and/or does not mention WBG Builders.

Very truly yours,
Nash Law Firm LLC

Alan A. Reuter, Esquire

Enc.
___

See the original post in question about WBG Builders (with link fixed). Notice that this letter was sent on official law firm stationery by regular mail, certified mail and email--same content, received 3 times (all in the span of about 1 hour, as it turns out). I imagine many recipients would find repeated delivery of a letter like this intimidating and would happily comply to avoid further interactions with a lawyer.

Also interesting is that the letter requests that I fix a dead link by removing references to WBG Builders. Huh? Even if the link is dead, there's no need to change the text. And as it turns out, it was easy enough to fix the link.

Instead, this approach suggests to me that perhaps WBG Builders is trying to do some reputation management and may not want consumers to know that it might sue them for saying things it doesn't like. But absolutely consumers should know this in forming their opinions about WBG Builders, and any effort to scrub the Net of undesirable WBG Builder references is both distressing and doomed to fail.

Today marks the three-year anniversary of my blogs. It has been an absolutely terrific ride, with about 1,200 posts and about 5.7M page views over the past three years. You can read some of the highlights and lowlights in my Blog Years-in-Review from 2005, 2006 and 2007. I am very grateful for your continued readership, especially long-time readers who have allocated a little piece of the past 3 years to reading the blog. You make it all worthwhile!

Over at LexBlog, I had a two-part interview about blogging and the role of blogs in legal scholarship. See parts 1 and 2.

Mark Hermann at the Drug & Device Law Blog celebrated his one year blogiversary with a retrospective on four lessons he learned about blogging:

1) "blogging — or, at a minimum, blogging about substantive legal issues — is hard." Eric's comment: personally, I find blogging is easy--much easier than writing a law review article. What's hard for me is finding the time to blog.

2) "blogging is personally satisfying."

3) "law firms, like law schools, are clueless about how to value blogs." Eric's comment: I certainly sympathize with this observation, but implicit in it is that there is a right method to value blogs and it's different from the valuation method we're using now. Personally, I haven't settled on a preferred valuation method, so it's hard to say we're getting it wrong right now.

4) "Blogging pays off." He follows up this observation with a specific example that rings true for me:

It pays off in part by being a self-fulfilling prophecy. Whether or not you know anything about drug and device products liability law, you appear to be an expert in that field as of the day you launch the "Drug and Device Law Blog." Impressed by your expertise, and hoping that you'll mention them online, complete strangers begin sending you e-mails containing unpublished decisions, creative ideas and endless other tidbits relating to drug and device law. Eventually, your blog becomes a clearinghouse for information about the subject it covers. By staking a claim to some online turf, you gradually come to dominate that turf and to become an insider on events in that field.

The law library has prepared this helpful list of blogs with a Santa Clara Law School affiliation.

The NYT speculates that perhaps the stress of blogging contributed to Om Malik's heart attack at age 41. (BTW, the article also does mention smoking, drinking, fatty foods and coffee). Yet another way that blogging is a major peril to society.

Back in April 2006, a first-rate group of law professor bloggers (and a few other bloggers) gathered for the Bloggership conference to discuss how blogs affected legal scholarship and our lives as law professors. My recap from the event. I thought the experience of meeting other bloggers face-to-face to discuss blog-related issues was so terrific that it inspired me to initiate a local variation, the Bay Area Blawger gatherings.

At the event, a number of the speakers discussed the disintermediation of law reviews by new electronic publishing tools such as SSRN, as well as the difficulty of dead trees publications to compete with the blogosphere's speed at disseminating commentary and digesting events. As if to reinforce the points, the Washington University Law Review has now published the collection of papers from the Bloggership conference, about a year-and-a-half after the event was held and the early drafts of the papers were published via SSRN. Paul Caron has helpfully posted a comprehensive index to the papers as published in the Washington University Law Review as well as links to a variety of other goodies related to the event. My paper on Co-Blogging, in its final published form, is here.

Earlier this week, I spent a ridiculous 3 hours perusing my blogroll accumulation from a single day of being offline. Too much! Today, the great blogroll purge--I trimmed my blogroll by about 30%, including a number of blogs I had subscribed to for well over 2 years. It's kind of like purging my contacts database of people I haven't been in touch with for a number of years--I may still have lots of positive goodwill towards these people, but it's time to face the facts about the future. In any case, I feel newly liberated by my streamlined blogroll. Now, we'll see if it actually frees up some time!

Last month I blogged about the AALS/National Law Journal event we hosted at SCU entitled "Blogging, Scholarship and the Bench and Bar." The National Law Journal published the transcript from the event (National Law Journal, Oct. 8, 2007 at 22). Law.com has the electronic copy if you are a registered user. Jessie Seyfer of the Recorder also published a brief recap.

UPDATE: You are now able to freely read excerpts from the event here.

On Monday, we held a panel discussion on campus entitled "Blogging, Scholarship and the Bench and Bar." Panelists included Paul Butler, Cindy Cohn, Judge Michael Hawkins, Larry Solum and myself, and the conversation was led by Nancy Rogers and Leigh Jones (a reporter at the National Law Journal). Larry Solum's brief recap. The conversation covered a number of topics, but the main threads were (1) how can blogs help lawyers and judges do their work?, and (2) how does blogging fit into the activities of law professors? We have posted the video online; see here (this video should be accessible for 30 days).

Before the event, I was given a few questions that I might be asked. The notes I prepared in anticipation of the panel:
_______

"How much time should a professor spend on blogging? When is it too much?"

