Web sites dedicated to a specific trial are ushering in a new era of client service, said Denise M. Howell, a Web log booster and intellectual property litigator who is of counsel to the Los Angeles office of Reed Smith.
“Not only is it critical to know who will try your case,” Howell said. “It’s important to consider who will ‘blog’ it.”
The Web log that sparked Howell’s enthusiasm is devoted to a civil case, the Department of Justice’s antitrust action against Oracle in San Francisco.
Running the Oracle trial Web log is Gary Reback of Palo Alto, Calif.’s Carr & Ferrell, who represents PeopleSoft Inc., the object of Oracle’s hostile takeover that DOJ is trying to block. At his client’s request, Reback is “blogging” the proceeding, sitting in the trial all day, taking notes, and filing an account on PeopleSoft’s corporate Web site.
“Perhaps I can give some balance to Oracle’s artful spin,” Reback writes at the start of the blog, titled “View from the Court.”
He did not return phone calls seeking comment.
“It’s like getting your news from Pravda,” Oracle lawyer Dan Wall said in a phone interview last week, after the bench trial ended. A decision from U.S. District Judge Vaughn Walker is expected in the next two months.
“One of the powerful things about Web logs and the quick and easy publishing they enable is the ability to write precisely what it is you think needs saying,” said Reed Smith’s Howell. “This is attractive to any litigant or lawyer who has lamented being misquoted, taken out of context, or cut by the mainstream media.”
Though he does not quite share Howell’s enthusiasm about Web logs, attorney Robert G. Morvillo, who defended Martha Stewart on obstruction of justice and conspiracy charges related to her trade of ImClone Systems Inc. stock, oversaw of one of the first trial-specific electronic journals during her trial.
“As technology improves, people will figure out wider uses of sites,” said Morvillo of New York’s Morvillo, Abramowitz, Grand, Iason & Silverberg. “But now they are limited. For one thing, they’re not cheap — it’s an affluent client who can pay to keep one updated.”
Stewart’s public relations agency came to Morvillo with the idea for www.marthatalks.com, a site with lime green stripes and matching lime lettering for trial updates that turn turquoise when clicked. He could have vetoed it, Morvillo said, but he admits he’s glad he didn’t. “It was helpful. It gave my client a vehicle to communicate with her support base. And supporters could send in e-mails, which was a comfort for her,” he said.
Since it debuted a year ago, the site claims to have received 34 million hits and 170,000 supportive e-mails. One aspect that Morvillo said his team hadn’t anticipated was the usefulness of the Web site in dealing with the media and outside lawyers. When motion papers were publically filed, they were posted on the site, and when others wanted a copy, “it took the strain off our office to be able to just refer the interested parties to the site,” he said.
Morvillo’s role was not to write journal entries — that is, to “blog” the daily progress of the trial — but rather to censor the accounts that the P.R. firm provided.
The benefits of being able to communicate directly what you saw go on in court that day are self-evident,” Morvillo said. “The danger, if you are an agent of the defendant, is that you give an account that binds them to certain facts, facts you may not want to be bound to in the future for strategic reasons. It’s the same reason you try to avoid lengthy pretrial interviews.” Also a danger is using the site inappropriately to, say, taint the jury pool. “You must be careful with the Web page not to run afoul of local rules, and there’s always the lawyers’ canons of ethics,” added Morvillo.
And there can be missteps. A draft of a letter from Stewart to her sentencing judge was inadvertently posted on July 16, the day she was sentenced, and then quickly revised by her publicists.
Predating the Stewart blog was an effort by Microsoft Corp., during its 1999 to 2000 antitrust trial in Washington. “It was before anyone referred to the word ‘blog’ so we called it the ‘daily re-cap,'” said Microsoft spokesman Jim Desler. The dispatches were written by in-house public relations staff that didn’t necessarily attend the day’s proceedings, but discussed them with the lawyers who did, he said. The accounts were then posted on Microsoft’s corporate Web site, as were court documents. When the remedies trial came along in 2001, documents were still posted but the re-cap ceased. “I think the perception was that this trial was not getting as much public attention, and everyone was too busy,” said Desler.
Even if attorneys are not making use of Web logs in their cases, they must still be aware of them. Los Angeles criminal defense lawyer Harland Braun, who was the first of a series of attorneys to represent actor and accused wife-killer Robert Blake, acknowledges the power of Web sites to put a gloss on proceedings, but has never used them. When he took over the Blake case, he said he was aware of a number of Web sites that had sprung up spontaneously.
Braun said that he could see a danger of such sites attracting witnesses that might blindside an attorney. “I had my investigators monitor them. No, we never cooperated with any of them. How were they financed? Pop-up ads? I don’t know.”
Between the expensive professionalism of Stewart’s site and the ragtag Blake sites lies the site maintained by family members, such as www.myjaysonwilliams.com. Former National Basketball Association star Jayson Williams could surely afford the P.R. route in fighting charges of negligent homicide for firing a shotgun at his chauffeur.
But the strategy of his defense team was to downplay his wealth and to portray him as a loving and religious family man, a strategy bolstered by the Web site of his wife, Tanya Young Williams, a lawyer, who regularly posts gauzy photos and diary entries. The effect resembles a greeting card, but allows for occasional outbursts — such as when she scored the prosecution for kicking black males off the jury — without affecting the sentimental tone. Williams’ first trial ended with a hung jury, and the site can be expected to continue into the retrial next January, if the judge doesn’t intervene.
BLOGS AND GAGS
Web logs for trials are new enough that it isn’t clear whether they’re covered by court-imposed gag orders. The Williams case had a gag order, but Tanya wasn’t included. In a toxic tort trial in Colorado in 2001, U.S. District Judge Frank Plaut threw out an expert witness’s testimony on the ground that the expert, David Egilman, maintained a Web site in violation of a gag order. The site contained accusations of criminal activity against the law firm representing the defendant, as well as the allegation that the medical director for the defendants was educated in Nazi Germany.
Thomas Mesereau Jr., the lawyer who has taken on the Michael Jackson child-molestation defense, is cautious about discussing the highly polished Jackson site, www.mjjsource.com, because of a gag order in the case. Earlier this year, prosecutors complained that the site, which contains music downloads and court documents, called on fans to rally on Jackson’s behalf and created a circus atmosphere.
Attorney Craig Silverman of Denver’s Silverman & Olivas is planning a third-party Web log for the Kobe Bryant sex assault trial. His dispatches from the courtroom will run on the Web site of the ABC affiliate in Denver, where he works as a legal analyst. He said he has no ax to grind-that the blogs will be “right down the middle, but will have my opinions.”
But this may not be as easy as it sounds: A ruling last week by the Colorado Supreme Court held that the news media have no right to publish mistakenly released details about the victim’s sex life from a closed-door hearing in the case.
In a 4-3 decision, the state high court acknowledged that the order amounts to prior restraint of the press, which is barred by the Constitution. But it said such a step was permissible under the state’s rape-shield law to protect the victim’s privacy. “This prior restraint is necessary to protect against an evil that is great and certain and would result from reportage,” the court ruled in a decision that media groups vowed to appeal to the U.S. Supreme Court. The trial is set to begin on Aug. 27.
Media groups have gotten involved with other high-profile Web logs as well. Last year’s David Westerfield child rape and murder trial in San Diego generated intense public interest, and the San Diego Union-Tribune responded with a presumably evenhanded site.
And the Scott Peterson murder trial has a third-party site sponsored by Southern California Lawyer, with entries that are not generally judgmental, although the writers seem to enjoy taking swipes at defense lawyer Mark Geragos.