“The medium is the message.”
– Marshall McLuhan, Understanding Media: The Extensions of Man
Following recent comments on Twitter about the recent ABA Tech Show in Chicago, and, in particular, the “IgniteLaw” segment, the provisional title for this post was going to be “Social Media vs. Legal Ethics”.
Venkat Balasubramani at Spam Notes, I can only shake my head in dismay over the acute level of cognitive dissonance and bandwagoning demonstrated by the ABA. This is not to say, however, that other bar associations, including the venerable Law Society of Upper Canada and the Canadian Bar Association are not thumbing a ride on the “Social Media For lawyers Express”.
Scott Greenfield, in his post Conspiracy to Commit Wire Fraud, fires the first salvo:
“This is being promoted across the internet by a group of people who do not practice law, but who earn a living by persuading people who do that it’s okay to pay for their services, buy into their philosophy, and validate their business model. This isn’t about your business model as lawyers, but their business model as snake oil salesmen.
That the ABA would tolerate this crap is a disgrace. That the ABA would promote this cabal determined to convince lawyers that ethics are no longer a part of our obligation is inexcusable. That they send this message to your computer is a conspiracy to commit wire fraud, because this is nothing but a lie. It is not acceptable to engage in unethical behavior, even if it can make you money, even if it involves cool technology, even if a bunch of former lawyers turned pitchmen say so. “
Brian Tannebaum in his post Watching Law Ignite Into Flames, unleashes the next volley:
“I consider myself a traditional lawyer. I built my practice by word of mouth referrals. I have an office. I wear a suit. I don’t market myself to death or sit in Starbucks all day telling other lawyers how to use a computer. And yes, I think the way lawyers are being evangelized into the marketing world, is pathetic.
But I don’t fear change.
What I fear, is new lawyers who listen to non-practicing lawyers go from conference, week in and week out to tell them all the wrong ways to get business, and that the way they are doing everything, is wrong. I fear many of the people who spoke here. I fear that I have witnessed a live version of everything I criticize.
That’s what I fear.
I fear that we are creating a generation of marketers, and not advocates (unless they are advocates for themselves, and marketing, and their twitter account.)
Watching some of these videos I realized that the practice of law has not merely taken a back seat to marketing and social media, it’s attached to an open trailer attached to the car, hidden under a bunch of tied-down blankets.”
Venkat Balasubramani in his post, Emphasizing Tech and Social Media at the Expense of the Fundamentals?, wryly observes:
“I realize the focus of the show is on technology in the legal profession so you can expect the focus to be on technology, but I’m still bothered by the lack of mention of the fundamentals. I think it’s a disservice to young lawyers who may be attending or following along. Given that the ABA is putting on the event I would think this would be a concern to them? It’s a lot tougher to learn the fundamentals than it is to learn the tech/social media stuff. The ABA should emphasize that in the early years, we should be spending much more time and energy learning the fundamentals.”
I previously criticized this disturbing trend in my post, “The Medium Is (Not) The Message”: Musings on the Intersect (or Disconnect) between Legal Technology and the Practice of Law, (which laconically resulted in getting blocked by Nicole Black on Twitter):
“At the risk of sounding impolitic, I simply posit that while law and technology may intersect on some level, it remains my uninformed, non-tech savvy view, that technology is neither a panacea for lack of substantive legal knowledge, nor a placebo for lack of competence or skill. Yes, we all need to keep up with technology, but form follows function, not vice versa. While computer technology is subject to Moore’s Law and Wirth’s Law, Parkinson’s Law, posited by Cyril Northcote Parkinson as the opening line to his satirical essay published in 1955 in The Economist, remains apposite:
Work expands so as to fill the time available for its completion.
Since the subject-matter is “social media” and “Web 2.0” (or Web 3.0 ad infinitum), it only seems reasonable to frame the issue of the impact of technology on law through the paradigm (or anodyne) of television. The original “idiot box” is now saturated with reality shows, celebrity rehab spin-offs and infomercials. There was a time, however, when television was educative, if not downright, epiphanal. In an early post: “To Boldly Go Where No One Has (Arbitrated) Before”: The Star Trek Mythos as an Heuristic Paradigm for Jurisdictional and Arbitration Issues”, I suggested that “television often mirrors the political, social and legal values of the time”.