• Assuming that a professor chooses to blog…
• Minimum amount of time: enough to ensure that the posts enhance the professor’s reputation.
- This means extra time to clean up first draft writing and, more importantly, doing verification/fact investigation to ensure accuracy
- For example, I don’t blog on a case/statute unless I’ve read the original source material. No way that I would rely on news reports or other bloggers’ characterizations
- Very uncool for bloggers to spread misinformation
- I also do a precedent check to ensure my comments are adding new incremental material rather than rehashing.
- So I rarely post in less than 1 hour; I have spent 10+ hours on some posts
• Maximum amount of time: such that blogging doesn’t interfere with professor’s other duties
- From my perspective, blogging doesn’t displace obligation to produce legal scholarship
- So if blogging is preventing me from contributing to scholarly discourse through more traditional format, then I’m spending too much time on it.
_______

"How can someone tell the difference between a good blog and a bad blog? How can the reader know if what's on a blog is accurate and truthful?"

• I try to avoid snap judgments about blogs I’m encountering for the first time
- I look at topical focus, length of time blogging, how regularly the blog is updated and if the posts look like they are adding new incremental material to the discussion.
- I also check external measures of popularity, like Technorati’s link count or Google PageRank
- When I find a topically relevant blog that looks like it has credibility and is being regularly maintained, I often add the blog to my RSS subscription list and “watch it” to see if I get new incremental and useful material from it. This also means that I regularly drop blogs from my RSS list.
• At the moment, I do not subscribe to any pseudonymous blogs.
- This is a matter of personal taste.
- For me, knowing the author’s identity is crucial to assessing the author’s credibility. I’ve also found that pseudonymous blogs tend to flame out quicker
- In many ways, my blog subscription list mirrors my social network—I tend to read blogs of people I’ve met offline and have developed trust in their expertise
_______

"What suggestions do you have regarding the format of law review articles that are drawn from your blogging experience?"

• Blogs offer quick publication, the ability to easily review cited sources, and often the ability of readers to interact with the author and other readers.
- Law reviews are already experimenting with similar offerings through online complements.
- However, law reviews are still trying to manage the community aspect. I’ve seen many journals with no comments; and others overrun by comment spammers and trolls—neither of which reflect well on the journal or make authors very happy
• The blogosphere’s quick publication cycles mean that new cases and statutes are digested very quickly.
- As a result, I think law reviews should categorically get out of the business of publishing case notes or recent updates unless they operate at blog speed.
- Otherwise, a law review has almost no chance of making any useful substantive contribution to the dialogue 12-18 months after a new case/statute when the blogs have already vetted the issue 12-18 hours after it occurred
• Law reviews also need to learn that publishing articles without additional marketing isn’t that useful for the journals or the authors.
- Therefore, each publication should be an event that sparks dialogue, which may require journals to more actively market new releases.
- Some journals have made limited progress on this front, but law reviews have a lot to learn from blogs about how to engage in bona fide conversations.
_______

"Law school gossip -- who has an offer from what law school, for example -- travels quickly on blogs. Has this been a positive or negative development on balance?"

• Blogs help form new communities that couldn’t exist in physical space
- For someone who doesn’t have physical access to information about law schools or law firms, blogs provide much needed access to very useful information
• However, “gossip blogs” can lead to unfortunate socialization
- Obsessing about every detail can lead to lots of efforts to improve relative positioning and make people feel like someone is always getting a better deal
- This can lead people to feel like they should be worrying about these details even if they otherwise wouldn’t care
- This is unfortunate, but it’s also the inevitable consequence of information democratization
• Blogs have also captured gossip that normally was ephemeral, but now this gossip is preserved forever and published to the world. Unfortunately, some of this gossip has had a greater detrimental effect than its off-line equivalent.
- Some of this gossip isn’t good, but it is inevitable, and I hope (over time) people will learn to better wield the power of publication
_______

I was also on deck to discuss gender disparities among bloggers--a topic I'm happy to defer to others. Cf. Dahlia Lithwick, who wrote that on the subject of the dearth of women opinion writers, men “are terrified to opine on the debate because the inquiry is so fraught with the possibility of career-terminating levels of politically correct blowback—à la Larry Summers—that they deem it better to hold their tongues and wait for the storm to pass.” In that vein, fortunately for me, this topic didn't arise in the panel discussion.

Yesterday, I noted that some bloggers are making a surprising amount of money. Today, we learn that the money going into blogs is coming at the expense of the mainstream media covering technology issues.

BusinessWeek estimates the earnings of some top bloggers. Some bloggers are earning surprisingly large amounts of cash from blogging. I can assure you I'm not!

The National Law Journal runs a glowing article on how law students have gotten jobs/offers from blogging. This is great to hear, and done properly a blog can turn a law student into a superstar while still in school. But as the article only hints at, blogs also have the potential to produce the directly opposite effect, as evidenced most recently by the AutoAdmit fiasco. I caution law students to consider both the upsides and downsides of blogging before entering the blogosphere.

This Washington Post article discusses how interview subjects are redefining their relationship with reporters:

The humble interview, the linchpin of journalism for centuries, is under assault....[I]n the digital age, some executives and commentators are saying they will respond only by e-mail, which allows them to post the entire exchange if they feel they have been misrepresented, truncated or otherwise disrespected. And some go further, saying, You want to know what I think? Read my blog.

Some observations:

1) I like email interviews with reporters because I think I generally express myself better in writing than babbling in real-time, plus reporters often can't keep up with my fast talking. However, sometimes phone interviews have a spontaneity that leads me to say more outrageous things than I would write, and in some cases phone interviews take less time than email interviews.

2) I still find it odd when reporters quote from a blog post without verifying authenticity, but I do love it when my blog is quoted with or without my permission: it takes no additional time on my part and I get extra credit for the work I've already done, plus usually my blog post says exactly what I wanted to say. (Even better is when the resulting story gives me a little link love). In fact, I'm a little surprised when reporters who read my blog post nevertheless want to conduct a separate phone interview to get my comments. Huh? (Believe it or not, this happens with some frequency).

3) Not infrequently, if I get two or more calls on a particular story and I haven't blogged it, I go ahead and write up a blog post recapping what I told those reporters. I can then direct future reporter inquiries to the post. If I conduct an email interview with a reporter, almost invariably my emailed remarks go up on my blog--not because I worry about misquoting, but simply because I want to recycle the work. (A blogger's credo: No good thought goes unblogged).

