In Which It Is Said That Attribution is Desirable

I wrote an aside at Defending People about the growing trend in the blawgosphere of lawyers criticizing other lawyers’ ideas without naming the other lawyers.

It was, perhaps, unfair or inaccurate for me to call the practice “passive-aggressiveness.” I don’t know what motivates lawyers—I named Scott Greenfield, John Kindley, Jamison Koehler, Norm Pattis—who are increasingly referring to ideas without naming their authors (for example, Greenfield: “Plenty of people with . . . peculiar political views that color their idea of what it means to be a criminal defense lawyer”; Kindley: “what doubly offends RCDLs is that I suggest this while having a tiny fraction of the experience they do actually defending those accused of committing crimes”; Koehler: “the debate quickly moved past a discussion of the merits of the issue to a debate on the respective qualifications of people to engage in the debate itself”; Pattis: “Kindley has been criticized for aspiring to a Bugliosi-like posture”). Greenfield accepts the description with good grace; Kindley explains why he didn’t engage Greenfield directly; Koehler is busy writing about his fantasy football league and wondering, “And these are working lawyers? Where do they ever find the time?” And Pattis writes in favor of not attributing ideas with which we disagree:

But I don’t want law blogging to become the equivalent of Sam Adams Jr.’s tantrum: Issues matter to me; personalities don’t. There’s a nasty trend among bloggers to engage in ad hominem tripe: John Kindley of People v. State just got mobbed. He wrote a contrarian’s piece about justice and criminal law. What followed were comments about his profile on his webpage, etc. This is tedious grammar school antics. Sure, it’s fun to huff and puff and finger point at one another. But to what end?  Writers, like trial lawyers, are mere vehicles for the messages they convey: personalities rarely matter. If someone writes something I think ill founded, it is far less aggressive, whether passive or not, simply to disagree, than it is to advertise his or her error more effectively.

This is the pundit’s view: that attributing error is “aggressive.” (Because the pundit is the ultimate authority, such that all discussion ends with him?)

As a blogger, you should, attribute. You should attribute the thoughts with which you don’t agree as well as the thoughts with which you do. You should name the thinker, and you should link to the thought (possible exceptions exist for hate speech and other obnoxious attention-seeking).

Why? There are four reasons.

You should attribute for yourself. Citing without attribution invites sloppy writing and exaggeration, if not flat-out fabrication. As Pattis, above: “What followed were comments about his profile on his webpage, etc.” Really? What comments? Where? By whom? I’ve been following the discussion, and I haven’t seen it. I’m not teaching expository writing 101 here, but the passive voice encourages lax thinking, which is a risk factor for Alzheimer’s.

You should attribute for your readers. They should not have to take your word for what other people have said. Links are optimal, but if you’re unwilling to link, naming the speaker allows your readers to discover for themselves the words that were said, and their context.

Koehler, for example, says that poor Kindley is a victim, “left to defend himself on the basis of his age and experience” Okay, what has required him to defend himself on that basis? What was said that left him to defend himself on that basis? By whom, when, and where? Was it “you don’t have much experience, and therefore you’re wrong”? Was it “you’re wrong, and if you had more experience you’d see it”? Or was it “you crazy kids!”?

You should attribute for those with whom you disagree. Failing to attribute an idea doesn’t show respect for the thinker; to the contrary, it shows contempt. We’re all lawyers here; part of our job is to do verbal battle over ideas. Other bloggers are big boys and girls who can defend their ideas, and who want to do so. Treating them like fragile teacups dishonors them and their ideas.

Like Pattis, if someone mentions my name on the internet, I notice, and can respond or, if I’m persuaded, learn. If someone talks about my ideas without using my name, there’s no reason for me know it unless it’s in one of the few blogs I read regularly. It was not worth mention when Pattis was the only one doing it, but if everyone does it the blawgosphere will turn from a conversation to a disjoint set of bloviating pundits.

Most importantly, you should attribute for the blawgosphere. It’s not, as Pattis insinuates, about marketing, but about conversation. If marketing drove blogging practices, we would all to each other when we agreed and studiously ignore each other when we didn’t. Marketers aren’t interested in conversation unless it makes them look good.

