Blogging
the spotlight
They’re transforming the delivery of news and putting mass media outlets on the run. They’re changing the rules of publishing to favour the sole practitioner over the big corporation. They’re blogs, and they have the potential to reshape how lawyers communicate with clients and with each other.
By Jared Adams
Unheard of just a few years ago, bloggers (or Web loggers) are the vanguard of a whole new approach to communications and mass media. Using simple publishing tools on the Internet, bloggers produce Websites that provide regular instalments of their own news, opinion and analysis.
“Do it because you like to do it. Don’t do it just for marketing purposes or to raise your profile.”
Michael Fitzgibbon, Borden Ladner Gervais, Toronto
http://labourlawblog.typepad.com |
Some blogs consist of the minutest details of otherwise unremarkable lives, or provide near-obsessive levels of discourse on everything from Bono to Buffy to baseball. But others are offering professional-grade insights in important fields and becoming true opinion leaders on the Net, gaining massive online followings. They’re the op/ed columnists of the Internet, and they’re wielding more influence by the day. And more than a few of them are lawyers.
More and more lawyers are joining the "blogosphere" (the loose confederacy of those speaking out on the Web) every day, authoring their own blogs (or "blawgs," a term coined by American lawyer and blogger Denise Howell). These online journals track recent cases and developments, provide links to judgments and articles of interest, allow the authors to provide their own commentaries, and encourage feedback from professionals and potential clients alike.
As interactive newsletters published in real time, they allow practitioners to disseminate their opinions as news breaks. Law blogs cover virtually every area of practice, from air and space law to wills and estates. Increasingly, they’re also coming to be seen as an essential part of new media marketing strategies. But with plenty of caseloads and commitments, why would a lawyer hang out a Blawg shingle on the Web?
Benefits of blogging
In fact, one of the main benefits of becoming a blawgger is the bottom line. Michael Fitzgibbon of Borden Ladner Gervais in Toronto, the voice behind "Thoughts From a Management Lawyer," (http://labourlawblog.typepad.com), has been offering his thoughts on labour and employment law since May 2003. Mixing links and analysis, Fitzgibbon’s blawg has proven to be a marketing tool, an invaluable way to make contacts, and a means of raising his own profile within the profession.
"It really increases your visibility and exposure, and in doing so, gives you a number of opportunities and contacts," he says. "It allows you to present your expertise to other people in a way they wouldn’t normally have been able to experience, and allows them to see you as an expert."
In the process, Fitzgibbon has made invaluable contacts. "Once you start a blog, you automatically start to build a relationship with other law bloggers, and there’s a growing number of us," he says. "Since I started mine, there have been more and more lawyers that have started blawgs of their own. And my experience with it has been rewarding from the very beginning."
But Fitzgibbon is quick to add that if you’re only considering a blawg for the business or self-promotional aspects, you might as well not bother. "You have to do it because you like to do it as a person," he says. "Don’t do it just for marketing purposes or to raise your profile."
David Fraser, a lawyer with McInnes Cooper in Halifax and the blogger behind "PIPEDA and Canadian Privacy Law" (http://pipeda.blogspot.com), says his foray into blogging came as a natural extension of perusing them during his time online.
"I found blogs incredibly interesting to read," says Fraser, whose blawg tracks the latest developments in privacy laws from around the world and provides occasional analysis. "I wanted to set up a place to aggregate stories for my own use, and that’s how it started. Initially, I wasn’t sure I had the ability or the attention span to keep it going, because it does take time." Since launching his blog at the end of 2003, Fraser has seen his site traffic rise to 150-300 readers per day.
Fraser also felt the urge to keep others up to date on privacy law developments. "I figured, if I find it useful, there’s probably an interest out there, from lawyers and the public, in reading about privacy law," he says. "A lot of the responses [I received] were from people who had questions and found the blawg interesting and useful."
While his privacy blawg didn’t start out as a business tool, that’s what it has become. He now receives offers of speaking engagements from clients nationwide, from brand new clients, and from a growing multidisciplinary network that spans continents. "It’s a great source for professional networking," he says.
The nature of both blogs and the Internet itself also allows blawggers to receive instant feedback to their posts. Most blogs come with a built-in feature that allows readers to leave comments at the end of every post, advancing their own views or responding to issues raised. And since many of the readers are lawyers who are never shy of opinions, it’s opened up a whole new type of peer review quite different from what lawyers have seen before.
