Telling Case Stories in Social Media: Do We Teach This? Should We?

From Judge Bob McGahey of Denver:

A recent article in the New York Times caught my attention enough that I forwarded it to a number of my advocacy teacher friends, especially those interested in storytelling in the courtroom. (link: http://nyti.ms/1EGD8Z4.) The article discusses how the explosion of social media and online access to court filings is changing the way some pleadings are drafted: "Now some plaintiffs' lawyers, calculating that they will be protected from defamation suits when making charges in civil complaints, distribute the first filings online as a way of controlling the narrative." It was that phrase "controlling the narrative" that really jumped out at me. That impacts on ideas of storytelling.

I was taught – and teach, to the extent I talk about it at all – that pleadings should be drafted in such a way as to assist our clients in obtaining their objectives, with the caveat that pleadings have to generally conform to rules both written and unwritten about "proper" content. Don't use exclamation points. Don't use tons of boldface caps. Less is more. Etc., etc. Notice pleading is, in theory, short, succinct, to the point. Each of us can recognize pleadings that make us uneasy, that don't conform to what we think is "proper." Now that I'm back in a domestic relations division, I see pleadings like this all the time. For example, a lawyer who always refers to his woman clients as "Mother," even when their children are adults.

But what The Times article is discussing strikes me as something very different. These pleadings are designed for much broader consumption than even the "headline grabbers" of the past. After all, who reads newspapers nowadays? They are intended to target an audience other than other lawyers and the judge, an audience that potentially encompasses other players, such as jurors. Pervasive publicity has always been a concern in high profile criminal cases: I only have to look south from Denver to watch the daily drama of jury selection in the Aurora shooting case. But the kind of cases discussed in the article go way beyond the immediately obvious.

When Fred Flintstone and I were in law school, pleadings were something taught primarily in Civil Procedure classes. With the trend toward "practice ready lawyers", how to draft pleadings is now an integral part in almost every class. I really don't know what to think about what The Times is talking about, but I must admit that it makes me uncomfortable. Maybe I've just reached the "get off my lawn" phase of my life.

But I'm curious: what do you folks do? Do you discuss this with your students? Should we teach it to our students? Why or why not? I await your thoughts.

--Bob McGahey