A happyspherical lovefest doesn’t make for interesting reading; conflict does. Not attributing kills conversation; attributing facilitates honest discussion. Not attributing allows bloggers to refer to discussion in the blogosphere—as Koehler has referred to it—as “the self-righteous fury of the mob.” Which is great for the victimocrats among us (who, like Koehler, can bemoan the lot of poor “victim” John Kindley), but which is a conversational dead end.

For my part, I want to know when people disagree with me; if you think I’m being a fool, tell me. Don’t mutter about me behind my back. When I am (as here? possibly) wrong, I want to be told why, and when I am right, I want to rebut your argument. I want readers to be able to follow the discussion, so that they can reach their own conclusions.

Bad ideas left unchallenged thrive; bad ideas challenged get better. Attribution is not about personalities, but about dialectics. Pretend that there is no thinker behind the thought—take the pundit’s position, that your authority is so great that not naming those with whom you disagree is an act of mercy to them—and the discussion just ends. It’s no way to persuade (if that’s your objective); nor to synthesize ideas.

It is, rather, the online equivalent of talking about someone as though he’s not in the room, when in fact he is.

Not Enough Time

I recently offered Texas lawyers a free web marketing consultation. We did a little web-presence review, and I suggested some things they could do to improve their visibility (without outsourcing their reputations).

In response to the advice that the best way to do so was to produce new substantive content, as with a blog or a CMS, the refrain that I heard, time after time, was “I don’t have time for that.”

These were lawyers looking for more clients. Let’s suppose, conservatively, that they aspired to get only one additional client a month, and that they were real slackers, who would spend an average of two hours on a case, from beginning to end. So they wanted two additional hours of work a month, but they didn’t have time to spend a half hour a week blogging.

“I don’t have time” is an excuse. These lawyers think they have two hours a month for new cases, but not two hours a month for blogging. I know lawyers who play golf, who watch football, who hang out at bars, and who claim not to understand how I have time to write. (I tell them my days just have more hours than theirs.)

Like most things, it’s matter of priorities. When writing is more important to you than golf or football or alcohol, it’s easy to find time to write.

(I say “write” because the written word is the most indexable medium. Lawyers wanting to participate online could just as well record audio or video podcasts, or publish original photography or artwork.)

Theory: Reputation and Exposure

So there are two things a lawyer marketing herself online can seek: reputation and exposure. The two are not tethered: one can have any reputation, from terrible to terrific, in any sphere. Is it better for a lawyer to have a good reputation in a narrow sphere, or a poor reputation in a wide sphere?

Exposure is what the marketers, SEO gamers, and other self-styled experts, ninjas, and gurus are selling, with their empty promises of high search-engine placement. There are precious few who will assist you in building your reputation.

Why? Because online reputation-building requires that the customer do something more than write a fat check. It requires that he have a good reputation offline, that he be a competent communicator, and that he work hard. And if the customer has, is, and does these things he has little reason to write a fat check to some expert.

So you get these experts who want to make an easy buck off lawyers who want to develop their online presence. They can't do it by selling reputation (nobody can sell you a reputation) so they sell exposure.

The problem is, you see, that often exposure is inimical to reputation. Take the marketer—Sparta Townson, for example (previous SMT post)—who spams blog comments in the name of her clients. In theory (debunked theory, but theory nonetheless) she is increasing their exposure by "link-building," but the reputational harm she could cause in the process, when the bloggers take umbrage and name the customers, is tremendous.

Broadly speaking, online reputation is what people find when they google your name; online exposure is how likely you are to be found otherwise. If your reputation is bad, you don't want people finding you online. Tend to your reputation first.

Theory and SEO

[7/20/10 edits in red.]

Assuming that I haven't missed something completely, which, naturally, I have . . .

Humans communicate for fivesix reasons:

• To educate;
• To entertain;
• To persuade;
• To inspire;
  
• To attract; and
• To deceive.

Any discrete communication might serve one or more of these purposes. For example, with this sentence I aim to educate and to persuade.

Examples of communications intended to attract are Read the rest of this entry »

Who Makes the Rules of Social Media?