On Monday, SCU had a "thank you" lunch for professors and administrators who had media exposure this year. The formal program included three speakers: Ed Clendaniel, San Jose Mercury News opinion page writer; Dana Nachman, NBC 11 special projects producer; and myself.

Ed spoke about getting op-ed pieces published in a newspaper. He said that the Mercury News gets about 20,000 op-ed submissions a year for less than 1,000 publication spots--a <5% publication rate. His suggestions for improving the odds:
* "don't bore me"
* the editors can't do very much editing of pieces, so the articles should match the newspaper's style--relevant topic, evoke an emotional response (be compelling, express an opinion), have an insight
* be conversational and use anecdotes
* 650 word limit means 650 words!

Personally, I found the whole idea of op-eds a little anachronistic. I've written a few op-eds in my day, but my blog has effectively usurped that writing role for me. My blog may not have as big an audience as a major newspaper, but I get instant access to the conversation and complete control of my words. In the past, there used to be enhanced validation/credibility by getting an op-ed into a major paper, but I just don't feel that's too important (at least for me) any more.

Dana spoke about interviewing with TV reporters. She explained that a typical news story gets about 75 seconds of airtime, so most interviewers get 5-20 seconds of that. Unlike Ed, she said that TV reporters *don't like* anecdotes because they usually take too long and can't be aired. TV reporters also hate it when interviewees say "As I said before..." in the middle of a thought, because that thought can't be aired. To avoid this, TV reporters generally don't like chit-chatting about the story before the camera is rolling. She said that after the interviews, most reporters transcribe the interview, circle the useful soundbites and use the rest as background material for the story. She said that if an interviewee really wants to convey a particular message, the interviewee should just keep repeating it (but don't say "As I said before!").

I spoke about how blogs have helped increase my exposure to reporters in at least three ways:

1) Reporters routinely use search engines to find sources, so my blog acts as a "magnet" for attracting those reporters. In some cases, reporters will quote the blog directly without even speaking with me. Further, my blog lends some internal credibility to my authority as a source.

2) Blog readers act as a type of distributed referral network, regularly referring reporters to me.

3) Reporters may become subscribers to my blog, in which case they may regularly report on stories I write about and quote my blog/contact me for more quotes.

I also noted that, by participating in the blogosphere, I could get access to websites such as Slashdot and Digg where the visibility of being linked may rival or exceed the exposure from being quoted in the mainstream media Given the choice between a quote in the NY Times or a link from Slashdot, I'd likely take the Slashdot link!

I did sound a few cautionary notes about blogging for professors. It's time-consuming; not everyone has a blogging personality; and there are a variety of risks (legal, reputational, and ruffled feathers).

From ProBlogger:

"34 Reasons Why People Unsubscribe from RSS feeds:

[1] Too many posts (the post levels are too overwhelming)
[2] Infrequent Posting (or the blog is effectively dead)
[3] Partial Excerpts Feeds
[4] Blog Changes Focus (too much off topic posting)
[5] Too many posts that I see elsewhere (Redundant, Repeated or Recycled News)..."

This reinforces that there's a "sweet spot" of blog volume--not too much, not too little.

IMHO, last night's gathering of Bay Area Blawgers was a smashing success!

The Crowd

We had over 45 people show up at the event, exceeding our seating capacity! Typically, a fair number of lawyers who RSVP to an event don't show because of last-minute crises, etc. (This is especially true when there's no registration fee). Remarkably, all but a tiny handful of RSVPs actually showed up. I think this reflects bloggers' strong interest in meetups like this--we had attendees who fought a lot of traffic to make it from distant points, including SF, Marin and the Central Valley.

I was also struck by the bloggers' diversity. Just about every segment of the legal industry was represented: big firm lawyers, small firm lawyers, solo practitioners, in-house lawyers, government lawyers, non-profit lawyers, academics, law students, librarians/knowledge managers and legal reporters. Bloggers also covered a diverse range of topics/practice areas: we had a strong group of IP/tech bloggers, but we also had bloggers covering real estate law, immigration law, corporate law, unfair competition law, government law, professional responsibility, politics, legal humor and much more. Finally, we had all of the generations represented; we had lawyers with decades of experience and law students just starting their career.

Thus, this event cut across a lot of the normal divisions within the legal community, yet everyone had something to contribute, and people mingled freely. I can think of few other contexts where such a diverse group of lawyers (and legal-types) eagerly and easily interact with each other. Blogging truly does bring people together--in this case, people from many different backgrounds and walks of life. The main commonalities were (1) we went to law school, and (2) we blog. Apparently, that's enough commonality to form a solid community despite the many other differences.

One other point about the crowd. There's been a lot written about the dearth of women bloggers, a topic that regularly sparks blogwars. See, e.g., here, here (noting that 25% of law prof bloggers are women) and here/here (observing the phenomenon in political blogs). But last night, we had a terrific turnout of top-notch women bloggers. At least in the Bay Area, there's no obvious gender disparity.

The Discussion

In my introduction, I observed that blogging allows us to make virtual friends across the globe, so it’s a little ironic to meet physically, which by necessity limits attendance to people locally. This brings to mind the environmentalists’ 1970s mantra: “Think Globally, Act Locally.” Perhaps in the digital age, we might update that motto to: “Blog Globally, Meet Locally.”

During the discussion, we talked about why people blogged, the challenges that bloggers face, how bloggers develop their voice and strike a balance between personal and professional topics, how bloggers manage reader comments, some risk management issues (like liability for infringing comments), and how blogs may be affecting the development of the law. Although we had a formal discussion for almost 90 minutes, I felt like we barely scratched the surface of these topics, and there were many, many times I would have loved to ask follow-up questions and really explored someone's remark.

