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Thursday, May 31, 2007
Self-immolation on the witness chair via the power of the internet
Prof. Jonathan Adler and Hugh Hewitt both link to this story about a Boston pediatrician, Robert P. Lindeman, who, while a defendant in a malpractice case, blogged about his case — even during the trial. As he was undergoing cross-examination on the witness stand, the plaintiff's lawyer asked what probably sounded to the jury and everyone else in the courtroom like a pair of throw-away questions: Did he have a medical blog? Yes, he said. Did he blog under the pseudonym "Flea"? Um, well, yes. And then the plaintiff's lawyer moved on to other topics until they broke for the day.
But the very next morning, before Dr. Lindeman returned to the witness stand for further cross-examination, "he agreed to pay what members of Boston's tight-knit legal community describe as a substantial settlement — case closed."
"drfleablog" has since had its content zapped, but according to the news report, at the time of the trial, it included such things as the inside advice that Dr. Lindeman had been given by a jury consultant, along with a whole host of other potentially embarrassing observations that doubtless would have been explored in vivid detail on the following day of his cross-examination:
In his blog, Flea had ridiculed the plaintiff's case and the plaintiff's lawyer. He had revealed the defense strategy. He had accused members of the jury of dozing....
Elizabeth N. Mulvey, the lawyer who represented Vinroy and Deborah Binns and unmasked Lindeman as Flea, said she laughed when she read a posting at the start of the trial in which Lindeman nicknamed her Carissa Lunt, noticed that she bit her fingernails and mused, "Wonder if she's a pillow biter, too?"
"Not too bright," sez Hewitt with considerable understatement. But Lindeman is described in the article as being "a graduate of Yale University and Columbia University's College of Physicians and Surgeons [who] is board-certified in general pediatrics and pediatric pulmonary medicine." And he's supposedly very media- and specifically internet media-savy, having "shared his medical views on local television news programs, on the 'Manic Mommies' podcast produced by two Ashland mothers, and in magazines." So amateur courthouse psychologist Beldar's differential diagnosis is: "Willful but subconscious self-destruction, possibly coupled and overlaid with a God-complex."
Next on the horizon: Med-mal insurers revise their policies to exclude coverage for liability established in whole or part from internet self-immolation!
(From the comments on Prof. Adler's post, I've learned that New York lawyer Eric Turkewitz has been blogging about this for some time and in considerable detail before the Boston newspaper's story; he, in turn, has a long list of other links. And someone else has posted a 105-page .pdf version of what was on the drfleablog site before its content was zapped.)
I've been sensitive since Day 1 of my blogging career, back in August 2003, about the possibility that something I write here could come back to bite me or my clients in court in one way or another. So far, it hasn't.
But this past February, as I was on the stand as a witness myself to prove up the attorneys' fee portion of my client's claims during a jury trial, I was asked a question on cross-examination drawn directly from my own professional website: "Is it really true that you sometimes charge your clients for time you spend just sitting around and thinking about their cases?"
"Well, yes!" I replied. And then I explained, using a slightly less polished version of what I'd written on the website itself:
Not all my time spent on behalf of clients is "doing." Some of it is "just thinking" — while sitting at a computer keyboard, pacing the hallways, or simply staring off into space. I don't charge for travel time, but a lot of my travel time is also "thinking time." (If I'm asleep on a plane or in a hotel room, my meter is not running.) Daydreaming about brilliant arguments that I ought to have made doesn't count. But composing and rehearsing for brilliant arguments that I'm planning to make does count. When I believe you've gotten good value for time I've spent "just thinking," I will indeed bill for it. You ought not want a lawyer who's incapable of — or even just resistant to, or under-acquainted with — reflective thought and planning.
The genesis of that paragraph goes back many, many years, to when I was learning the fine art of how to honestly describe the services I'd rendered in a way that would nevertheless help my clients understand their genuine value. It is both a blessing and a curse of my profession that services rendered in its practice can often be performed outside the office and outside the courtroom. I don't think I've ever written down on a fee statement, "Talked out loud in a forceful voice while pacing my back porch, frequently scaring the dog and occasionally annoying a neighbor or two — 1.25 hours." But I have written entries like, "Prepared, revised, and practiced closing argument — 1.25 hours." Or: "Dictated outline for evidentiary strategy for proving up affirmative defenses of laches and estoppel — 0.50 hours." And that may have been done into a Dictaphone clutched in my drivers-wheel hand on the long open road between Houston and Corpus Christi.
So having thought all that through in detail over many years, and having discussed it with colleagues and clients on many occasions, I was pretty well prepared to be cross-examined on any aspect of my billing philosophies — including on that one sentence taken out of context. Talking to several of the jurors afterwards, I was relieved, but not surprised, to confirm that they'd understood all that. That case turned out to have other problems, but my testimony on attorneys' fees wasn't one of them. And as it happens, that's pretty much all I can say here about that case, lest I potentially create problems elsewhere!
The moral, nevertheless, is this: While cross-examination under oath may famously be the most powerful engine ever devised for the ferreting out of reluctant truths, the internet is making it a potentially more powerful engine just about every day — especially when used against the blissfully unaware (or the self-deceiving). Caveat blogger!
UPDATE (Thu May 31 @ 2:10pm): Scrolling through the .pdf of Dr. Lindeman's blog, I'm alternately sympathetic, stunned, amused, impressed, and appalled. I see posts mentioning, for example, lawyer Turkewitz. This suggests something that ought to be obvious, but bears repeating: There's a whole, whole lot more to this story, from just about every angle, than I or any other fairly casual inquisitor is going to be able to find out from bopping around the internet over the course of an hour or two.
