Peter Friedman
Lawyer
Ruling Imagination: Law and Creativity
Friedman to judges and lawyers: don’t “friend” or “tweet” one another!
Ohio is one of the first states to address the use of social networking by judges. As explained by the Ohio Supreme Court on its web site, an opinion issued 2 days ago [embedded below] by the Ohio Board of Commissioners on Grievances & Discipline “advises judges that social media use is permitted but must be done with caution, and it offers wide ranging, specific guidance to judges on how to navigate the new waters of social media without violating judicial canons that require judges to avoid even the appearance of bias or impropriety.”
My reaction to the opinion — that judges ought to avoid entirely engaging in social media communications with anyone who is or may be a lawyer or a litigant in cases before them — is one people close to me would describe as “paranoid.” Perhaps I’m just risk averse. I think, though, that I’m principally concerned with integrity.
The issue is one that pertains to what are known as “ex parte communciations” — communication between a lawyer or a litigant with the judge without the presence or participation of the adversaries to the lawsuit in which the lawyer or litigant is appearing before the judge. Ex parte communications, except under very limited circumstances all of which ensure notification to the adversaries as soon as practicable, are absolutely forbidden. Our legal system is founded on its adversary nature — not in the sense that it requires fighting but, rather, in that it tries to ensure the voices relevant to the dispute all have equal access to the judge. If my adversary communicates with the judge, I have the opportunity to judge whether it’s worthy of a response and how to respond. We don’t leave to the judge to decide whether I should or can respond — the system ensures I make that decision.
The importance of avoiding ex parte communications was brought home to me in law school by the professor who was my supervising attorney in the clinic I was part of. I was representing a child as guardian ad litem in a child abuse and neglect case in family court in Flint, Michigan. The entire scene was grim — it was 1983, and Michigan had started the precipitous economic descent it suffered at the hands of the auto industry. Unemployment in Flint was through the roof (even in 2010 terms). Abuse and neglect claims had increased. That day it was freezing and pouring rain.
After our hearing, my professor/supervisor and I stood sheltered in an entranceway to the courthouse, hoping the rain would abate a bit so we could make it to our car without getting to0 rain-soaked. As we stood there, the door opened and the judge before whom we’d just appeared stepped out, smiled, and started speaking with us, obviously intent on the same endeavor we were — waiting out the rain in the doorway. My professor immediately wished the judge a good day and, grabbing my arm, led us out into the deluge. When we’d made it to the car I asked her what in the world she had been thinking. She responded, “You do not communicate with a judge without the other side present. It’s wrong!”
It makes perfect sense to me. If the other side has an opportunity to communicate with the judge without my knowledge, how am I supposed to judge what I should let the judge know? Unfortunately, some important people seem to have underestimated the fundamental importance of this rule. Justice Scalia seems not to have worried that hunting with Dick Cheney might be deemed a compromise of the integrity of his court judging a case in which Cheney was a party. Justice Thomas’s willingness to speak before and maintain other relationships with conservative groups with a stake in cases before the Supreme Court are notorious.
And now comes the Ohio Supreme Court suggesting that as long as a judge is really careful he can communicate via social networks with people who are litigating cases in his court. I think it stinks. I would tell a judge not to allow access via social networks to litigants or potential litigants. And I’d tell any lawyer to stay away from networking with a judge before whom he will or may appear.
Incidentally, I don’t think the Ohio Supreme Court’s “guidance” really is all that helpful anyway. Essentially, the guidelines leave to the judge the determination of what is and is not appropriate, acknowledging there are no “bright lines” distinguishing between the two:
- To comply with Jud. Cond. Rule 1.2., a judge must maintain dignity in every comment, photograph, and other information shared on the social networking site.
- To comply with Jud. Cond. Rule 2.4(C), a judge must not foster social networking interactions with individuals or organizations if such communications erode confidence in the independence of judicial decision making.
- To comply with Jud. Cond. Rule 2.9 (A), a judge should not make comments on a social networking site about any matters pending before the judge – not to a party, not to a counsel for a party, not to anyone.
- To comply with Jud. Cond. Rule 2.9 (C), a judge should not view a party’s or witnesses’ pages on a social networking site and should not use social networking sites to obtain information regarding the matter before the judge.
