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The post on Abnormal Use is the quintessential shaggy dog story!

In Dedman’s account, his opponent was seemingly prepared to advance a judicial estoppel type argument. Though, I don’t think what one writes (or as editor, allows to be written on a blog) applies under this doctrine. It would seem to be fairly commonplace to advocate on position on a blog and quite another as an advocate for a client. The rub is taking contradictory positions in the same proceeding –especially after having obtained some benefit from having made such a position.

I did not necessarily get the impression that opposing counsel was going to advance an estoppel argument. (Though perhaps I have misunderstood Dedman.) Rather, I thought counsel was going argue to the court that her opponent did not really believe the position he was advancing had merit, given his out-of-court analysis on the subject. Obviously, there can be all sorts of nuances or distinctions that explain any variance between a blog post and briefing. But if a lawyer says the law is “x” in a law review article, and then shows up in court advocating that the law is “not x,” that could undermine his credibility with the court. Blog posts pose the same hazard (only more so, because they are apt to be less rigorous). This is one reason why one sees so little of value published by practitioners, I think. We cannot really afford to engage in nuanced, balanced analysis of the topics we know best in print, both because opposing counsel will hold it over our heads (and, on the defense side, repeat clients will not appreciate analysis that poses any jeopardy for them). So instead publications by practitioners on substantive topics tend to be one-sided marketing efforts.