We ended up spending a surprising amount of time discussing blogs as an extension of a lawyer's identity and the obligations/challenges of owning one's words. We want freedom to express ourselves, but we also face a lot of constraints due to the possible implications of our words on our reputation or on third parties (such as our clients). Kim Kralowec was a perfect example, as she started out by blogging pseudonymously for a year before taking the cloak off. Then, she was reluctant to blog on defense-favorable cases given her plaintiff-side practice, but ultimately her firm's managing partner encouraged her to blog all sides.

As this indicates, many lawyers fear blogging because of possible future estoppel--i.e., lawyer takes position A on the blog, and then wants to argue contrary position B in the future for a client. On this point, Jason Schultz asked if anyone in the room had their blog cited against them by an adversary. His working theory is that adversaries may raise a lawyer's public statements against them, but that such citations rarely have any adverse consequence.

I had a personal experience with this. When I was being deposed as an expert witness, the opposing lawyer asked me about a post I had made to an email list. (The printout was actually garbled, but that's a different point). But, consistent with Jason's theory, this citation was inconsequential to my testimony or my credibility. In response to Jason's inquiry, John Steele also noted that he knew of 2 different law firms who had their client newsletters cited against them, but again it's not clear that those citations had any effect. So while blogging still has a theoretical risk of further adverse citation, we’re still looking for actual evidence of such adversity in practice.

However, I couldn't resist pointing out how I had been listed on a Rule 26 supplemental disclosure in the Bar/Bri litigation as a witness with potentially discoverable evidence because I had written a few general blog posts on the case.

Kurt Opsahl conducted 2 interesting surveys. First, he asked how many bloggers had filed a 512 OSP registration with the copyright office. No hands, although Mike Masnick from Techdirt said he was in the process of doing so. This result is consistent with my research on the OSP registration database last summer (see here), where I identified only about a dozen blogs that had filed registrations.

Second, Kurt asked how many bloggers had received a cease-and-desist letter. About 10 bloggers raised their hands. I raised my hand even though I don't think I've ever received a "true" cease-and-desist. I have gotten some nasty emails from litigants (typically plaintiffs) unhappy with my blogging on their case, but those rarely contain anything close to an implied legal threat.

However, I did have one situation that's close enough. In that case, a "reporter" (which I put in quotes for reasons that will be obvious in a moment) was surprised by my strong words in a post where I dissected an ill-conceived lawsuit. The reporter emailed me to ask if I thought my remarks were defamatory, and of course I replied that I thought not. This enterprising "reporter" then wrote a story about how bloggers can be irresponsible with their word choices, citing how a law professor (me) had written a blog post that could be defamatory. As part of this reporter's research, he called up the litigants in the deconstructed case and asked them "Hey, do you think Goldman defamed ya? And do you plan to do anything about that?" I think it's fair to insert a "hint hint" after those questions, and I'll let you form your own opinions about whether such questions are consistent with standard journalistic ethics. Then, to complete the campaign, the reporter submitted this story to Slashdot. Fortunately, when other bloggers with actual legal training weighed in, they all were as dismissive of the defamation characterization as I was. But it's never fun having people running around asking other people if they are planning to sue me!

One last point from the discussion: Cathy Gellis said that she went to law school in part to have a say in important matters. But then she realized that to have a say, she needed to speak up--which she now does via her blog. To me, this was one of the best justifications for blogging that I've heard.

Next Steps

At the event's end, I asked if there was sufficient interest in reconvening another gathering of Bay Area Blawgers, but I think the answer was already fairly obvious. It was absolutely terrific to meet people face-to-face, and we clearly have more things we could learn from each other. Therefore, the High Tech Law Institute plans to sponsor a second gathering of Bay Area Blawgers in Fall sometime. More details to come. If you didn't RSVP yes to the initial event, or if you're not on the list of Bay Area Blawgers, then I don't have you on the email list--please contact me and I'll add you.

Other Recaps

Blawg Review
Matt Cutts
Cathy Gellis
Matt Holohan
Kim Kralowec
Mary Minow
Kristie Prinz
John Steele
Supra

Other Blog-Related Resources

List of Bay Area Blawgers
Blawger Discussion Issues
My collection of blog law and blogging related materials

I compiled a list of Bay Area Blawgers. I welcome any updates or corrections.

A new research study from Yale suggests that outgoing links, even to competitors, builds traffic. The argument goes: outgoing links can help a blog's readers answer their informational needs, even if the content isn't originated at the linking blog. Therefore, blog readers will become more loyal to the blog even though they are being directed to competitors.

This argument sounds OK as a theoretical long run explanation, but I think there's another explanation for the value of ongoing links that has significantly more short-term currency. Many bloggers maintain vanity monitoring tools which notify them when another blogger links to their blog. An outgoing link triggers these notification tools. It's like sending the other bloggers an email, except that these notifications aren't blocked by spam filters. Therefore, outgoing links bring a blog to the attention of other bloggers, some of whom either establish reciprocal links immediately or become regular readers and start linking to the blog in the ordinary course of blogging.

HT: Kevin at LexBlog

One underwriter (rightly or wrongly) says that lawyer blogging would void its malpractice insurance coverage. I suspect this is one of those early overreactions to theoretical risks by an insurance carrier, and the insurance industry will wise up after a number of years of better understanding the (low) malpractice risk profile of blogging.

More by Kevin at LexBlog.

UPDATE: Kevin had a good exchange with Chubb, posted here. They've partially backtracked to say that they may not insure "advisory" blogs where law firms "offer advice," but informational blogs are OK. This makes sense, a little, in that lawyers would be ill-advised to render legal advice via a public blog, but I can't imagine many (any?) lawyers are doing that.

I've concluded my guest blogging stint at Concurring Opinions. A list of my posts there:

* Best and Worst Internet Laws
* Suggestions for Conference Organizers
* Real Estate Appraisals and Copyrighting Facts
* MySpace Sued for Facilitating Offline Sexual Assaults
* Curriculum Proliferation
* Favorite Holiday-Themed Cases
* A Guest Blogger's "Meta" Post About Guest Blogging

I'm helping to organize a roundtable discussion for blawgers (scheduled for March 28, 6-8pm at SCU--please email me if you're interested in coming). This got me thinking about topics I'd like to explore with other blawgers. My list:

General

* why do you blog?
* who is your intended audience?
* what is your favorite/most memorable blogging experience?
* how did you get into blogging?
* who are your favorite bloggers?
* what would do with your blog if you had more time?
* how would you characterize your blog voice/style?