- To comply with Jud. Cond. Rule 2.10, a judge should avoid making any comments on a social networking site about a pending or impending matter in any court.
- To comply with Jud. Cond. Rule 2.11 (A)(1), a judge should disqualify himself or herself from a proceeding when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer or party. There is no bright-line rule: not all social relationships, online or otherwise, require a judge disqualification.
- To comply with Jud. Cond. Rule 3.10, a judge may not give legal advice to others on a social networking site.
I’m one of the Top 100 Twitterers in the Legal World!
Hey, I’m one of the Top 100 Twitterers in the Legal World! (I’m @pbfriedman.)
Does online writing produce better writers? IMHO, it can, but hasn’t yet to any great degree.
In the Chronicle of Higher Education, Josh Keller asks: does the explosion of online writing via social networking sites mean that we’re developing a better generation of writers?
The long and the short of it is that no one knows. Students are writing a lot more, and to audiences about whom they care. On the other hand, Facebook, Twitter, and blogs do not exactly seem to promote the kind of disciplined analysis that most good writing constitutes:
Some scholars say that this new writing is more engaged and more connected to an audience, and that colleges should encourage students to bring lessons from that writing into the classroom. Others argue that tweets and blog posts enforce bad writing habits and have little relevance to the kind of sustained, focused argument that academic work demands.
The debate seems to boil down to whether more writing produces better writing. One researcher states, “People write more now than ever. In order to interact on the Web, you have to write.” But writing, on the one hand, for Facebook and, on the other, to produce an analytic essay or a legal brief, is writing for entirely different purposes. Sometimes I wonder if the differences are like driving to a Friday night party and driving in the Indy 500 — skill at one does not necessarily translate into skill in the other. As one writing professor quoted in the Chronicle of Higher Education article points out,
[H]e spends more of his time correcting, not integrating, the writing habits that students pick up outside of class. The students in his English courses often turn in papers that are “stylistically impoverished,” and the Internet is partly to blame, he says. Writing for one’s peers online, he says, encourages the kind of quick, unfocused thought that results in a scarcity of coherent sentences and a limited vocabulary.
My own views on the effects of online writing on professional writing are mixed — it hasn’t been the benefit idealists hope for, but it’s an outstanding tool that, properly used, could be a tremendous benefit to producing a new generation of excellent writers.
On the one hand, I have encountered again and again in the past couple of years student efforts at professional writing that are so stylistically inappropriate as to make me cringe. I recently read, for example, an analysis of the jury system that read entirely like a People Magazine article, full of superficial quips and an endless series of references to examples obvious to everyone – the principal point of reference was the O.J. Simpson trial (which, incidentally, I consider an example of atrocious lawyering on the part of the prosecutors, not a failure of the jury system).
On the other hand, the internet is here, and we better get used to it, even if we are training lawyers or political analysts. Students write a lot on social networking sites. As the article points out, “Students in [one] study ‘almost always’ had more enthusiasm for the writing they were doing outside of class than for their academic work . . . .” Moreover, online writing is “self-directed,” is “often used to connect with peers” and usually is aimed at a “broader audience” than is professional writing. One of the most interesting points to me as a legal writer is that online writing is “also often associated with accomplishing an immediate, concrete goal, such as organizing a group of people or accomplishing a political end . . . .”
These are all characteristics that quite plainly can be used to produce better professional writers even if they have not yet been used effectively to this end. I have struggled to exploit student enthusiasm for online writing. Two years ago, I created a class wiki directed at creating a brief writing check list. I did not consider the effort terribly successful. One year ago, however, I created (as the Chronicle of Higher Education noticed) a class blog to explore issues regarding copyright and fair use in connection with a legal brief the students were assigned to write. While the blog became almost entirely the product of my own work rather than that of my students, it was a huge success in producing better work product. The students were engaged in and argued about the blog, and that engagement and passion produced work that was far more thoughtful and disciplined than anything I could have imagined without the blog.
So does Web 2.0 produce better writers? If you think it does so merely because it makes people write more, no. But it is a tool that, properly employed, sure can help.
