May 31, 2007

Cross-examination reveals the defendant was that anonymous blogger who's been writing about the trial.

Boston Globe reports:
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.

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.
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.
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.

The consultant told him juries in medical malpractice cases base verdicts almost entirely on their view of a doctor's character.
So when they hear you're a blogger...
"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.

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.
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.

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.


Unknown said...

Well, since the case was settled the day after this revelation, he won't, in fact, have an opportunity to explain his alter (?) ego Flea to the jury. I would have loved to have been a fly on the wall in that jury room if he hadn't settled.

tjl said...

"You should have thought of that before you laid your arrogance out on the web"

The arrogance of Flea's blog posts was as nothing compared to the arrogance of going pro se in a malpractice case, especially one with the worst of all possible facts, a dead child.

Imagine the glee of the plaintiff's lawyers as they administered their cure for hubris.

Zeb Quinn said...

Blogging anonymously is one thing. I can understand, even relate. But to post enough information in your supposed anonymous blog so that you can be identified to a certitude, and doing it under the circumstances in which the doctor did it, is not just dumb. It goes beyond dumb. It's out of control. It may be pathological.

Mortimer Brezny said...

I'm always getting the "you, a law professor" chiding. I write things all the time that I wouldn't say to a student.

Hey, Simon! Don't you think the word student here is ripe for interpretation?

Mortimer Brezny said...

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

Or her. Women blog, too.

Ryan said...

Dr. Flea's blog is down now, but it was archived:

It was actually a pretty interesting blog, and won a couple awards. Too bad.

Ryan said...

Link should have been:


Eric Turkewitz said...

The reason parts of his blog may have been admissable had to do with his public discussion of his communications with counsel and trial consultants, who were giving him information on how to act in front of the jury.

I've been following this for the past month, and have analysis here:
Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court

Sloanasaurus said...

Maybe in the future the only electable politicans will be the computer dumb ones. All the others will have made vulger comments on various blogs or have naked pictures posted somewhere on the web from their college days.

KCFleming said...

Damn stupid of him. Or arrogant. Or both.

The whole mess reconfirms my belief that MedMal needs massive reform. Did Doc Flea mess up? Was the child's death his fault? Will the penalty change his behavior? Did the family deserve compensation from the doc, or an insurance settlement? We'll never know now.

A friend of mine was the best ObGyn I ever knew. Young, bright, caring. In two successive years the travelling carnival at the county fair brought women to the ER who were "high risk" pregnancies (never saw a doctor, smokers, overweight, drug & alcohol abuse, etc.) during delivery.

Both moms sued her for malpractice. She "won" both cases. She quit being a baby doctor because of how much it affected her, and retrained, and now works in hospice care.

Dr. Flea did a disservice to the legal process and his patients.
But the legal process does the same.

MadisonMan said...

As Ivy League-educated pediatrician...

Only in the northeast would his educational background be included, as if it's relevant.

Unknown said...

Well, it's hard to stay mad at the man. According to the Web Archive of Flea's blog, he cites Raising Arizona as his favorite movie. The guy can't be all that bad...

Unknown said...

Oh, and by the way, I hope that it is clear that the picture on Flea's blog is of Flea, the rock musician, not Flea, the pediatrician blogger. Eric, you might want to clarify that fact on your blog post about him, seeing as you posted that picture rather prominently in it.

J. Cricket said...

It is fitting that Pogo would provide us with pure legal folklore.

Today's scary story: the travelling carnival plaintiffs strike twice!!

No way your story is even close to true. Well, you probably know a doctor. And maybe you went to a carnival.

Eric Turkewitz said...

I hope that it is clear that the picture on Flea's blog is of Flea, the rock musician, not Flea, the pediatrician blogger.

That was the picture he used on his blog before it went belly-up.


halojones-fan said...

I love it when people respond to anecdotal evidence with, basically, "nuh-uh!"

I mean...what, do I now have to provide independent citations for everything I say? I'll duct-tape a videocamera to my head, so that everything I say or do or experience will be recorded. God knows there's no other way to prove that I'm telling the truth!

As for this: I don't buy the whole "oh I have a different persona that I use on the internet" argument. You're you, and whatever comes out of you was in there somewhere. Now, I may write things to the general anonymous Audience of the internet that I would not say to an individual or to a peer group. But I don't pretend that I'm just playing a role and shouldn't be held accountable for what I write.

(...says the guy using a handle instead of his real name. But if someone cared enough to track me down, I wouldn't try to evade responsibility.)

John Stodder said...

I have a blog, but it's not anonymous. I put my name on it very deliberately, as a constant reminder that I am always writing for the record, as it were. I was on trial last year, and continued blogging during the trial. I just never blogged about the trial, or about any of the people, companies or public agencies involved, except for a few mentions that I carefully parsed to make sure I was giving the prosecution nothing it could use. I made a few comments after the verdict, but carefully modulated them for the same reasons. This didn't stop the prosecution from taking half a sentence and trying to twist it completely out of context in its sentencing recommendations, but my lawyer was able to demonstrate their bad faith unequivocally.

Subsequently, I learned that the prosecutors and the FBI case agent read my blog regularly--and they liked it! Apparently, I write about some of the same stuff they're interested in.

The fact I was blogging while awaiting trial was considered mildly newsworthy out here. I was interviewed for a story in the local legal newspaper, and a prominent local blogger has linked to me repeatedly. Now, I'm waiting for a decision on whether I'll be free on bail during my appeal, some of my friends use my blog as an indicator of whether I'm still walking around or behind bars. You can't blog in prison, although if I do end up going, I'll work to change that.

I don't think blogging while on trial is something I would recommend to just anyone who happened to be in my situation. I have a talent for detaching myself from my emotions when necessary, and I don't look at my blog posts as spontaneous eruptions of feeling, but as journalistic pieces in a different form. When I'm really angry or depressed, I just avoid the blog, rather than using it as an outlet. It's pretty clear that not everyone has that ability. It's hard not to want to settle scores, or tweak the record, and that's a dangerous path. I made up my mind at the beginning that this wasn't what the blog was for, and I've pretty much stuck to it.

KCFleming said...

Re: "No way your story is even close to true. "

How do I say this?
Go to hell.

I trained with the doctor I am speaking about. She's a friend of mine. We talked about the cases together. It was traumatic as hell.

Well, you may be "aJD" as your name implies, but you're rather quick to call BS when you don't know the facts. I hope your professional life is shown better care.

God, that pisses me off.

Joe said...

Flea was arrogant, but I see this entire fiasco as an example of just how fucked up our civil legal system has become.

Unknown said...
This comment has been removed by the author.
Unknown said...

Go easy on AJD, Pogo. Ever since he found out that "AJD" stands for a form of pig herpes he just hasn't been the same, as if he thinks his rhetoric has to somehow be diseased to match.

KCFleming said...

Ouch. That's gotta hurt.

Anonymous said...
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Ann Althouse said...

Theo: You should note that although I say a lot of things, I almost never say anything about students or faculty at my law school. The exception is when there is something reported in the mainstream press.

hdhouse said...

if anyone expects to remain
"anon" and blog they merely have to google their posting name and "blog" (or althouse for instance) and pretty much anything you ever wrote online will spring up for a diligent searcher....incluidng where you live and what you had for lunch in some cases.

in this case the good doctor seems to have the Doctor/God syndrome and felt the "law of search engines" didn't apply in his universe.