Blogging Mechanics

* how are you dealing with comment/referral spam?
* what do you do to promote your blog?
* what are you using as a stats package?
* any luck with tools like Feedburner or a service that converts blog posts into an email alert?
* what's your philosophy for building/managing your blogroll?
* are there better ways to generate revenue than Google AdSense? Are you concerned about generating revenues from the blog?
* what are your experiences with podcasting and video?
* do you have any special tricks to sourcing content for your blog?

Risk Management

* are you getting any good business/referrals from the blog? How do you respond to requests for legal input from blog readers?
* how are you dealing with emails from litigants in the cases you blog about? (many of these emails want to relitigate the case via the blog)
* what are you doing to manage legal risk for comments, guest bloggers, joint bloggers? (recognizing that 47 USC 230 and other legal doctrines may limit liability here)
* what is your policy about taking down user comments? Accepting trackbacks?
* are you registering your copyrights? Should you? Have you registered as an OSP under 17 USC 512? Should you?
* how much research do you do before blogging on a topic? How much should you do?
* do you have insurance that covers your blogging? Does your malpractice insurance carrier care if you're blogging?

Professional Responsibilities

* what are law firm policies about attorney blogging? How do clients feel about blogging? Has a blog post been cited against you?
* what are the rules for company employees blogging, and are the rules different for in-house counsel (and should they be?)?
* are you concerned that blawging will be regulated as legal marketing?
* what disclosures do you make about your allegiances? What disclosures should be made?

If you have any other thoughts of topics you'd like to discuss, please email me.

I'm guest blogging this month at Concurring Opinions. You can find my posts here.

Back to the comment spam issue. I recalibrated the settings in Movable Type and opened up comments in April. Unbeknowst to me (and contrary to my configurations), MT put all of the comments in a moderation queue that wasn't obvious (at least, to me). I found this stash today and the picture wasn't pretty. I had a total of about 6,400 comment spam that queued up since mid-April (and I think MT auto-deleted about 1,000 more). I did a "quick" pass (took about 2 hours) through this queue and came up with about 45 legitimate comments, or well less than 1%. So, what do you think--should I close comments? Tighten them up further? (when I required authentication, I got numerous reports that the MT tools didn't work). Slog through this heavy spamfest for the nuggets? (many of the comments were terrific) I recalibrated the filters again and we'll see how that goes for a bit. But it may be that I'll have to take more drastic measures.

One last gripe. I still don't understand why MT doesn't do more to auto-kill comment spam. Here's a tip: if the comment contains the word "ringtone," KILL IT. MT should also allow comments to be sorted/filtered by score.

Comments are open on this post, but if you don't get scored as "not spam," watch out! If the comment gets buried in the comment spam pile, all hope may be lost...

At the Bloggership conference, a few of us discussed tools to track citations to our blogs or articles. It quickly became apparent that I ranked high on the vanity-o-meter due to my extensive knowledge on this topic. So, at the risk of publicly confirming my vanity, this post discusses some of the vanity monitoring tools that I use:

Blog Rankings

* Technorati. Technorati is notorious for having rankings that are out-of-date and for randomly failing to count links it knows about, but it's still a very large and useful database.
* Alexa. Alexa generates its data based on people who use its toolbar; but my understanding is that marketing types are the principal users of the toolbar (because they are trying to get this data). So I'm not sure if the rankings are very reliable.
* PubSub. They offer a daily RSS feed.
* BlogShares. I don't totally understand this site. It tries to establish a trading market for blogs, so in theory it's possible to compare market values of blogs. However, its link calculations are woefully incomplete, and I don't understand how it calculates the market value. I use it mostly to see if it picked up inlinks that other sites missed.
* Kinja. Another aggregation of stats.
* MarketLeap. This site allows searches on the number of in-links from various search engines. I don't find it all that valuable.

I know a lot of bloggers use The Truth Laid Bear, but I can't figure out this site or how to get ranked by it.

Another blog ranking service, of sorts, is Google's PageRank. I use Google's toolbar, so I see the PageRank for every site I visit.

Blog Citation Alerts

* Technorati. I have Technorati alerts set up on my name and my blog URLs. This gets delivered via RSS. I find that this RSS feed in Bloglines is inoperable a lot.
* Google Blog Search. Google allows you to set up an RSS feed for search terms. This has worked pretty well for me.
* BlogPulse. This tool is pretty flaky, buyt it does offer an RSS feed.
* Talk Digger. A meta search engine that combines results from a variety of sources. The searches can sometimes produce some interesting results.

General Citations

* Google News alerts. I've set up an automatic search in Google News for "Eric Goldman" and some of my article titles. These results are delivered via an RSS feed. Unfortunately, this RSS feed doesn't do a good job screening out past results, so I get identical results every time I access Bloglines.
* Westlaw Westclip and Lexis Alerts. I have alerts set up for my name and my articles in the law journal and news databases (as well as some KeyCite alerts set up for my articles). These results are emailed to me.

Google supports alerts from its main organic database (in addition to its news and blog search databases). I've tried setting up alerts there as well, but I've had little success with this.

Please email me or comment if I've missed a good tool. Please do NOT email me telling me to get a life or to bash my obsessive navel-gazing (I know).

Regular readers may recall that I've occasionally blogged about the Bar/Bri antitrust lawsuits. See, e.g., here and here and here and here. (And, FWIW, there's now another one: Park v. Thomson Corp. in the SDNY). I was also quoted in an article on the lawsuit. And, a dozen years ago, I was a Bar/Bri customer.