So what does Star Trek have to do with Social Media and Legal Ethics, you ask?
Plenty, but an episode entitled “Court Martial” from Star Trek: The Original Series [Season 1, Episode 14, “Court Martial” [Production number: 6149-15, First aired: 2 February 1967, Remastered version aired: 10 May 2008] has a degree of verisimilitude.
Here’s a short plot summary. In the year, 2267, after sustaining severe damage in an ion storm, the Enterprise is forced to seek repairs at Starbase 11. Star Fleet Commodore Stone investigates the loss of records officer Ben Finney, killed when the ion pod in which he was taking readings was jettisoned to save the Enterprise. Stone finds that despite Kirk’s protestations, the computer records show that Kirk ejected the pod during a yellow alert, before the signal of a red alert. Further inculpatory evidence against Kirk suggests that although they were once close friends, Finney resented Kirk and blamed him for not getting promoted, arising from an incident aboard the Republic (NCC 1371), when Kirk had replaced Finney on watch and discovered an atomic matter piles circuit open that should have been closed. Kirk is charged with perjury and culpable negligence and faces a court martial.
On the advice of prosecutor and Kirk’s former lover, Starfleet JAG officer, Lieutenant Areel Shaw, Kirk retains Samuel T. Cogley (played by Elisha Cook, Jr.) , a 23rd century civilian attorney-at-law who practiced on Starbase 11 in the 2260s. Cogley is a “lawyer’s lawyer”; strong-willed, old-fashioned, preferring printed law books to computers.
When they first meet, Kirk asks: “You have to be either an obsessive crackpot who’s escaped from his keeper or Samuel T. Cogley, attorney-at-law!” Cogley replies: “You’re right on both counts. Need a lawyer?” Kirk answers: “I’m afraid so.”
Testimony from McCoy, Spock and Kirk himself is inconclusive, and Spock is forced to concede there the computer was not malfunctioning, subsequently confirmed by a megalite survey. If you haven’t seen the episode, I won’t spoil the ending for you. However, the following excerpt best captures the essence of why the “medium is not the message” and why professionalism and ethics are the twin pillars of trial advocacy:
Shaw: Mr. Cogley is well-known for his theatrics!”
Cogley (to Shaw): “Is saving an innocent man’s career a theatric?”
Commander Stone: “Counsels will direct their remarks to the bench!”
Cogley: “Oh, I’d be delighted to, sir, now that I have something HUMAN to talk about! Rights, sir – HUMAN rights! The Bible. The Code of Hammurabi. And of Justinian. The Magna Carta. The Constitution of the United States. The Fundamental Declarations of the Martian Colonies. The Statutes of Alpha III. Gentlemen, these documents all speak of RIGHTS! Rights of the accused to a trial by his peers, to be represented by counsel, the rights of cross-examination, but most importantly, the right to be confronted by the witnesses against him – a right to which my client has been denied!”
Shaw: “Your honor, that is ridiculous. We produced the witnesses in court. My learned opponent had the opportunity to see them, cross-examine them –”
Cogley: “All but ONE! The most devastating witness against my client is not a Human being. It’s a machine, an information system. The computer log of the Enterprise. I ask this court adjourn and reconvene aboard that vessel.”
Shaw: “I protest, Your honor!”
Cogley: “And I repeat, I speak of rights! A machine has none. A man must. My client has the right to face his accuser, and if you do not grant him that right, you have brought us down to the level of the machine! Indeed, you have elevated that machine above us! I ask that my motion be granted. And more than that, gentlemen. In the name of Humanity, fading in the shadow of the machine, I demand it. I DEMAND IT!!!”
So, when all of you rush to go buy your IPads and engage with each other on Twitter and Facebook while attending your next social media for lawyers conference: remember Samuel T. Cogley.