Justinian Lane - Commentary on law, politics, and tort "reform."

“Those lying bastards at Johnson & Johnson”

A fentanyl lawyer I know sent me a link to the following video:

After viewing some of the evidence from fentanyl lawsuits, it seems to me that this video hits the nail right on the head.

Have any personal injury lawyers been successful in getting nonlawyers to link to them?

More than a few people on the net like to make fun of PI lawyers who engage in cheesy tactics to get visibility in the search engines.  You know: Leaving spam comments on others’ blogs; tweeting “(your city) car accident” and then writing a useless post about a car accident, etc.  I don’t approve of lawyers who do that sort of thing, but I understand why they do it – it’s hard to get a nonlawyer to link to a personal injury lawyer web page.

Yahoo Site Explorer (among other tools) lets you check to see the incoming links to a website.  I’ve used it to check out some very popular PI attorney blogs, and I’d say 90% of their incoming links are from others in the legal community.  Am I right in my assumption that no PI attorneys have a blog or website that is well linked-to outside of the legal community?

Shoot me some links if I’m wrong.  I’d like to see what they’re doing. 

The iPod/iPhone Shows Just How Badly Microsoft Screwed Up

I hadn’t planned on buying an iPod Touch, but two things happened recently that nudged me into it.  First, Barbri (the bar prep company) offered a discount coupon and an iPhone/iPod only study app.  Second, I won an iPhone dock clock radio at a Christmas party.  So, I bit the bullet and bought an iPod Touch.  Its not a bad music player, but it’s far from perfect.  My two biggest complaints are: I can’t queue another song up while one is currently playing, and I don’t have any external buttons to control the iPod Touch by touch.  Ironic that a device called a touch requires vision to operate, no?

But despite its flaws as a music player, it’s an amazing pocket computer.  The app store (notwithstanding Apple’s dictatorial approval process) is a perfect model of how to serve consumers.  I’ve downloaded over two dozen free applications that work very well.  I can manage my banking, order a pizza from Pizza Hut (with a 20% discount just for using the app!), find the perfect Coach gift, download cases from Lexis, and even check to see if a picture on the wall is hanging level. 

Notice how I used the phrase “pocket computer” earlier.  I didn’t say pocket pc because the Pocket PC was invented by Microsoft about ten years ago, well before the invention of the iPod or the iPhone.  Way back in 1999 and 2000, Microsoft had combination telephone Pocket PC’s.  I don’t remember much about them, but it’s important to note that Microsoft had a decade to refine them, and they still aren’t as functional as the iPhone/iPod Touch.

I don’t know how many PC developers there are compared to Mac developers, but I’m guessing it’s an order of magnitude.  How is it that Microsoft didn’t leverage that base to come up with an App store?  Sure, way back in 2000 the Internet wasn’t what it is today… but I had a Windows Mobile phone in 2006 or 2007, and there wasn’t an app store for Windows Mobile phones then, and I don’t think there’s one now.  If there is, I bet it’s not as one-click-easy as the Apple app store.

I’m still not ready to trade my Blackberry for an iPhone because (a) I NEED a keyboard, (b) Blackberry email is better, and (c) Blackberry voice quality is better.  But I’ll tell you what I am likely to do: Buy a Verizon Mifi device so my iPod Touch (and laptop) always has a Wifi connection.  My two Windows Mobile phones that can also use Wifi will stay at home in my junk box because there’s nothing they can do that my iPod can’t.

Are there any scholarly Plaintiffs’ blogs?

I was just reading another article at a defense lawyer blog that got my blood boiling.  The primary reason my blood is boiling is because I don’t know of any scholarly plaintiffs’ blogs.  Are there any plaintiffs’ lawyers out there who write about substantive legal issues in a serious way?  You know, articles written for a scholarly audience and not just to chase clients. If you know of any, please – please – tell me.

Is Google ignoring lawyers who buy links because they spend so much on pay-per-click advertising?

Google is notorious in some circles for kicking sites out of the index or penalizing their rank for buying links.  For those who don’t know, the number one factor influencing where you end up in a Google search for “widget” is how many people link to your website.  Their algorithm assumes that your site gets incoming links because your site has worthwhile content.  Buying links breaks the algorithm. You’re allowed to pay web sites to link to you, but you’re supposed to have the linking site use what’s called a nofollow tag, which tells Google not to count that link.  If you search for “paid links” and “google penalty” you’ll find a ton of information about people who have been bitten by Google for breaking their rules.  To many SEO experts, Google is an all-knowing tyrant, watching and waiting to catch someone who breaks the rules. When it comes to personal injury lawyers, Google is more like a drunk uncle passed out in the easy chair.