"You do have to have expertise on the topic you’re writing about, because other experts will read your posts," Fraser points out. "Lawyers traditionally publish in journals, but once you’re writing in a blog, there’s no ‘adult supervision’ — like editors — at all. So if you make a mistake, you’ll get called on it. Or worse, you won’t — but it’ll diminish your reputation among your peers."
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The blog and the ban
"Recent technological advances have brought with them considerable difficulties for those who seek to enforce [publication] bans. In this global electronic age, meaningfully restricting the flow of information is becoming increasingly difficult. Therefore, the actual effect of bans on jury impartiality is substantially diminishing."
— Chief Justice Brian Dickson, Dagenais v. CBC, 1994
Publication bans are intended to protect fair trials by preventing tainting of the jury pool. That was why Justice John Gomery banned the publication this spring of testimony at the Gomery Inquiry by Quebec ad executive Jean Brault, who’s facing trial on fraud charges.
But the Montreal inquiry was open to the media and the public, so details of the testimony started circulating in political and media circles, although by law, they could go no farther.
Enter blogger Ed Morrissey of Minneapolis, who in April began publishing second-hand accounts of Brault’s testimony on his blog, "Captain’s Quarters," just days after the ban was imposed. "In an age of instant communications and greater freedom of the press, one would think that this kind of publication ban would obviously prove futile," he wrote in his blog.
Morrissey’s revelations sent the gagged and frustrated Canadian media into a frenzy — while they couldn’t repeat what he’d written, they made sure everyone knew that he’d written it. On April 7, Gomery lifted the ban.
So have bloggers and the Internet rendered publication bans obsolete? "No," says Peter Jacobsen, a media lawyer with Bersenas Jacobsen Chouest Thomson Blackburn in Toronto, "because I think the jury pool, for the most part, will not have read information on the Internet."
Jacobsen, who chairs the Media & Freedom of Expression Committee of the CBA’s Media Law Section, says the "chattering classes" overestimate the media’s influence. "I think you could easily find a great number of people in Montreal who don’t know anything about the Gomery inquiry and couldn’t care less."
James Rossiter, a media lawyer with Wickwire Holm in Halifax, agrees. "A publication ban is designed to blunt mass distribution and it does that, even in a notorious case where all the information is available on the Internet," he says. "‘Joe Nonchalant’ might read a story over coffee in the morning if it happens to be in the [newspaper], but he might not care enough to search it out on the Internet."
But Rossiter acknowledges that this could change. "The more technology becomes the distributor, the less effective the publication ban will be." And Jon Festinger, a media lawyer with Koffman Kalef in Vancouver agrees. "We can’t enforce any longer, through juridical means, a return to the information-gathering habits of Canadians in the 1930s or 1940s. It’s not realistic."
Rossiter says publication bans have a noble purpose, but their underlying premise is "based on the flawed thinking that jurors can’t be trusted to leave outside the courtroom what they see and hear, and the flawed thinking that they’ll even care enough to read in the first instance."
Bans are "ill-advised, because there’s been lots of evidence that, in spite of broad publication, you can still find jurors who are capable of rendering an impartial verdict," agrees Jacobsen. He says that allowing lawyers to ask more questions of potential jurors could help counteract the effects of media coverage.
— Lydia Dotto
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Law firm factors
That risk of reputation also means that law firm lawyers have to tread carefully. Even though they’re publishing their own opinions, their words could reflect on their employers’ reputation, and errors of accuracy or judgment can have ramifications. And despite the transient nature of the Internet, blog posts — like anything else unleashed on the Internet — can linger for years.
Sander Gelsing is a lawyer with Sisson Warren Sinclair in Red Deer, Alberta, who operates "Now, Why Didn’t I Think of That?" (www.gelsing.ca/blog/), which deals with patent and trademark issues. He says that despite the approval he receives from his law office colleagues, he’s always conscious that without the proper forethought, words on the screen can easily translate into big problems.
"As a professional, I don’t have anything bad to say anyway," he notes. "But I do try to keep my blawg away from the firm, which is why it’s part of my own personal Website. I look at it like everyday life — whether I’m writing in my blawg or giving a presentation, I’m aware of what I’m saying. So why should the Internet be any different?"
Fitzgibbon receives "a lot of support" from his large national firm, Borden Ladner Gervais. But he agrees: "People have to exercise good judgment in what they post," he says. "It will be seen as a reflection on the parent firm. I’m not casual about what I post, and I am very conscious of the fact this is a public medium."
