Over the wire or under the wig – ex parte Part 3 (revised)

Improper contact intended to influence judicial decisions is certainly not a new concept. Earwigging, for example, is as old as the practice of wig-wearing judges.

The idea of making Internet blogs an innocent and unknowing partner in crime, so to speak, is as new as the reference to blog comments in the Motion for Change of Venue in US v Scruggs and Judge Mills’ recent remarks that led me to write the first of these three posts on the subject.

Blogs, as we know them, are less than a decade old. The term weblog didn’t exist until 1998 and first applied to a page of links that are now known as a blogroll. US v Scruggs, however, made that “roll” a role as blogs delivered breaking news, informed opinion, and public reaction in one powerful punch.

Mississippi’s own Y’all Politics and two others popular with Mississippi readers were the subject of Blogoshpere becomes authority and issue in Scruggs case in a February issue of Legal News Line, an on-line publication of the US Chamber of Commerce.

The blog world may yet have an impact on the outcome of the case. Scruggs’ defense team said the coverage has potentially influenced the jury pool and wants the case moved to a federal court outside of Mississippi.

The Scruggs’ case definitely had an impact on the blog world. Each of the three mentioned in the story experience a significant increase in readers. Traffic on the local blog Y’all Politics more than tripled, according to Alan Lange. David Rossmiller estimated growth at more than double that on his blog covering insurance law. At some point after the story was published, the new blog folo hit the 1,000,000 views mark.

Lange attributed the growth in part to the story moving too fast for traditional media to cover anything but old news. By design, he said, we have a platform that is custom made for a story that moves this fast.

Marc Harrold, senior counsel and visiting professor at the National Center for Justice and the Rule of Law at the University of Mississippi School of Law, countered the value of speedy coverage with a column published in the Clarion Ledger.

…the instantaneous nature of trial reporting is not always a net positive. The recent case involving Richard “Dickie” Scruggs reveals aspects of the public appetite for trial coverage that can be counter-productive to the understanding of the American legal system

Harold was particularly concerned about attorneys in the role of a legal “expert” speculating on the strategy of the prosecution or the defense and predicting related outcome.

Attorneys should always be hesitant to engage in this type of speculation. Again, as in other facets of news coverage, it can, when undertaken irresponsibly, act to misinform rather than educate as the line between speculation and fact can become blurred.

Harold was not the only one with concerns. Sop noted the growing one-sided opinion was similar to what he had seen happen on the finance boards – politely called in his comments the group-think that creates a rush to buy or sell. I saw the same, just from a different perspective (see linked posts included in Part 2)

While Harold’s perspective was legal and Sop’s grounded in finance, mine was shaped by post-graduate education and training in the science of human behavior – a background that has made the blogs a virtual lab with US v Scruggs under the microscope.

In that regard, there is actually a small but growing body of related research about social interaction and the development of blogging communities. Findings from this research provide a basis for understanding the environment that provided the opportunity for earwigging comment on internet blogs.

What makes weblogs different is not the publication of content per se, but the personalities behind them.

Other research shows that blogs, like the communities where we live and work, have a functioning social system.

Every informal social system has its own order, constituted by the attribution of friendship, trust, and admiration between members. These various forms of social association give rise to higher-level organization, wherein individuals take on informal roles, such as opinion leadership, gatekeeper or maven. Within the weblog community,these positions are sought after by many authors, as they convey a sense of authority that increases readership and ties with other webloggers.

A third piece of research produced a finding of particular significance to the Scruggs case.

A major point to take away from this study concerns the idea of pre-existing social networks. Organizations that can draw existing social networks into them will build stronger community than those that do not.

There certainly was no shortage of pre-existing networks when it came to Scruggs. An Alan Lange quote from the story published by Legal News Line explains that in part.

There’s an old saying that Mississippi is a club, not a state…so small that just about everyone in the state has had some personal interaction with at least one of the players in this tragedy, so it’s compelling on an individual level.