Many lawyers – especially personal injury lawyers – are buying links like crazy.  I’m not going to name any names because I’m a nice guy.  But there’s one very well-known lawyer who has bought thousands of incoming links from a variety of web sites that have nothing to do with the law… like a penis pump review web site.  Others participate in paid blog rolls which to me seem like a gigantic violation of Google’s rules.  Here’s how that works: A handful of web providers specialize in blog/web platforms for lawyers.  When you join their service, you’re added to the blogroll that is on every other participant’s web site.  So an attorney who has never written a blog post will have thousands of incoming links the second he decides to blog… provided he can afford the monthly fee for the service.  Maybe I’m not understanding it properly, but that looks a hell of a lot to me like buying links.  One such service even cloaks some of the links in the blog roll, so Google will see them, but visitors won’t.  This is a blatant violation of Google’s rules… but Google doesn’t seem to give a shit. 

Instead, Google rewards the lawyers who do it by giving them first and second page listings for very competitive terms. (And in some cases,  pageranks of 5 or 6, which is very good.)  Now, I know that some of the lawyers don’t know their SEO guys are buying links for them, or that they’re doing other naughty stuff.  (Eric Turkewitz would probably say, “too bad.”)  One lawyer has a very highly ranked web site that also happens to have thousands of web pages within it.  At the bottom of each page is a small graphic that looks like a copyright logo.  It isn’t – it’s a link to another client of his web designer.  That client has nothing to do with the law, so there’s no reason for that client to be linked to on thousands of personal injury lawyer web pages.  But it is, and I’m betting it is because the web designer is taking advantage of the ignorance of that attorney.  (Not many attorneys know how to check to see what they’re linking to.  Fewer know how to make sure their SEO guy isn’t buying links.)

It’s very frustrating to me because Google’s rules keep everyone on an even playing field.  In six months or so, I’ll be graduating law school and will be looking for clients.  How in the hell am I (or countless low-budget solos) supposed to be able to succeed if the top spots in Google are owned by unethical (or ignorant) attorneys who have SEO “experts” spend thousands of dollars every month on buying links?  The sad fact is that few people outside of the law will add a lawyer’s website to their blog roll.  Don’t believe me?  Use Yahoo Site Explorer to check out some popular attorney blogs.  You’ll find that 95 out of 100 incoming links to their sites come from others in the law.

What’s worse is that much of the content on the link buyers’ websites is just shit.  A popular practice is to hire people to rewrite news stories.  Here’s how that works: Some newspaper publishes a story about your practice area, like a car wreck, or a defective drug, etc.  You hire a guy to rewrite that story just enough so the newspaper can’t sue for copyright infringement.  (Newspapers can’t own the facts that make up the news.)  That sort of thing is of little value to consumers.  Nor are the endless “YOUR CITY HERE Car Accident Lawyer” tweets put out by clueless PI lawyers who think Twitter = unlimited clients.  Good personal injury lawyer content is few and far between.

And don’t even get me started about the asbestos lawyers.  One of the major sites is doing exactly what the Craigslist sex spammers do.  They have a database of city names across the country.  Then they have a database of appropriate phrases.  Then, they play Mad Libs and make web pages.  Here’s how that one works:

Assume their database has 50,000 city names in it.  The database produces 50,000 web pages, each named after the city.  (e.g. Las-Vegas-Nevada-Asbestos-Lawyer.html; Las-Vegas-New-Mexico-Asbestos-Lawyer.html.)  Then each page is dynamically constructed from the database.  Let’s say there are five sentences on the page.  The first sentence introduces the firm, the second sentence says they handle asbestos, the third sentence has contact information, etc.  The database will have five sentence tables, with each table containing say two or three dozen variations of each sentence.  Some clever programming then pulls a random sentence from each of the sentence tables, and voila!  (Not, “walla”) with a couple hours of work they now have 50,000 “unique” web pages, each targeted for someone who searches for “my city asbestos lawyer” on Google.  They do the same thing with asbestos manufacturer names and professions exposed to asbestos.  So you' get a ton of pages targeted towards “Johns Manville Asbestos Lawyer” or “Pipefitter Mesothelioma Lawyer.” 