Rob Hyndman is a technology lawyer in sole practice in Toronto who runs a legal technology blog through his personal Website http://www.robhyndman.com. Formerly in practice with a large Bay Street firm, he had been "watching blawgs for about two years," he recalls. "I wanted to start my own blawg, but I didn’t think it would work well [at the firm]." It wasn’t until he went into practice for himself that he decided to make the jump from reader to writer.
"Blawgging is an interesting thing for large firms to deal with," he observes. "There’s lots of layers of management that need to be brought onside with the new marketing strategies, of which blawgging is a part. Large companies are often several years behind new developments in technology."
Public perception is another issue, adds Hyndman. "Large firms are also more likely to be nervous and to want to control, from an editorial standpoint, the impressions of the firm. If you’ve got 30 junior to mid-level lawyers who are writing blawgs and making it known that they’re members of the firm, it’s hard to keep that control."
All the same, Hyndman thinks that eventually, large firms will be more accepting of blawgs — but the key word is eventually. "My sense is that it’s going to take a while for the larger organizations to get onside — for them to decide who should be blawgging, how to control what they’re writing about, and how it fits in with the overall marketing strategy."
New communications
Blawggers already know their areas of law and have confidence in their opinions and insights. But do they necessarily know who’s reading their blawgs? "That’s an interesting question," says Hyndman. "I went through a period where I was consciously writing towards the audience I wanted to have.
"But one of the powerful aspects of blogging is the immediacy and the intimacy of it," he says. "I found it was more powerful if I wrote about these topics authentically, in my own voice, rather than what I think people want to hear."
The urge to write authentically also reveals another key motivator for lawyers who find the time to blawg in spite of client pressures and billable-hour demands. Many lawyers are also frustrated writers, and blawgging gives them an outlet to scratch that itch in a more creative fashion than factums and contracts allow.
Gelsing, for example, was considering writing a weekly column for a local newspaper before launching his blawg. Fraser says he does "a fair amount of writing" and his blawg provides links to other articles he’s written in the past. And Fitzgibbon says that it’s the communication, plain and simple that works for him.
"[Blawgging] is a very powerful means of communication, and anything that facilitates the communication process is something that we, as lawyers, should be interested in," he says.
There’s also the fraternity aspect: one of the principal audiences for blawggers is other blawggers. E-mails are exchanged, comments are left and relationships grow, despite the fact that the parties involved might never actually come face-to-face.
Hyndman says he’s met what he considers to be the majority of Canadian blawggers, either in person or online. Fraser adds that the response to his blawg, from both the public and from other lawyers, has helped him meet other privacy lawyers. "One of the benefits is the sense of community," Gelsing agrees. "It’s allowed me to get involved with other IP lawyers, and that helps me keep up-to-date and informed on the latest developments in the area."
Lawyers and communication go hand in hand, which is why American blawgger Kevin O’Keefe goes so far as to say that lawyers might even have a moral obligation to blawg. "The American Bar Association Model Rules of Professional Conduct and a number of states have ethical rules and guidelines saying a lawyer has a moral obligation to engage in public interest legal service," he wrote recently at "Real Lawyers Have Blogs" (http://kevin.lexblog.com).
"Traditionally, this has meant pro bono cases, accepting appointments, membership in legal services organizations, law reform activities or involvement in non-profit and court-annexed limited legal services programs," added O’Keefe. "But why not [include] providing public education on the law as a way for lawyers to meet their moral and social obligations?"
Blawgs offer the potential to be more than just soapboxes — they can serve as signposts for lawyers and the general public alike, pointing them to legal issues and decisions that might otherwise slip beneath the notice of the mainstream media. Thanks to the viral nature of the medium, a post about a noteworthy event or decision will most likely be linked to by other bloggers, spreading the word across the Internet like wildfire.
Fun and future
For most blawggers, the commitment required to keep their blawgs up to date makes them labours of love. And while the time commitment isn’t as great as you might think — some blawggers spend just half an hour a day at the blawg, time they would ordinarily spend reading articles of interest anyway — the fact remains that for most blawggers, it’s just plain enjoyable.
"There’s a fun aspect to it," Gelsing says. "It’s interesting trying to find out what’s new and what the latest thinking is, what others are saying, and seeing what everyone else is doing. I do enjoy it overall, or I wouldn’t be doing it."