Jamie Spencer wrote a post about Sparta Townson, Internet Guru Girl; as of right now it comes up fifth on a search for her name (after her WordPress.com blog, her LinkedIn page, and her Twitter page). 

I wrote about Sparta Townson at Defending People as well, in the context of the marketing services she is trying to sell, as did Ken at Popehat.

Aside from the reputational questions for the lawyers who are Townson's target market, The story has interesting angles in the realm of pure social media, which belong here at SMT rather than Defending People. Read the rest of this entry »

The Unparodyables

Funniest thing today:

Some "real lawyers oh-so-busy practicing law" seem to have way too much time on their hands: http://tinyurl.com/3xfjcqt

That's New York social-media-for-lawyers yell leader Niki Black, this morning on Twitter. (Don't bother looking for the tweet, it was quickly deleted.)

The site to which the link points is a parody site, making fun of "third wave" lawyers and "legal rebels" (TWLs and LRs). Niki sees the hand of so-called real lawyers busy practicing law behind the obvious parody. Even the name on the site—"Dick Troll" is coarsely parodic.

Except . . . it's not. John Richard Troll, as a moment's investigation would have told Niki, is an Indianapolis lawyer, in practice for 25 years. The site is a sincere attempt to tout TWLs and LRs (who think they're new because they put a label on the things others have been quietly doing for fifteen years).

When followers of a rubric are themselves unable to distinguish earnest expressions of that rubric from parody, they probably shouldn't expect others to take them seriously.

The Internet: For Entertainment Purposes Only?

Set off by the kid on his lawn who left this comment:

It’s sad, really. You’re like Alkon, unable (or perhaps unwilling) to understand the culture of the Internet. So you take offense at our customs and violate our most sacred taboos, and when someone comes to educate you, you blow him off as a “narcissi(s)tic idiot.”

Scott Greenfield writes:

My child commenter, the World Ruler, is wrong, yet right.  There is a culture of which I am not a part.  While I may know more about it then most people of a certain age, it moves so quickly and morphs in ways I would never anticipate that it’s impossible to stay on top of it while watching from the outside.  And I have no delusion that I’m not on the outside.

My own theory of this cultural divide: as we get farther and farther from the Great Depression, America’s young become more and more comfortable that their basic needs will be met without a struggle. This leaves them free to focus on entertaining themselves with anonymous comments and practical jokes.

There are no “sacred taboos” in such a world. Lying is okay in the context of a prank, so the Amazon-bombing of Amy Alkon (who may very well be a repugnant human being) seems to them a perfectly appropriate response. In this new online world, perceived transgressors are not entitled to common decency.

Add to this the failure of U.S. public schools in the last century to teach rhetoric and logic, and it becomes obvious that those who call out the new generation for lying will be seen as racist neocons like Alkon.

The culture clash is between those who have character in the real world, and expect others to behave with character online; and those who don’t; between those who view near-universal online anonymity as a detriment, and those who view it as a benefit.

Oddly, the same clash could be described as being between those who treat the internet as a serious extension of meatspace, and those who don’t. Everything anonymously written on the internet suddenly makes sense if it’s labeled “for entertainment purposes only.”

That’s why we need have no fear that Scott’s World Ruler and his ilk will ever actually rule the world. No matter how carefully they craft their pseudonymous online personas, those personas will not (except in rare pathological instances) help the people in the real world get elected, hired, or even laid. Should the actual people accidentally reproduce, those personas will not help them feed or protect their offspring or themselves.

Despite cyberpunk dreams, human beings still exist in the real world, and in the real world, people can tell you’re a dog.

Social Media Narcissism Etc.

While Avvo was having a conference in Seattle last week (at which they and I were invited to speak, billed as “Three Angry Lawyers,” but only if we paid our own way), Scott Greenfield and Brian Tannebaum twitted using the #avvo hashtag. For example:

This #avvo used car salesman conference is deeply disturbing.

and

Remember something you avvocating maniacs, if you’re not a good lawyer, people will find out, despite your blogs and online garbage #avvo

Avvo was displaying the #avvo twitter timeline on the podium.