Yes, that technique is clever.  But it’s spammy as hell.  And I wonder why Google hasn’t done anything about it.  The cynical side of me says that they’re not punishing those lawyers because (a) those lawyers also buy a lot of Google pay-per-click advertising, and (b) asbestos pay-per-click advertising is incredibly expensive.  Seriously, a pay per click ad for “mesothelioma lawyer” can go for $100 bucks!  (Yes, every time you click on one of those ads, a lawyer out there has to pay Google a Benjamin.)  Maybe those lawyers are paying Google so much money in PPC ads that Google just doesn’t care if they’re breaking the rules.  Or maybe there aren’t enough “dirty” lawyers in comparison with every other profession trying to game Google that Google figures it should target its resources elsewhere.  If that’s the case, perhaps Google should take some law students as summer interns and train them how to look for the bad eggs.  God knows that law students today would gladly do that kind of work for a summer if it gave them even a small chance of getting hired at the Big G.  (Or anywhere, I suppose.) 

One thing I find very interesting: The penis-pump lawyer ranks in the top five for a specific keyword search on Google, but closer to #50 on Bing.  Has Bing come up with an algorithm that better handles paid links?  I have noticed that some of the spammier PI sites don’t do as well in Bing as they do in Google.  It will be interesting to track that long term.

Doctor is awarded $500,000 in punitive damages in wrongful termination lawsuit

Considering how vociferously that doctors argue they shouldn’t be sued, I always note when they file a lawsuit.  This doctor will learn firsthand how much of an injustice that damage caps are, as his $500,000 award will get reduced by $200,000.

A radiation oncologist who formerly worked for the University of Pittsburgh Cancer Institute won a potential $3 million verdict in federal court yesterday on charges that her employer retaliated against her for raising concerns about discrimination.

….

In addition to back and front pay, the verdict includes $200,000 in compensatory damages, as well as $300,000 in punitive damages. The jury found that punitive damages should be $500,000, but under law, the cap is $300,000, said Dr. Gerszten's attorney, Colleen Ramage Johnston.

Source: Doctor wins suit against cancer institute

Healthcare Fraud Costs Taxpayers Three Times as Much As Medical Malpractice

The figure most commonly cited as the cost of all medical malpractice is about one half of  one percent of all healthcare expenditures.  Now, some people claim that figure is too low.  So let’s double it and assume that medical malpractice costs add up to 1 full percent of total healthcare spending. 

Unquestionably, some portion of that 1 percent represent legitimate expenditures that no amount of tort “reform” would make go away.  For example, if a doctor operates on the wrong person or wrong body part, that doctor should have to pay SOMETHING to the malpractice victim.

Rather than work on cutting the fat from that one percent, why not tackle healthcare fraud?  The FBI estimates that healthcare fraud represents as little as three and as much as ten percent of total healthcare expenditures:

All health care programs are subject to fraud; however, Medicare and Medicaid programs are the most visible. Estimates of fraudulent billings to health care programs, both public and private, are estimated between 3 and 10 percent of total health care expenditures. The fraud schemes are not specific to any area but are found throughout the entire country. The schemes target large health care programs, public and private, as well as beneficiaries.
Source: Federal Bureau of Investigation - FINANCIAL CRIMES REPORT TO THE PUBLIC FISCAL YEAR 2007

Every dollar spent on healthcare fraud is an unnecessary expense.  There’s no reason not to aggressively target it in a healthcare reform package.  A nice benefit of doing so is that it may also cut down on money spent on medical malpractice.  Here’s more from the FBI:

One of the most significant trends observed in recent health care fraud cases includes the willingness of medical professionals to risk patient harm in their schemes. FBI investigations in several offices are focusing on subjects who conduct unnecessary surgeries, prescribe dangerous drugs without medical necessity, and engage in abusive or sub-standard care practices.

I defy you to tell me why we should focus on reducing medical malpractice costs as long as medical malpractice costs are less than healthcare fraud cases. 

A call to arms for trial lawyers who can do more than sit on their asses and bitch.