That pretty much describes my total universe of interactions with Bar/Bri in my lifetime. So you can imagine my surprise when I got a call from the law firm of Shearman and Sterling, an old-line NY firm that is one of the biggest, most prestigious and most expensive law firms in the country. They also happen to defend Bar/Bri. They informed me that my name had appeared on a Rule 26 supplemental disclosure filed by the plaintiff, flagging me as a party that may have potentially discoverable evidence. They were calling to try to figure out why I was on the list.

I'm trying to figure out the same thing! I think it's a little odd to show up on a witness list like this without being contacted first. And I REALLY don't want to be a witness in this case. So now I'm in the awkward position of scrambling to proclaim my incompetence. All I did was blog a few posts and give a reporter some quotes; that doesn't actually mean that I know anything!

More generally, this incident suggests a new hazard of blogging about pending lawsuits--litigants may try to drag the blogger into the suit as a witness. Good to know...

If you're interested in blog law, you might check out my paper called "Co-Blogging Law." In it, I discuss the legal implications of joint/group blogging and guest blogging. I wrote this paper for the Bloggership Symposium at Harvard Law School; read more about that event here. The paper abstract:

Bloggers frequently combine their efforts through joint blogging and guest blogging arrangements. These combinations may be informal from a social networks perspective, but they can have significant and unexpected legal consequences. This Essay looks at some of the ownership and liability consequences of co-blogging and guest blogging. To do so, the Essay will consider different possible legal characterizations of co-blogging, such as partnership, employment and joint ownership. The Essay concludes with some recommendations to minimize the implications of unexpected legal characterizations, including encouraging bloggers to make private agreements, educating bloggers about their choices, and exercising judicial restraint

The blogosphere is starting to generate comments about the article. See:
* Done With Mirrors
* Truth on the Market

It appears that the new status symbol for moms is a baby blog. Two examples from our friends Alex and Lara and Erin and Josh. My wife reads them regularly. But she doesn't read my blogs, which (I must confess) is a little tough on the ego. When cornered, her first response: "I don't know where your blogs are located." (Try Googling "eric goldman blog" or looking at the signature line of every email I send). Quickly recognizing the weakness of that retort, she went for the jugular: "I'd read your blogs if you wrote about something interesting." Other people's babies = interesting; husband's own writing = not!

Congratulations to my colleague Jason Czarnezki on the launch of his new blog, the Empirical Legal Studies blog. According to its first post, "the ELS blog will advance productive and interdisciplinary discourse among empirical legal scholars." Good luck!

I get a surprising and steadily increasing flow of emails related to my blogs. Just today, I got the following emails:

* an email from an attorney working on a case I blogged about, wanting to clarify the case. I actually get several of these types of emails a week; it's interesting how many litigators Google their cases to see what people are saying about them. (I swapped emails with her and ended up posting an addition to my blog post)
* a cryptic email from some company that helps mobile phone users read blogs, asking if they could offer my blog to their subscribers. (I didn't understand the request, but I said yes so long as I could change my mind)
* an email from a blogger notifying me that he had posted on a topic of putative interest, with the implied request that I link to the post (I did check out the post, but I'm not going to link to it; others appear to have gotten the same message and have already promoted his site)
* an email from an undergraduate who was sued by the RIAA and who is now trying to recoup his settlement payment through a donations website. The email asked me for a link (I told him good luck on his endeavors)
* an email from a former student saying that he had perused my blog and had a follow-up question about a legal point (I pointed him to a speech outline on my website that answered his question)

Whew! I've never been so popular in my life. And I didn't even get any PR contacts today, but I get those pretty regularly now.

As I've said before, my blogs are pretty small-potatoes as blogs go. So if I'm seeing this type of inflow, I shudder to imagine what real bloggers get.

I reviewed a recent report called Public RelationSHIPS: Communications in the Age of Personal Media. The methodology is a little suspect because people self-selected to participate, but a few interesting tidbits from the survey:

Why do bloggers blog? According to the survey:

34% = establish themselves as an authority in their field
32% = create a record of their thoughts [I'm surprised that a third of bloggers recognize this benefit--it often gets overlooked]
20% = "connecting with others"

Contacts with PR Agencies. "Nearly half of all bloggers (48%) reported never having contact with companies or their public relations representatives." (A methodology note reflects some inter-question inconsistencies on this point, but in ways that don't affect my comment). So, by inference, a majority of bloggers have been contacted by PR agencies...? If so, I'm shocked by how many bloggers are getting PR contacts--there are so many bloggers out there, and a lot of them don't have a whole lot of traffic. It appears that buzz marketing is growing, and PR agencies are treating blogs--even relatively small blogs--as a major publicity enterprise.

How Bloggers Correct Errors. I think bloggers generally struggle with the best way to correct errors. According to the survey, bloggers correct errors as follows:

39% = strikethrough error and correct
25% = create new post with new information
24% = remove post
6% = leave error but add correction
5% = leave error but rely on comments to correct
2% = leave post as is

I never make errors, but if the inconceivable happened, I generally add updates to my post. If there were new developments, I may add an entirely new post as well (with cross-links between the posts).

Conclusion. The report's conclusion: "The survey results and anecdotes demonstrate that online community members welcome involving company representatives into “the conversation,” as long as their interaction with them is truly participatory and honest—that it benefits both sides."

I think that's generally right. I always welcome emails about my blogs and suggestions of things I should look at, even if I blog on those suggestions fairly infrequently. If the person emailing me the tip has some skin in the game, I'd welcome the open disclosure of that--however, I don't view such disclosures as essential because I'm skeptical about the motivations of all unsolicited email suggestions I get.

I left for California very early Monday morning. Since then, I got hit by hundreds of automated comment spams, including an incredible 225 on a single blog post (on why Wikipedia will fail in 5 years) in a 3 day period. I'm pretty frustrated that Movable Type appears to do little or nothing to control the automated submissions; it seems like it would be pretty easy for Movable Type to figure out that a comment spammer is in action. In any case, I've had to put "shields up" on comments to fend off the spammers. Sorry for the extra hassle.

