• January 7, 2015

microphone-233717_640Regular Minnesota Litigator readers will note my recurrent interest in “reputation,” “lawyering,” and the marketing of legal services. It is still on my mind. We do not know whether 2014 was a good year or a bad year for particular Minneapolis law firms. We do not know whether a firm’s “good year” means that the firm is doing good work or bad work. How are we supposed to judge them? How are we supposed to choose our lawyers?

Take Faegre Baker Daniels, the largest law firm in Minnesota. It lost two of the biggest trials of the year in Minnesota in 2014 (here and here). And, guess what? There is absolutely no question that these losses were extremely rewarding for Faegre Baker Daniels. These trial losses generated millions of dollars of legal fees for Faegre Baker Daniels.400px-Scream_crosathorian

Is that ironic? Is that fair of me to point out? Is that any reflection on the quality of the legal services that Faegre Baker Daniels provides generally or provided in these two cases?

Answers: No, not really. Not sure. No.

This is the crux of the problem in this era of wide-open speech, an entirely overwhelming undigestible amount of available information, easily distorted or misunderstood, and individuals’ complete inability to process the data-set that they are able to get their minds around. On balance, though, I believe there is no doubt that more voices, more data, more information leads to greater accuracy, better decision-making, and more reliable reputations. Faegre has been an exceptional law firm for decades and its reputation will continue to shine bright so long as it keeps up to its very high standard of practice. On the other hand, lawyers, law firms, and other vendors of legal services are exposed now more than ever to public assessment, fair or unfair.

Here, linked, is a story about a defense expert who sued lawyer bloggers who quoted a judge calling the expert a liar. The expert’s defamation lawsuit failed. The expert appears to have been caught in a lie by testifying that he conducted an IME (independent medical examination) for about 25 minutes when a surreptitious digital video recording showed that the IME was only about 2 minutes.

Note: the evidence against the expert was digital. It was almost undoubtedly collected using an over-the-counter ubiquitous data-collecting device (for example, a smart phone). It is strong evidence. The doctor, Dr. Michael Katz, tried to crush the dissemination of this information and he has failed spectacularly.

Maybe Dr. Katz just mis-remembered? Maybe this is an injustice for Dr. Katz? On the other hand, who, more than a testifying expert, needs to appreciate that testimony under oath requires careful listening and careful answering? Dr. Katz might have a serious problem getting additional engagements as a testifying expert. And maybe that is a positive result of our new age of data Darwinism.

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