A little more than six years ago, I began blogging about the civil justice system.  When I started blogging, I was a community college student working as a paralegal for a small personal injury law firm.  I had no degree, little experience with the civil justice system, and practically no credibility whatsoever among trial lawyers.  Over the course of a couple of years, I managed to gain a little bit of credibility; I was even published in TRIAL Magazine, the official magazine of the largest association for trial lawyers.  I also got invited to join Tortdeform.com, a leading blog in the fight to protect the civil justice system.  I’ve spent thousands of hours and thousands of dollars to educate the public about the importance of a robust tort system.  I’ve lectured at school, printed and distributed newsletters, and been the target of numerous personal attacks from the millionaires behind the tort “reform” movement.  (Note that I don’t say “victim.”  I’m a proud defender of the court system, not a victim.)

As I write this post, I have one week left of classes in my second-to-last semester as a law student.  In just a few short months, I’m going to become that which corporate sycophants fear the most: a trial lawyer, complete with subpoena power and the ability to hold even the largest corporation accountable for injuries its products cause.  To me, the best part of becoming a trial lawyer will be having the salary to hire a little bit of help in my blogging efforts.  A better graphic design, some more pay-per-click ads for “tort reform” and the ability to buy those bullshit press releases that everyone uses to artificially inflate their incoming link count.  I’m very excited to have new resources to fight this battle with.  But I’m also saddened that I’m forced to spend my time and my dime fighting this battle while so many trial lawyers sit with their thumbs up their asses, content to let me and a few other bloggers act as their foot soldiers.

Trial lawyers, as a collective group, have billions of dollars at their disposal, and the private phone numbers of every (Democratic) Senator on speed dial.  They have money, they have power, and they have the absolute worst public image of any group this side of child molesters.  For God’s sake, Republican members of the U.S. House of Representatives in 2009 shout “Trial Lawyer!” in the same way they would have shouted “Communist!” in 1959.  It’s an epithet, a dirty phrase.  To many Americans (and most Republicans), being a trial lawyer is something to be ashamed of.  Well, I’m God-damned proud to be a future trial lawyer.  To me, it’s a noble calling.  What I am ashamed of is that so many of my brethren are cheap, lazy bastards who won’t lift a finger to expose tort reform for the bullshit corporate scam that it is.

How much money do mass tort referral mills spend every year on their endless commercials?  You know the ones I’m talking about: “Have you or a loved one been injured by _____?  If so, call us and we’ll sign you up and refer your case out to a lawyer who actually practices law.  Then, we’ll take our 1/3rd referral fee and use it to run even more obnoxious commercials!”  (OK, they don’t say that, but it’s what they do.)  I have no respect for the referral mill model.  That would change (a little, anyway) if they used their vast funds in the same strategic way that the reform movement does.

Look at what the tort reform movement has done.  They’ve bought bullshit think tanks staffed by corporate fluffers that turn out propaganda that would turn Goebbels green with envy.  Every year, they turn out slick, glossy, and effective books about the evils that trial lawyers wreak on the economy.  We, on the other hand, have a couple of impotent lobbying groups that turn out obviously-biased coloring books which do nothing to sway public opinion to our side.  How much money – how God damned much money – does the Chamber of Commerce spend every year putting together propaganda that is full of lies and misstatements to foist onto the general public?  And how much do trial lawyers spend?  Not only less than the Chamber, but I’d bet less than the top ten percent of the trial bar blows at strip clubs every year.  If the best trial lawyers in the country were half as interested in stopping tort reform as they were at staring at tits, well, it’d be a whole new ball game.

How hard would it be to hire a couple of Ph.D’s to write some reports that:

• Explain how the civil justice system REALLY works
• Equate defensive medicine with insurance fraud
• Expose the scorched Earth tactics of the defense bar as the true cause of the cost of litigation
• Publish some of the damning evidence that justified the huge punitive damage awards the public thinks aren’t justified
• Show how tort reform shifts economic costs onto taxpayers

Seriously, what would it take, a half a million a year to start a think tank to publish reports on a quarterly basis?  Name it something ambiguous like “The Economic Growth Consortium,” or “Americans for Personal Responsibility,” or copy Knight Rider and name it “The Foundation for Law and Government.”  Just come up with a name that doesn’t scream trial lawyer.  Put a couple of economists on the payroll, hire them a secretary or two, and then take a graphics arts student as an intern to format their reports.  Refuse to reveal the names of the donors, just like the big boys at the Chamber of Commerce.  Then, start releasing scholarly reports that counter the lies that the Chamber and the ATRA spin.  Maybe even go on the attack and author a report like, “Common-sense reforms necessary for fairness to return to the California civil justice system,” and then use that report to argue for the abolition of MICRA.  Or “Judicial Activists Threaten 50 Years of Stability” and use that to attack Iqbal. 