One more thing while I'm grousing about blog spam. Movable Type also appears to do little or nothing to control referral spam. I've never fully understand the value of referral spam, but I get a fair amount of it. It's annoying because it distorts my statistics. It would be great if Movable Type gave me a tool to let me designate something as referral spam, at which point Movable Type would completely ignore the referral from all of my statistics now and in the future.

I know there are plenty of unresolved issues about whether bloggers are journalists. Where ever you come out on that question, consider the following. I've been receiving a noticeable increase in personalized spam in the form of press releases and other marketing announcements. Last week, I even got a call from a PR agency asking if I had received a book they had sent for my review (I hadn't; they are sending another copy).

Clearly, the PR agencies view bloggers as potential influencers, just like other forms of media. Perhaps this just another manifestation of the latest fad called "buzz marketing."

Ironically, my blogs are pretty mom-and-pop as blogs go. As far as I know, I don't crack the top 1,000 blogs on any blog ranking list (and, probably, more accurately, I don't crack the top 10,000). So if the PR people are calling me, they must view blog exposure as valuable enough to chase down comparatively low-traffic/low-market-share blogs.

I've also noticed that the PR contacts/press releases have been pretty tightly focused on marketing issues. This isn't to say that they have been interesting, but the relevance is significantly higher than the average spam I get.

I am going to blog occasionally at the ContractsProf blog. My first post is about teaching Stambovsky v. Ackley, the haunted house case.

This is the third of a three part series about blogging based on my presentation at a Minnesota IP CLE in September. Today's question: assuming that you want to get into blogging, how should you get started?

I have a single succinct response to this question: start out as a guest blogger somewhere. Don't try to start up a blog from scratch on your own, at least not as a first-time blogger. Let me make my case to you why it's better to start as a guest blogger:

1) Blogging has high start-up costs. There are various start-up costs to blogging, including:

* picking the right vendor
* configuring the blog
* generating enough content to be noticed. In this respect, blogging is like a flywheel--you need to crank hard in the beginning to get the wheel turning. You can ease off a bit after the blog is established, but a strong and steady stream of posts in the beginning is critical to building the blog and its readership
* marketing the blog

Meanwhile, by joining an existing blog, there are zero start-up costs--someone has already incurred those for you.

2) Develop your blogging skills and preferences before you commit. By blogging somewhere else, you can learn what you like and don't like about various blog vendors. Switching after the blog is up is far more difficult than picking right from the beginning.

You can also develop your blogging voice. I stand behind all of my posts, but some of my early posts were, frankly, a little goofy, and there are definitely some posts I would handle differently now. It took me a while to establish my norms for what's blog-worthy and how best to present that information. In the context of a multi-person blog, you'll have some role models to emulate and some mentors to coach you.

Finally, as a guest, you can get a sense of the actual time it takes to blog on an ongoing basis. It's easy to underestimate this time, which is why I think so many blogs quickly fail. You can assess this time commitment without incurring start-up or wind-down costs.

3) Built-in readership. By joining an existing blog, you get access to an existing audience--readers on day 1. If you decide to launch your own blog or move to another blog, some of those readers will follow you.

You also get the blog's existing Google PageRank for search engine traffic. It takes some time for Google to assign a rank to a new blog, so your posts probably will get better search engine traffic by being at a site with existing PageRank. Further, if your co-blogger(s) has a good reputation generally, you can get the branding benefit of associating with their brand.

4) No wind-down costs. I think one of the best reasons to blog is to build a personal brand. Thus, you don't want to do anything with your blog that may undermine your brand.

Personally, I think there can be negative brand implications from stopping a blog mid-stream. (It depends on the circumstances, but there can be a taint to stopping an existing blog). In contrast, if you're a guest blogger, and you decide not to continue, there's no taint--by definition, the guest stint can be time-limited, so there's no consequence to letting the stint lapse.

How Do I Find a Guest Stint?

If you have good personal relationships with bloggers, just approach them. But if you don't, you might consider approaching some of your favorite bloggers and asking about an arrangement. Many bloggers are looking for good guest bloggers as a way to add diversity to the blog (and maybe lighten their writing load), so bloggers may be more receptive than you think.

[Note: I recognize that some of this post could be read as an implied request or encouragement to approach me for a guest blogging stint. That's not my intent. This blog tends to be fairly personal, so for now I don't plan to add other bloggers to this one. My other blog does have some guests, but I'm not sure how many more guests I'd like to add.]

Conclusion

Increasingly, we're seeing multi-person blogs, blog mergers and other consolidations. There are good reasons for consolidation: it's hard to bear the writing and operational responsibility of being a single-person blogger, a diversity of views makes the blog more interesting, and having multiple people marketing the blog tends to increase traffic for the blog across-the-board. As a result, I think the days of single-person blogs are coming to an end.

In my case, I wouldn't be a bit surprised to see this blog (or my other blog) roll up into a larger structure in the future. I like blogging, but I also think there is such strength in numbers that I'll be better off combining my talents with others. Stated in another way, based on 9 months of solo blogging experience, if I had to do it all over again I would start out in a group blog rather than on my own.

One final thought: if you do decide to invest long-term in a joint blogger as an equal participant, make sure you lay out a deal with your joint bloggers in advance. Hope for the best, but prepare for the worst.

This post is part of a three-part series:
Part 1 of 3: How I decide which blogs to read?
Part 2 of 3: Should I blog?
Part 3 of 3: If I decide I want to blog, how do I get started?

This is the second of a three part series about blogging based on my presentation at a Minnesota IP CLE last month. Today's question: should I blog?

The answer is purely based on cost-benefit. What does blogging cost, and what are its benefits? Let me recap some of the advantages and costs of blogging:

Advantages:

1) Blogging helps build a personal brand. Blogging is a form of content production, and content is the best form of marketing. Blogging allows me to demonstrate my expertise, either through my words or through my sheer repetition on a particular topic. Personal brand-building creates all kinds of opportunities for academic pursuits, policy-making and, in some cases, profit.

