We’ve pointed out doctor-bloggers who have provided first person accounts of being sued for malpractice, but the last doctor on the list, the pseudonymously-named “Flea,” is taking it one step further: he’s blogging about his own trial as it happens. Today’s post is “Flea on Trial – Day One: Jury Selection.” You can follow the whole series here.
Meanwhile, New York Personal Injury Lawyer Eric Turkewitz comments, from a trial lawyer’s perspective, on some of the dangers of a doctor blogging about a case in near-real time. Our favorite tidbit is this:
His decision to walk this high-wire without a net brings us to a third issue: If plaintiff’s counsel finds out about the blog, should it be used at trial? A lawyer’s gut reaction may be yes, in order to claim to the jury that what they are seeing is a well-rehearsed act.
But if the risk is that the insurance carrier uses it as an excuse to disclaim on a plaintiff’s verdict, it may be entirely counterproductive. In this sense, Flea shares a common goal with his nemesis: They both want the insurance company standing there in case of a plaintiff’s verdict.
Well, sure — it is about the money, after all.
9 Comments
I understand why a trial attorney is concerned with Flea’s commentary on his case. Flea shows how much the trial is about appearence and presentation, not facts and matters of law.
In Tennessee there was a recent decision in the courts that establishes a “Standard of Legal Practice” in the state for the issues of med-mal cases. I wonder how many are looking at this case to see if their attorneys did something different for the purpose of establishing that the “Standard” in their case was not met.
Turkewitz, Esq., he of the enemy side, does make a sober point here. Maybe the solution is to take the notes mentally, then give the account on a blog at a safer point, later on. Of course an opposing attorney, if he found out, would try his hardest to get the live-blog into evidence, or at least look at it, and I don’t know what the argument against it would be (though I’m sure there are some).
And how many religious Jewish pediatricians are on trial in Massachusetts in a wrongful death case right now anyway?
Of course, Flea might have already had his trial and may be delaying his commentary already.
David, why is Turkewitz on the “enemy side”? Are his clients your enemies? Have they hurt you in some way?
Can someone tell me why a written log of the case would b evidnce in the case itself? Isn’t that like demanding to put the court reporter’s notes in as evidence? You may not know an argument against it, but how about an argument FOR it in the first place?
Can someone tell me why a written log of the case would b evidnce in the case itself?
My post dealt with his decision to discuss his contacts with his counsel. While one ordinarily couldn’t be questioned on such a subject, he has risked seeing that door opened.
Statements could also potentially be admissible to the extent any were inconsistent with trial or deposition testimony, but I think that is a lesser concern since he has not discussed the facts of the case.
–ET
Matt, don’t be silly. The website is called “Overlawyered” and targets lawsuit excesses. ET is a plaintiff’s attorney. Hence my phrasing.
Here, his comment about the risk of live-blogging is probably right. If Flea blogged, for instance, “I testified yesterday that X, but really, it’s more like X plus 1,” and the trial were still going on, well, gold mine.
And the jury selection post is down, so someone persuaded Flea that live-blogging was not the best of ideas at the moment.
It was a wonderful “before its time” idea that alas, is too dangerous for Flea.
We may have to wait for it, but I expect we will be hearing more from this medical blogging maestro when the trial is over.