Scholarly reports; ha!  I can’t remember the last scholarly report I’ve read the pushed a trial lawyer point of view.  I think trial lawyers have ceded scholarship to the defense bar.  How else to explain why they get bounced so often in Daubert hearings, why so many of them delegate “law work” to the least qualified lawyers in the office, and why there are so few writing contests for law students in comparison with the defense bar.  Come to think of it, some of the most competent plaintiffs’ attorneys I know used to be defense attorneys.  In fact, the highest compliment I’ve yet been paid was by a former supervisor (himself a Biglaw refugee) when he told me that I write like a defense lawyer.  By that, he meant that I bother to proofread, check my cites, and rely on law instead of emotion to carry the day.

I know I’m not alone in this frustration.  I know there are other trial lawyers and future trial lawyers who want to organize and start fighting the “reform” movement in an effective, and professional way.  If you’re one of them, email me at justinian at justinian dot us.  If you’re willing to contribute time, money, or other resources, I want to hear from you.  Our first project will be a well-written and well-designed “Civil Justice 101” book to explain how the tort system works to the general public.  It will explain that SCOTUS has already capped punitive damages, how Daubert and Frye keep bad science out of the courtroom, and how our regulatory agencies are both too understaffed and too underfunded to adequately protect the public.  We’ll put it together and distribute it to the media and to politicians.  Let’s not let ourselves be defined by the Chamber of Commerce, and let’s quit waiting for the old dogs to step in and fight this fight for us.  Let’s get this book done by Feburary 1st, and let’s use it to help make sure the tort system doesn’t get torpedoed in the battle for healthcare.

If you’re a trial lawyer, consider this your call to arms.  You can either sit there on your ass and bitch impotently about tort reform, or you can work with me to put a stop to it.  Your choice.

Walter Olson Knows The Difference Between Punitive And Compensatory Damages, Right?

I ask because over at Point of Law, he links to a post criticizing the $300 million dollar verdict against Philip Morris. The post badly distorts the law:

Think for a minute about this theory of justice. Imagine applying it to, say, car accidents. By this logic, if a billionaire in a Rolls Royce crashed into Mr. Smith's car and caused $3,000 worth of damage, and if a middle-class driver in a Buick crashed into Mr. Jones's car and caused $3,000 worth of damage, the key variable in deciding how much money Mr. Smith or Mr. Jones should be compensated isn't how much damage was done to their vehicles, but how much money the driver who crashed into them has in the bank.

Source: About That $300 Million Tobacco Verdict... :: The Future of Capitalism

The author of that blog post doesn’t seem to understand the importance of the fact that the jury verdict was broken down into $56 million dollars in compensatory damages, and $244 million in punitive damages.  I know that Walter knows why that’s important, so I’m surprised he’d link to an article at Point of Law that so badly misstates a fundamental point of law. To clarify using the example above:

If a billionaire in a Rolls Royce (why not a Veyron?) crashed into Mr. Smith’s car and caused $3,000 worth of damage, and a middle-class driver in a Buick (the new Lacrosse looks nice!) crashed into Mr. Jones' car and caused $3,000 worth of damage, they would both be liable for $3,000.  That’s because the $3,000 is an award of compensatory damages. Those are damages intended to compensate the plaintiff for his or her loss.  Now, the $244 million dollars in the tobacco verdict were awarded as punitive damages.  Those damages are intended to punish.  Let’s tweak the hypo: Imagine the billionaire and the middle class guy were both drunk when they crashed into the respective vehicles.  The billionaire is worth (duh) billions, and let’s say the middle class guy has $25k in savings.  The jury will learn the wealth of these two drivers in the punitive damages portion of the trial, because wealth is relevant to punishment.  A $5,000 punitive damages award against the middle class guy would wipe out 20% of his net worth.  A $5,000 punitive damages award against the billionaire could be about 10% of price of the meal he ate for lunch before he went for a drive.  (Think I’m exaggerating?  Check out this $52,000 lunch bill.)  If the billionaire was drunk because he drank a $5,000 magnum of Cristal, wouldn’t a punitive damages verdict of anything less than the cost of the magnum seem a little inadequate?