Are blogs (and their legal offspring blawgs) simply a fad? Will they disappear once the novelty wears off and the resource drain takes its toll? Any new media development must demonstrate staying power over a number of years, but their growing popularity and increasing influence on more traditional media bode well for blogs’ future. And lawyers will still be along for the ride.
Gelsing has watched computers evolve from the Apple II of the 1980s to today’s multimedia desktops, and once operated a computer bulletin board system (BBS), the precursor to today’s Internet. He says he’ll be along for the ride as along as the technology is.
"I’ll be doing it if blogging is still around," he says. "Who knows? Maybe there’ll be another format that will supercede it. If that’s the case, I’ll probably adopt that."
Hyndman agrees. "It’ll be different," he says. "I’ll still be writing, but the technology will evolve. That’s one of the things about it. Technologies have almost completely transformed the ability of the little guys to engage in one-to-many communication. And in 12 to 24 months, it’ll be different again. There’ll always be new ways of using the technology."
"I’ll still be doing this ten years down the line regardless," concludes Fitzgibbon. "Because I like to do it, and I enjoy it."
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Get blogging
Interested in starting a blog? Here are some tips from lawyers who’ve already ventured forth into the blogosphere:
1. Don’t be put off by the technology.
There are a number of do-it-yourself blog sites, including blogspot.com, blogger.com, typepad.com and sixapart.com, to walk you through the process. "A lot of people think it takes a lot of technological knowledge to start a blog," says Fitzgibbon. "It looks complicated, but it isn’t."
2. Choose your area of specialization.
While there are a lot of general-interest blogs out there, the real market is for niche specialists. "Blogs are probably most useful if you have a niche practice or specific area of expertise," Fraser says. "You really get to appreciate the expertise of the writer through their blog."
3. Make sure you’re committed to regular updating.
Just like any other publication, blogs live and die by their content. "It takes time and effort," says Fraser. "The Web is littered with blogs with just five or six postings, and then the author just stopped. It’s just kind of a lost effort if that happens."
4. Don’t let it take priority over day-to-day work.
Half an hour per day is okay, but spending two or three hours updating is time that could be better spent elsewhere. "I usually spend about a half-hour a day on my blog," Gelsing estimates. "After about 45 minutes, I start to feel a little antsy. Then it’s cutting into either personal or billable time."
5. Don’t be afraid to ask for help.
The blogosphere is a pretty informal place, and most bloggers won’t hesitate to lend a helping hand when called upon. "Bloggers are people who have an interest in communicating like this, and they’re very friendly people and easy to deal with," says Fraser. "I get a call every couple of weeks from someone looking for help setting one up."
6. Check with your firm to avoid problems.
While it’s more common in the U.S. to see employees terminated for what they’ve written on their blogs, it can still happen in Canada. For more details on blogging responsibly and maintaining a blog in a law firm environment, check out one of Fitzgibbons’ recent entries at http://labourlawblog.typepad.com/managementupdates/2005/03/more_on_corpora.html.
7. Think before you post.
As with anything else on the Internet, your blog entries will be indexed and archived and will be available for years to come, providing a permanent record of any blunders. "Even though my blog is my personal opinion, I do watch what I say, because it can reflect on the firm," Gelsing says.
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Jared Adams is the assistant editor of National. His last article, "Kick-starting your financial future," appeared in our December 2004 issue.
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english
Bla bla blogue
À mi-chemin entre l’anonymat du foyer et la notoriété que procurent les médias de masse, les blogues offrent aux juristes une nouvelle vitrine pour se faire connaître.
Créations récentes de l’ère Internet, les blogues révolutionnent le monde des médias de masse. Simples à utiliser, ils permettent au commun des mortels de faire part de ses opinions et de publiciser les nouvelles qui le concerne au moyen de son propre site Web.
Qu’ils vouent un culte à Bono, au baseball ou à Bilbo le Hobbit, des milliers d’inconnus peuvent désormais partager leur passion avec un public planétaire. Mais les blogues ne servent pas seulement qu’à traiter de loisirs. Un nombre croissant de juristes s’aventurent dans la blogosphère.
Ces éditeurs maison recensent les jugements les plus récents dans un champ de pratique précis, font part de nouvelles avancées législatives, émettent leurs commentaires suite à une décision et espèrent que d’autres professionnels du milieu ou de futurs clients répondront présents à l’appel.