One of the attendees, Sonny Cohen, wrote a blog post, When Flames Erupt in the Twitter-enabled Conference Backchannel (no, seriously, that’s the title). Conceding that Scott and Brian “had some great points about abuse of social media, thoughtless blogging and even the alleged ‘social media gurus’ (SMG) who industrialize the process of building real human networks,” he nonetheless called them “harassers,” “flamers,” and “jackass” (half a jackass each, apparently).

Cohen’s post, and his Twitter response to Scott, were overwrought and self-important to the point of narcissism. It’s Twitter; if someone says something you don’t want to hear, you can block it. Brian and Scott didn’t even know that Avvo was displaying the timeline on the podium. (Had they known, they would have had a lot more fun with it.)

Saving for another day modern Homo Internetus’s tendency to throw around heavy words like “harassment” in response to the slightest criticism: are narcissism and hysteria prerequisites for a job as an internet marketer?

I posted a comment to the blog post, to the effect of “‘Harassers’? Really, Sonny? Credibility fail.” Or rather, I tried to post a comment, but Cohen did not publish it.

Add intellectual cowardice to the list of character traits that Cohen is displaying in this episode.

Twitter Strategy

A colleague followed me on twitter four times in a month. To do that, he would have had to unfollow me three times in a month. I asked him what was up with that. His reply:

I’ve found I don’t like to “follow” without being “followed” back.  Seems a one way conversation – not fun for me.

Why the Legal Profession Needs Us

There has been some omphaloskepsis lately among legal bloggers about the propriety of calling public attention to the lawyers who are responsible for the ethical and aesthetic mess created by online marketers.

Jamison Koehler writes:

Policing the blawgosphere and calling out specific lawyers on what are still debatable ethical issues seems to me, as I wrote on Greenfield’s site, paternalistic and futile.

And Carolyn Elefant (who is clear that ghost blogging is unethical) writes:

I don’t criticize Mark or Scott  for outing the ghostblogging lawyers, since Buchanan’s clients willingly provided testimonials and in doing so, put themselves out there.  Nor do I take issue with Brian Tannebaum’s decision to disclose lawyer marketers with tainted ethics records (in fact I interviewed him about it here) because frankly, that information is public record (even Avvo lists ethics violations).Nevertheless, I’m far less comfortable with criticisms like this one about the lawyers embroiled in the Total Attorneys ethics mess [Never mind that their names are also public record. MB.] or “naming names” of lawyers who advertise [Link missing from original] on what Eric Turkewitz has termed dreck blogs.

Carolyn’s reasoning is that

the lawyers who subscribed to services offered by Findlaw and Total Attorneys, both of which are ABA sponsors,  most likely believed that the ABA had vetted these companies’ practices before accepting their sponsorship dollars.

Any lawyer who holds that particular belief should be barred from the internet until she develops some sense. The ABA is a self-important voluntary tea-and-argument society. That it has any authority is a myth apparently popular among non-lawyers; its endorsement of a particular product (even if accepting advertising dollars constituted an endorsement), though, bears no weight. The ABA knows no more about social media than the average lawyer. It doesn’t vet its advertisers in a meaningful way—as we’ve seen—and shouldn’t be expected to.

Jamison calls the ethics of using ghostblawgers “debatable.” It may well be debatable (on the “people will argue about anything” principle) but, as I’ve commented elsewhere, I’ve yet to see the argument in favor that takes into account lawyers’ unique product and position in society. Ghostblogger Jenni Buchanan makes an effort at Blog for Profit but conveniently glosses over her own prime selling point, which happens also to be the prime argument for the unethicalness of ghostblogging: that lawyers blog to “give themselves credibility.”

There are those who are more comfortable trusting governing bodies to decide what is ethical, and are perhaps not comfortable enough with their own judgment or authority to tell others when they are wrong. Those people should certainly not be calling out others. Let’s take it as a given that those lawyers who are calling out people on ethical and aesthetic issues (beauty is truth, truth beauty) are themselves certain that those issues are not debatable. Either that, or they are willing to be publicly called out for being wrong. Or both.

Also, let’s take it as a given that those lawyers doing so care (not everyone cares about these issues, and that’s okay, Norm Pattis).

Jamison thinks that “policing the blawgosphere and calling out specific lawyers” is paternalistic and futile. I’ll take the adjectives in order.