2) Blogging allows me to learn a little more about who is reading my work. Bloggers tend to be pretty stat-obsessed, and our desire for information about our readers is generally unfulfilled through most traditional media. Even electronic publishing tools like SSRN, which give us some download counts, don't give any insights beyond the raw download numbers.

With blogging, I can see all kinds of stats about my readers--where they are located geographically, who is linking to my work, what pages are popular. All of this gives helpful feedback to me as a writer, and incidentally allows for much better quantitative benchmarking of success.

3) Blogging is a way of organizing data for my own future retrieval. For example, for the last 2 years, John Ottaviani and I have published a list of the top 10 cyberlaw/IP cases of the prior year. With the blog, it's very easy to see what I've blogged about and pick the top cases from that.

4) Blogging is fun. I like to write and I have a lot to say (or, at least, I think I do). Having a platform to weigh in with my thoughts about issues is rewarding and enjoyable. Not everyone likes to write, and not everyone finds it fun. I do.

5) Blogging can generate revenues. I wouldn't say it's profitable, but still, there can be cash from blogging.

Disadvantages:

1) Blogs are very time-consuming. It's tempting to think that blogging is strictly about posting new content, but that's only a modest fraction of the work. In addition to generating new content, the time requirements include:

* setting up the blog's infrastructure
* maintaining the infrastructure
* responding to public comments and private emails
* dealing with trackback and comment spam (if you enable to those features)
* marketing the blog to build readership (getting indexed, emailing other bloggers to let them know of a posting)
* lining up guests (if applicable)

In addition, many bloggers choose to subscribe a wide variety of other blogs so that they can feel like part of the conversation. And many bloggers also obsess about the stats. While neither of these is required for blogging, these activities also take a significant amount of time.

2) I have all of the legal risks of being a publisher, including the risk of being sued for copyright infringement, defamation, etc.

3) I have non-legal risks from publishing content. In my case, I have the risk that my blog could be held against me for tenure, promotion or compensation purposes. In a typical lawyer case, a lawyer may have limits on their ability to blog about client matters, either expressly under the Rules of Professional Conduct or implicitly under concerns about strategic conflicts (i.e., ticking off an important client). Certainly any public position I take on the blog has the risk of being cited back against me in future negotiations or evaluations. And, to the extent that I try to work quickly, many of my blog posts lack the same degree of polish as other publications; but increasing their precision also increases my time investment.

Net conclusion:

Whether the time invested in blogging justifies the benefits is a question that can be answered only by each person looking at their situation. However, there's no question that blogging can be very beneficial. There's also no question that those benefits come at a significant opportunity cost--in the latter case, blogging can come at the expense of time that could be spent writing articles, speaking, networking, playing with the kids or doing a hobby. Is blogging the best allocation of that time? Before you begin, make sure it’s worth it.

In the next part, I'll talk about how to get started if you decide to join in the fun.

This post is part of a three-part series:
Part 1 of 3: How I decide which blogs to read?
Part 2 of 3: Should I blog?
Part 3 of 3: If I decide I want to blog, how do I get started?

Last month, I gave a talk at a Minnesota CLE program about law blogging (along with Marty Schwimmer of Trademark Blog and John Welch of TTABlog). We discussed some rather basic points, like:

* what is a blog? (Answer: just another form of electronic-mediated human communication, with certain structural conventions/norms like putting the latest posting at the top of a page)

* how should I read blogs? (Answer: use an aggregator, either a client-side aggregator like SharpReader or a web service like Bloglines...forget bookmarking or trying to sign up by email).

I'm going to discuss some additional points from the presentation in a three-part series. Today's topic: how I pick blogs to read. I use the following criteria to decide if I'm going to add a blog to my aggregator:

Topical Relevance

This is the most important factor--am I interested in the blog's topical focus? I have tightly defined interests, and my subscriptions hew to those interests pretty closely.

I know that many "general interest" and topically-expansive blogs are popular, but not with me. I subscribe to a few, but usually there's a personal relationship behind that subscription. A little topical diversity is fine, but too much diffuseness and the signal-to-noise ratio gets out of whack. Also, I avoid blogs where the blogger is a troll for controversy. Life's too short.

Recency of Updating

I don't expect blogs to update daily, but I usually avoid (or drop) dormant blogs. If the blogger hasn't blogged in a few months, I figure the blogger is out of business.

Author Identity

A number of my subscriptions are attributable to some out-of-the-blogosphere personal relationship. In many cases, the blog becomes part of our relationship, and we might communicate via blog posts, email or offline. At the same time, as I've explained earlier, I rarely subscribe to anonymous blogs. I need to know the blogger's life experiences and biases before I can give them full credibility.

Volume of Posts

There can be too much of a good thing. High-volume blogs are tough to keep up with.

Post Uniqueness

There are several styles of blogs:

* personal diaries
* clipping services (i.e., links to news reports with little commentary)
* policy rants
* commentary on recent developments
* true news reporting (some blogs break news)

I tend not to be interested in personal diaries (unless the blogger is a close friend) or policy rants (especially political ones).

I do subscribe to some clipping services, but only if I think the person is monitoring sources I wouldn't otherwise track. At this point, when something interesting happens, I usually see multiple blog posts through redundant sources, so I definitely don't need more of the same.

I like blogs that provide some personalized commentary on recent developments. I think of these blogs as a way of capturing the word of mouth--"hey, X just lost a lawsuit, what do you think?"

I also like blogs that break news or originate content. At this level, it's hard to distinguish blogs from traditional news media.

If you're interested, my blogroll.

This post is part of a three-part series:
Part 1 of 3: How I decide which blogs to read?
Part 2 of 3: Should I blog?
Part 3 of 3: If I decide I want to blog, how do I get started?

Marianna Moss is a friend (as well as the wife of my colleague Scott). She and some of her colleagues are running an interesting blog about working mothers that I recommend you check out if you're in the target audience. Keep up the great work, Marianna!