Now, I don’t fault The Future of Capitalism for misunderstanding the difference between punitive and compensatory damages.  Unless you’re in the legal profession, you’d have no reason to know, so I suspect this was an honest mistake on their part.  Why Walter (a man who makes his living criticizing the legal profession) would link to a post he knows to be wrong is another matter entirely.

Would your social media expert survive a Daubert challenge?

There’s been a lot of discussion lately about the qualifications of self-proclaimed social media experts who market to lawyers.  People like Brian Tannebaum and myself are convinced that many (if not most) of these self-proclaimed experts are snake oil salesmen (or as I more colorfully put it, “bullshit peddlers”) hoping to take advantage of lawyers.  But surely not every one of these people is a charlatan.  I therefore began to wish that there was a way for lawyers to determine whether or not an “expert” is actually qualified to actually opine about a specific subject.  And then it hit me…. lawyers…. experts… opine… Daubert! 

In 1993, the U.S. Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and articulated a new standard for determining the admissibility of expert testimony.  Now, any lawyer wanting to hire an expert witness for his or her case is likely to make sure that expert can survive a Daubert challenge.  (Except of course in those jurisdictions that use Frye.  Since Daubert is considered to be the harsher standard, I’ll use it here today.  If any social media expert tells me that he or she doesn’t qualify under Daubert but does under Frye, I promise I’ll run him through Frye.)

Daubert offered a list of nonexhaustive and nonexclusive factors to determine whether expert testimony is sufficiently reliable to go before a jury.  The four major Daubert factors are: (1) Testing and testability; (2) Peer review and publication; (3) Error Rate; and (4) General acceptance in the scientific community.

Testing and testability

The Daubert court quoted philosopher Karl Popper, who stated that “the criterion of the scientific status of a theory is its falsifiability, or refutability, or testability.” Falsifiability simply means that something is capable of being proven false.  Testability is a more specific kind of falsifiability that means that a specific theory can be falsified through testing. 

The areas of question for a social media expert here are twofold.  First, are his or her theories falsifiable, and second, has he or she tested them?  I suspect that most self-proclaimed experts will offer theories that are not falsifiable because they will be predicated upon vague and ambiguous concepts.  Consider an expert who tells you that you need to write trustworthy and authoritative material to gain incoming links to your site.  Trustworthy and authoritative to whom?  These terms lack objective definitions, so such advice cannot be falsified.  But if we do agree on the proper definitions, can we falsify such a statement?  Yes, through testing.  And here’s a test for you: Write an article about the law that is so compelling that the Harvard Law Review dedicates an entire issue to your article alone.  Post it in its entirety on your web site.  Then, create a web site dedicated to advancing the most hokey, unscientific theory you can imagine about the cause of some childhood illness.  Make sure the theory also relies heavily on conspiracies between the government and multibillion-dollar corporations.  Hire Jenny McCarthy to promote the web site, and see which site gets more incoming links.

The next area of questioning is whether the purported expert has actually tested his or her theories.  Does he or she maintain a series of discrete social media profiles (blogs, web sites, twitter accounts, etc.) to test different theories?  If not, how can the expert test to determine what is and is not effective?  Using his or her own profile isn’t effective because his or her own profile is (a) not similar enough to a practicing attorney’s to offer useful comparisons, and (b) is probably riddled with the results of old, discarded theories.  Testing based upon his or her own profile would be the equivalent of a pharmaceutical seeking approval for a drug for children by running tests on elderly people who already have a dozen other drugs in their system.

If an expert is offering you vague and ambiguous theories that he or she has not tested, he or she would fail Daubert.  If you wouldn’t hire such an expert for your clients, why would you hire him or her for your law firm?

Peer review and publication

Justice Blackmun explained in Daubert both why peer-review should be considered, and why it shouldn’t be dispositive:

Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, and in some instances well-grounded but innovative theories will not have been published. Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of “good science,” in part because it increases the likelihood that substantive flaws in methodology will be detected. The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.