All of these factors working together created an environment for comments that could earwig a judge or influence a jury considering any matter related to Scruggs. Ironically, the best description of how is found in this quote attributed to, of all things, a science fiction writer (Phillip Dick).

The basic tool for the manipulation of reality is the manipulation of words. If you can control the meaning of words, you can control the people who must use the words.

I’m not a fortune cookie, either – who could pass up borrowing that line – but I’m confident the three blogs identified in Legal News Line were not established with either ex parte or Dickie Scruggs in mind.

However, the social system operating in the blog environment provides the opportunity for opinion leaders to control the meaning of words.

It’s no secret that words related to all things Scruggs have an unfavorable meaning on these blogs – what’s not known is how much, if any, of that unfavorable opinion is the result of intentional opinion shapping and not naturally occurring in the blog community.

Comment in a post on the blog wikiscruggs reports a related personal observation.

There is a love of sorts among the author and the, a connection. A kindred spirit. The climate of opinion is an expression of the love of that connection. There is a solidarity…

…commenters make it a point to share the view of the author…There is a sort of hero worship of the author. It is as if the commenter must tell how much he likes what David, Peter, Lotus, or other person, a newspaper reporter, is saying…

(Any chance you want to give it a try, claimsguy?)

Intentional opinion-shaping is a distinct possibility because many of the new readers attracted to these blogs were from what the research identified as a pre-existing group. An off-the-cuff list would definitely include the insurance industry as a whole, as well as those of the individual companies targeted by Scruggs personally and/or the venture group SKG and lawyers on the insurance side. Others would be and informally or formally organized groups with a political, professional or personal interest – a good number in these groups, or so it appears, either came with a chip on their shoulder or brought an old ax to grind. (The majority, by the way, are some of the nicest people you never met but got to know.)

It’s easy for comments intended to influence judicial opinion to go unnoticed in an environment unfavorable to Scruggs – and the way that unfavorable environment is created is the control the opinion leader has over the words of others. On Rossmiller’s blog he is the undisputed opinion leader. On Y’all and folo the leadership varies according to the issue and at times the role is held by a commenter and not a moderator.

It’s also easy for comments to sound like earwigging when they’re actually the wishful – and typically vengeful – thinking of the commenter.

Issues of free speech are never easy. I even briefly considered adding a text box on the sidebar of slabbed that said, “Read at you own risk” in case a judge drops by.

I gave a lot more thought to what I didn’t include include in this post – examples. However, the pleas determined the outcome of US v Scruggs – and it’s best to leave that parte behind and shift focus.

There are other Scruggs-related cases with a yet-to-be-determined outcome and a history of comments including some that if not an ear-wig can only be a toupee.

With appreciation to all who blog in the interest of justice for all – and a hat tip to Y’all readers who pointed out the need for clarification now incorporated in this revised version of my post. nowdy

btw, Mark Twain has the benediction.

There are 869 different forms of lying, but only one of them has been squarely forbidden. Thou shalt not bear false witness against thy neighbor.

3 thoughts on “Over the wire or under the wig – ex parte Part 3 (revised)”

  1. Great post Nowdy! Some people are taking offense to what you write, too blind to see your point. Judge Mills knows earwigging has been updated for the internet, I bet Judge Senter has it figured as well.

    The Dickie Scruggs fueled bums rush against the Rigsby sisters and others who lost their houses that still await justice is over.

    While fools were parsing words in depositions Todd Graves was drafting a motion for sanctions and Butler Snow DQ. The hearing on this promsies to be a good one. I may just have to go.


  2. Thank you Sop.

    I saw the comments and will soon go over, register, reply – and hopefully clarify.

    I do plan to pull the post into edit in a little while and correct a few things that I didn’t catch this morning.

  3. Your welcome Nowdy. The point isn’t that these blogs lack utility but the ethical questions they raise for lawyers can not be ignored. Good stuff.


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