As Ivy League-educated pediatrician Robert P. Lindeman sat on the stand in Suffolk Superior Court this month, defending himself in a malpractice suit involving the death of a 12-year-old patient, the opposing counsel startled him with a question.Oh, there's always one more way that blogging can get you in trouble. Here's a tip. Don't blog anonymously unless you're ready to accept all the consequences that would come if everyone suddenly knew it was you. Congratulations to the lawyer who figured out that she should ask that question on cross. You know, I love to support bloggers, but this doctor totally deserved what he got.
Was Lindeman Flea?
Flea, jurors in the case didn't know, was the screen name for a blogger who had written often and at length about a trial remarkably similar to the one that was going on in the courtroom that day.
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.
With the jury looking on in puzzlement, Lindeman admitted that he was, in fact, Flea.
The next morning, on May 15, he agreed to pay what members of Boston's tight-knit legal community describe as a substantial settlement -- case closed.
In April, before the trial began, he wrote about meeting with an expert on juries who advised him how to act when he was cross- examined. Flea was instructed to angle his chair slightly toward the jury, keep his hands folded in his lap, and face the jury when answering questions, slowly. "Answers should be kept to no more than three sentences," he wrote.So when they hear you're a blogger...
The consultant told him juries in medical malpractice cases base verdicts almost entirely on their view of a doctor's character.
"We've said it before, and we'll say it again: If the basis of this case is that Flea is an arrogant, uncaring jerk who maliciously neglected a patient, resulting in his death, the plaintiff will not win, period," he wrote. "As much of a cocky bastard that Flea may appear in the blogosphere, the readers who have a personal acquaintance with the real 3-D doctor understand how such an approach cannot succeed."And all that cocky bastard Flea writing comes into the trial as evidence. Now, you might say, but can't a blogger adopt a persona and use a pseudonym to signify the disconnect between the writer taking a pose for literary effect and the real-world person?
I have a colleague who explains his use of a pseudonym this way:
I make no secret that I'm a law professor. It's right there in my profile. This means I have students, and a professor image to live up to with my students. Maybe maintaining my image as a law professor isn't as onerous as the image-burden borne by, say, a Supreme Court justice, or the pope. But it's not nothing. In front of my students, I have to be reasonably fair, dignified and mature. This doesn't mean being a phony; it's more a question of emphasizing certain aspects of one's personality and putting others in a closet for the day.Hmmm... I'm not so sure I belong in that Bainbridge, Volokh, Conglomerate set. I think I cross the professional line all the time. I'm always getting the "you, a law professor" chiding. I write things all the time that I wouldn't say to a student. But still, I understand Oscar's idea of using the persona to indicate: Now, I'm speaking in this other mode.
If you read my blog, you know that I use somewhat crude language from time to time. I say "f***" in several posts. Just the other day, in a single post, I used the terms "big butt" and "ass." Indeed, "big butt" was in the title of the post. I have (in my opinion) a somewhat wide-ranging sense of humor that isn't above occasional dips into puerility...
I don't tell my students that I'm always "the dignified professor" or that I never use crude language. That would be pompous and false, not to mention irrelevant. But I don't use crude language around students.... Maintaining an image means drawing a line between your professional persona and your personal life.
Most law-prof bloggers seem content to put their blogs largely or mostly on the professional side of that line. While they don't always blog about law, they seem to refrain from saying stuff that would be inappropriate in a conversation with a student in their offices. Folks like Professor Bainbridge, or the Volokh Conspiracy, or Althouse, or Conglomerate maintain an informal, yet not-unprofessional tone. To varying degrees they trade on their academic affiliations, and would have relatively little ground for complaint if, for example, their law schools posted something about their blogs on the law school web sites. And you don't catch them saying "big butt." Indeed, a Google search "'big butt' professor bainbridge" yields only a few hits, none of them from his blog.
So, fine, maybe Dr. Flea was doing something like that. But that doesn't make the evidence inadmissible. It just means he'll be able to explain that in his testimony if the material comes in. It's not hearsay, because these are statements of an opposing party. If it's relevant to an issue in the case, and the judge doesn't think it's too unfair, it can come in. You should have thought of that before you laid your arrogance out on the web. I'm sure it's a great relief to a professional who has to hide a lot of his feelings to let out all his cocky bastardliness on the web, but others have their interests too -- the plaintiffs lost their 12-year-old child -- and a pseudonym is not immunity.