The Case of the Twittering Witness
From Law.com: “Miami-Dade Circuit Judge Scott Silverman declared a mistrial in a civil fraud case Wednesday after being informed a witness on the stand in his courtroom had engaged in text-messaging while the judge spoke with attorneys during a sidebar conference.” Techdirt is right in suggesting that the intersection of the “new media” with our old institutions is going to raise more and more problems like this one:
It seems as though very few people have really thought through the implications of the many channels of communication that every individual now has with them, and how that changes common assumptions about how people can and will communicate, even in “constrained” areas.
Tweets on Law Practice
Matthew Homann, at the [non]billable hour, has published 100 Tweets: Thinking About Law Practice in 140 Characters or Less (pdf). His advice is terrific. Here are some of my favorites:
1. “My lawyer can beat up your lawyer” is not a marketing strategy. “My lawyer will call me back before yours will” is.
8. The most significant advantage you possess over lawyers who’ve come before you is that you don’t believe what they do.
16. The confused mind always says no.
28. You should never have a bigger monitor or more comfortable chair than your secretaries do.
53. Never confuse your desire to explain something with yourability to do so.
84. Trying to learn client service in ethics class is like trying to learn to ride a bicycle by watching lots of bike accidents.
By the way, on Twitter, I’m “@pbfriedman.”
Is republication of Mark Cuban’s tweet on Twitter non-infringing? Almost certainly it is.
Here is a question for all you legal scholars out there. Is a tweet copyrightable? Is a tweet copyrighted by default when its published ? Can there possibly be a fair use exception for something that is only 140 characters or less ?
Well, sure, a “tweet” might be protected by copyright. The more creative it is, the more powerful is the protection. Cuban wouldn’t be wondering whether a 140 character poem by William Carlos Williams could be protected by copyright.
The question would only come up, though, if the author of the tweet was claiming someone had infringed his copyright. If Cuban, for example, claimed ESPN were infringing the copyright in his tweet, I strongly suspect the use would be a non-infringing fair use. Nevertheless, my ultimate conclusion would require consideration of the specific message Cuban is talking about and application of the specific facts in dispute under the appicable analysis:
(1) What is the nature and character of the allegedly infringing use? The more creative it is in its own right or the more it is an instance of the type of expression protected by the First Amendment (journalism or political speech, for example), the more likely it is to be a non-infringing fair use. The fact ESPN, an outlet for sports journalism, would be transmitting the words of Mark Cuban, the owner of a sports franchise (the Dallas Mavericks of the NBA), makes it seem more likely ESPN is engaged in legitimate journalism . . . , but
(2) What is the nature of the copyrighted work? The more creative or journalistic or political the expression, the less likely use of it without permission will be fair use. And the fact the work is available anyway would cut in favor of ESPN’s use of it being a fair use. This factor is almost impossible to determine based on Cuban’s hypothetical question. There can be 140 words that are as creative and expressive as anything can be (think Shakespeare or William Carlos Williams), or the 140 words might be utterly an utterly generic report about facts Cuban is passing on, or the 140 words might be mostly lifted from someone else. So which way and how hard this factor would cut on this hypothetical is without examining the specific words difficult to tell. It is, nonetheless, difficult to believe much creativity would be produced by Mark Cuban in a tweet. Moreover, the fact Cuban has already transmitted it via Twitter to everyone that follows him indicates that he doesn’t have that strong an interest in controlling the use of the words.
(3) How much of the copyrighted work is taken? Assuming ESPN takes the entire 140 characters, I suppose this factor cuts against ESPN’s claim of fair use, but, of course, the brevity of the entirety (under factor 2) cuts in favor of fair use, so in the abstract the two factors nullify one another. This is one reason hypothetical questions are useful, but only of limited use, in answering legal questions. One can only take abstract hypotheticals so far. 140 characters written by Shakespeare in a play are probably very different than 140 characters written by Mark Cuban in a tweet, but they might not be.
(4) How much does the allegedly infringing work affect the market for the copyrighted work? Is there a market for Mark Cuban’s tweets? It’s hard to believe there might be.
In short, I’d advise Cuban to be very light-hearted and laid back about ESPN republishing his tweets. If he really thinks he’s got something so worthwhile he should have the exclusive right to its commercial value, he shouldn’t have put it out on Twitter in the first place.