When interviewing a self-described social media expert, ask him for a list of the peer-reviewed publications he’s been in.  You may very well be told that he hasn’t been in any peer-reviewed journals, but has instead done one-better by writing a book.  Getting a book published is impressive, but does not qualify one to be an expert.  Recall of course that Suzanne Somers has written books about womens’ health when in fact she’s a quack. 

The social media expert you’re interviewing may suggest that social networking is “too new” to have dedicated journals.  Well, what is social media?  It’s communicating through computers.  And the Journal of Computer-Mediated Communication has been online since 1995.  In 2007, that journal published Social Network Sites: Definition, History, and Scholarship, an article with a good history of social media.  It also provides a good starting point for further research in its lengthy bibliography.  The handful of references below come from the bibliography:

Backstrom, L., Huttenlocher, D., Kleinberg, J., & Lan, X. (2006). Group formation in large social networks: Membership, growth, and evolution. Proceedings of 12th International Conference on Knowledge Discovery in Data Mining (pp. 44-54). New York: ACM Press.

Donath, J., & boyd, d. (2004). Public displays of connection. BT Technology Journal, 22 (4), 71-82.

Golder, S. A., Wilkinson, D., & Huberman, B. A. (2007, June). Rhythms of social interaction: Messaging within a massive online network. In C. Steinfield, B. Pentland, M. Ackerman, & N. Contractor (Eds.), Proceedings of Third International Conference on Communities and Technologies (pp. 41-66). London: Springer.

Hodge, M. J. (2006). The Fourth Amendment and privacy issues on the "new" Internet: Facebook.com and MySpace.com. Southern Illinois University Law Journal, 31, 95-122.

Lampe, C., Ellison, N., & Steinfeld, C. (2007). A familiar Face(book): Profile elements as signals in an online social network. Proceedings of Conference on Human Factors in Computing Systems (pp. 435-444). New York: ACM Press.

The references above should tell you that (a) there are peer-reviewed publications that deal with the science of social networking, and (b) if a self-proclaimed expert tells you that there aren’t, he’d get his ass handed to him in a Daubert hearing.

Error rate

One of the shortcomings of Daubert is that it declares that there is an acceptable rate of error for a scientific theory, but doesn’t declare what that error rate is.  The best we’re given is a citation in Daubert to United States v. Williams, 583 F.2d 1194 (2d Cir. 1978), cert. denied, 439 U.S. 1117 (1979).  In Williams, the Second Circuit held that a false positive rate of 6.3% was admissible.  I suspect that most social media experts have no idea about whether their theories have an error rate below 6.3%, because they likely have no idea what their error rate is.  If you ask, you might be told that it’s not possible to compute an error rate for something like social media.  That’s incorrect.  It’s simple, really: Ask them how many times they’ve given their clients advice.  Then ask them how many times that advice turned out to be wrong.  If they can’t do the math to figure out the error rate, it’s yet another sign that the social media expert would not survive Daubert scrutiny. 

General Acceptance

The final Daubert prong is actually the main prong of Frye, and that is whether or not the expert’s methodology and opinion have achieved any level of general acceptance in the appropriate scientific community.  Let me save you some time and trouble here.  If any expert disagrees with these principles, he not only would fail Daubert, but fails at the Internet:

• Be honest about yourself and your experience.  (Don’t bill yourself as an expert in an area of law if you’ve only handled one case in that area, for example.)
• At a minimum, have a website, a blog, a LinkedIN profile, and a Twitter account.  Consider Facebook.
• Try to blog regularly – at least once a week.
• If you build a reputation as a great lawyer, it will be easier to build a reputation online.  (Consider Gerry Spence’s blog.  If he weren’t Gerry Spence, it would get no traffic.)
• Every now and then, write a post from the heart.
• Link to people you know and trust, and don’t be afraid to ask them to link to you.
• Participate in online discussions about topics you’re knowledgeable about.
• Don’t expect success overnight.

Conclusion

If people are going to not only sell themselves as experts, but try and sell themselves as experts to lawyers, isn’t it fair to expect them to undergo the same scrutiny you’d subject an expert to in a lawsuit?  I know that many of you are probably a little intimidated about social media and technology in general.  So I’ll tell you what: If you’ve got a question or two about social media, shoot me an email.  I am not an expert!  But I’ve been blogging since 2003 and I probably know enough to prevent you from wasting money on someone who hopes to exploit your ignorance.