Les avantages
Mais qu’est-ce qui pousse un juriste à ajouter une autre tâche à son horaire de travail déjà fort rempli? Le marketing, répond Michael Fitzgibbon, avocat chez Borden Ladner Gervais à Toronto et créateur d’un blogue consacré au droit du travail et de l’emploi (http://labourlawblog.typepad.com). « Vous devenez plus visible et multipliez ainsi les occasions d’affaires et les contacts, déclare-t-il. Vous pouvez faire valoir vos connaissances d’une façon différente et devenir ainsi un expert aux yeux des gens. »
Les efforts promotionnels n’expliquent cependant pas tout. Pour David Fraser, avocat chez McInnes Cooper à Halifax et créateur d’un blogue portant sur le droit fédéral régissant la protection de la vie privée (http://pipeda.blogspot.com), il importe d’abord de s’intéresser à la bête. « J’ai toujours trouvé que les les blogues constituaient une lecture fascinante, explique-t-il. Je voulais bénéficier d’un espace public pour raconter mes propres histoires et c’est comme ça que tout a commencé. »
La prudence s’impose
Une liberté de « raconter ses histoires » qui ne s’exerce toutefois pas sans prudence. Même si les blogeurs parlent en leur nom personnel, leurs propos peuvent toujours être associés erronément au cabinet au sein duquel ils oeuvrent. « J’essaie que l’on puisse le plus possible distinguer mon blogue du cabinet pour lequel je travaille, commente Sander Gelsing, avocat au sein du cabinet Sisson Warren Sinclair à Red Deer en Alberta, et créateur d’un blogue portant sur les brevets et marques de commerce (www.gelsing.ca/blog/). C’est ce qui explique pourquoi mon blogue est partie intégrante de mon site Web personnel. »
Rob Hyndman, un juriste spécialisé en droit des technologies à Toronto et qui dispose d’un blogue sur le sujet (http://www.robhyndman.com), a quant à lui choisi d’attendre de pratiquer le droit à son propre compte avant de se lancer dans l’aventure. « Il est difficile pour un cabinet de gérer les blogues », croit-il. Il ajoute que les grandes entreprises sont souvent lentes à adhérer à de nouveaux courants technologiques.
Toujours selon Hyndman, la perception du public peut aussi devenir un problème. « Les grands cabinets risquent de devenir plus nerveux et souhaiter pouvoir contrôler le contenu éditorial afin qu’il reflète leur point de vue, explique-t-il. Si trente de vos jeunes avocats ont leur propre blogue et publicisent leur appartenance au cabinet, il devient alors difficile de garder le contrôle. »
Pour le simple plaisir
Si les blogueurs du monde juridique connaissent bien leur domaine d’expertise et croient en la solidité de leurs commentaires, qu’en est-il de la connaissance de leur public? Que savent-ils de ceux qui les lisent? « C’est une bonne question, répond Hyndman. Il fut une époque où je rédigeais mon blogue en tenant compte du public que je souhaitais atteindre. » Il a toutefois choisi d’émettre désormais son opinion plus librement. « Je trouve que ce que je dis a plus d’impact si je l’exprime de façon authentique plutôt que de me contenter de dire ce que les gens aimeraient entendre. »
Cette quête de l’authenticité met en lumière un autre aspect de ce qui pousse certains juristes à bloguer. Écrivains parfois frustrés, ils y trouvent un espace de création et de liberté. « [Bloguer] est une forme de communication très puissante et tout juriste devrait s’intéresser à ce qui facilite la communication », estime Fitzgibbon.
Pour la plupart des blogueurs, le plaisir qu’ils ont à mettre à jour leur forum surpasse le labeur que cela implique. De toute façon, ils y consacrent rarement plus d’une demi-heure par jour. Si on en croit ces passionnés, les blogues n’ont pas fini d’évoluer. « Le développement des technologies a fait en sorte que le gars d’à côté ait accès aux privilèges de la communication de masse, affirme Gelsing. Dans 12 à 24 mois, ce sera encore différent. Il y aura toujours de nouvelles façons d’avoir recours à la technologie.
Et les blogues juridiques en français, ça existe? Malgré nos recherches, nous n’avons pu retracer de blogue d’ici en français et à teneur juridique. Toutefois, faites-nous signe si l’une de ces créatures croise votre chemin!
– Mélanie Raymond |