As to paternalism, nobody is trying to act like the daddy of the blawgosphere. The cheaters are not chastised for their own good, but for the good of the community. So “Sheriff” is probably a more apt metaphor. The internet is largely lawless, a virtual wild west, and there’s nothing wrong with exercising your authority to try to impose a little order on your little corner of it to make it more agreeable to you. If that involves hurting a few feelings, well, you can’t make omelets without breaking eggs.

Maybe Jamison’s “paternalism” objection is that nobody elected Scott or Brian or me Sheriff (or “Top Cop“) of the blawgosphere. That’s true enough. But lots of people read Simple Justice (PR6), and it’s not because Scott Greenfield’s afraid of hurting people’s feelings. Fewer people read Defending People (PR5) and Criminal Defense (PR4), but the numbers are not inconsiderable. Bloggers have authority in proportion to how many people read them (and link to them) and people read and link to those three blogs, none of which is shy about publicly calling a fraud a fraud.

As to futility, consider the numbers. There are over a million lawyers in the U.S. 80% of them (according to a possibly-reliable source, the ABA) are solos or in small firms. Most of them are looking for a way to make more money. Most of them aren’t highly social-media-savvy. Call it at least 200,000 (most of most of 800,000) lawyers who are looking (some desperately) for a way to make more money and are not highly social-media-savvy.

There is a growing industry of people, not all of them disbarred lawyers, pouring poison in the ears of those 200,000 lawyers, trying to sell them on the next great way to find “leads” on the internet: comment spam, ghostblogging, splogging, dreckblogging to name just four.

If I run into a lawyer—one of the 200,000—who is funding comment spam, and I send him a gentle email, one of two things will happen: he will stop funding comment spam, or he will not. The latter outcome is more likely: since he doesn’t know that he will be named, he has little incentive to stop (the Bradley Johnson Rule)—comment spamming is probably not a violation of the DRs, and even if it were the State Bar wouldn’t do anything about it.

If he stops, that’s great: one down, 199,999 to go. (Woo hoo!) If he doesn’t, and if calling out the cheaters is wrong on principle, then I’ve done all I can. Talk about futility!

On the other hand, if I am willing to put the cheater’s name up in lights, he will eventually get the message:

[L]aw bloggers can do something about the law field spammers. Because unlike the other sites, these folks generally have very little Google juice and should actually care about their reputations. So if a few blogs decide to out the spammers, this could have a pretty big effect on the firms. When their names are Googled by potential clients, the potential clients will see that they are spammers. And it will no doubt cause them to stop.

Eric Turkewitz, New Spam Comment Policy for Law Firms (You Will Be Exposed)

That’s specific deterrence at work.

Not only will the specific cheater get the message, but some other lawyers in his position will get the message as well. That’s general deterrence.

People market themselves online to manipulate their reputations. One way or another—whether they pay FindLaw or Total Attorneys, hire a disgraced-former-lawyer “social media expert,” or do it themselves, they are putting themselves (as Carolyn might say) out there. The guys financing FindLaw to post dreckbloggen (Goldberg Sager & Associates; Arye Lustig & Sassower; Kahn, Gordon, Timko & Rodriquez to name but three) are reaping whatever (probably slight) benefit the dreck accumulates. They pay (lots of money) for their names to be publicly associated with the dreck; it’s appropriate for their names to be publicly associated with the opprobrium that dreck generates. As Scott writes:

There’s no right to enjoy the benefits of public self-promotion, assuming there are any, with impunity.  When you put yourself out there, you invite scrutiny.  If you can’t take it, then you’ve come to the wrong place.  Your peers may adore you or think you’re dumb as dirt, not to mention unethical, deceptive and scummy.  That’s the risk of going public.

Finally: I, for one, would just as soon not see more attempts by the state bars to regulate the internet: they will screw it up.

Our only hope of having rational rules for lawyer marketing online is to make and enforce them ourselves. And the only tool we have in any effort to enforce rational rules for lawyer marketing online is the credible threat of reputational harm resulting from misconduct. So even if you would never ever call out a lawyer who is (directly or indirectly) lying, cheating, or polluting, you should be glad that there are those of us who will.