Therefore, a long string of caveats, which you may interpret as ass-covering on my part (he's now probably a public figure for NYT v. Sullivan purposes, but unlike him, I've never tried to hide my actual identity behind my blogging pseudonym); it might be that, but it is also an attempt on my part to be more fair: I have no basis for any opinion about Dr. Lindeman's competency as a physician; my "diagnosis" of his mental state is obviously unqualified and made for purposes of satire. My comments about the ill-advised nature of his blogging about his malpractice case are statements of opinion on my part, admittedly based on less than all of the facts and from an outsider's perspective, but they demonstrate the very strong negative initial reaction that I and, I think, most other experienced courtroom lawyers would have on the superficial question of whether it's a good idea for anyone to blog about pending litigation in which they're involved. When a litigant blogs about his case, he runs great risks of inadvertently waiving attorney-client and other important privileges (e.g., those regarding the work product of consulting, non-testifying experts like his jury consultant). When a litigant who's insured blogs about his case, he runs some risk of jeopardizing his own insurance coverage; the insurer may take the position that the insured is failing to cooperate in his defense. I have no clue, however, to what extent, if any, those issues are raised by the facts of Dr. Lindeman's lawsuit.
I'm quite sure that, for example, opposing counsel would have dearly loved for the jury to learn that Dr. Lindeman had referred to her in his blog as "Carissa Lunt" because that would tend to prejudice many people against him. But how much of what was written in his blog might have become admissible evidence for the jurors in his trial to hear as part of his cross-examination would depend on a whole lot of very specific fact-specific inquiries, including some that involve complicated balancing of interests, and neither you, I, nor anyone who wasn't there for pretty much the whole trial can make confident predictions as to how all that would have played out. And his blog, and the questioning about it, may or may not have had anything to do with the timing or the amount of the settlement, and settlements can be and frequently are made for reasons having little or nothing to do with the settling parties' legal liability or moral culpability.
Bottom line: To whatever extent Dr. Lindeman's story does or doesn't prove it, I'll stand by my general "moral of the story" stated above.
Other weblog posts, if any, whose authors have linked to Self-immolation on the witness chair via the power of the internet and sent a trackback ping are listed here:
» June 5 roundup from Overlawyered
Tracked on Jun 5, 2007 4:53:12 PM
"I don't think I've ever written down on a fee statement, "Talked out loud in a forceful voice while pacing my back porch, frequently scaring the dog and occasionally annoying a neighbor or two — 1.25 hours.""
I would be deeply amused to find that on my bill. Then again, maybe not at $500 an hour.
(2) Mark L made the following comment | May 31, 2007 6:46:03 PM | Permalink
I *so* love the war stories. Even the ones that are not yours.
In Lindeman's situation, I'd want to get an opinion from a different lawyer, before agreeing to settle. Many of the things he posted on his weblog seem more prejudicial to his lawyers than to his own case. A defense lawyer in such a position might advise settling quickly in order to hide his own misconduct, rather than to protect his client. A session with a lawyer hitherto uninvolved could sort out the various risks.
I stopped reading the .pdf at this: "Flea supposes that attorney Lunt believes that poorly-educated young women are more likely to be sympathetic to her clients. Maybe she's right, but Flea would rather speak to fourteen poorly-educated young women rather than fourteen college-educated men. Flea spends all of his working hours speaking to young moms. Young women are his natural constituency.
[Beldar, there's a federal law that protects you from slanderous comments made on this site by your commenters.] This doctor's a f*&^ing moron!
In the world of science fiction fandom, and of small, personally created and published "fanzines", the decades-old wisdom has been, "Never write in a fanzine anything you wouldn't want to read on the front page of the Times."
Two observations: It's just as true for blogs, and people are still learning that the hard way.
A Biblical aphorism comes to mind — Pride goeth before a fall.
(7) Felix Kasza made the following comment | Jun 5, 2007 11:15:02 AM | Permalink
Apparently, I am the only one who thinks that the real dishonour here is that a med-mal case is decided by anything except, of course, the medical facts behind the case -- and that everybody here seems to take this for granted, a perfectly normal thing.
Those among you who are lawyers: Do you not sometimes feel a twinge of shame for being a lawyer?
Mr. Kasza, thank you for your comment. Because I am trained as a lawyer and have tried many jury cases, I know better than to presume, as you apparently do, that this med-mal case was in fact decided by something besides the medical facts.
I also know that terms like "the medical facts" are much more slippery than your comment seems to presume, and that in the real world whether that's the real world of a pediatrician's office or the real world of a courtroom "the medical facts" always include subjective judgments that, in turn, are inexorably bound up in the observers' and actors' expertise and perspective. That is why physicians sometimes, indeed often, have different opinions in their offices and hospitals; that is why they sometimes, indeed often, have different opinions in courtrooms.
My post said nothing about dishonor. But to answer your question: There are times when I am ashamed of myself, and times when I am ashamed of my profession, and other times when I am proud of both. I don't know enough about the specific facts of Dr. Lindeman's case to be ashamed or proud of anyone. And, respectfully, if you think you do, I think you're fooling yourself, or else that you're basing your reactions on something other than the specific facts of that case.
One of the things that Lindeman harped on, in his weblog, was that there was a lot of "overtesting" done in modern medicine. This is not the best attitude to be on record as espousing, when what you're accused of is failing to test for diabetes in a child who soon died of it, untreated. Hb1Ac blood tests are neither difficult nor expensive.
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