Herrmann's off on a solo lark again.
He looked at the ABA Journal's list of the "Top 100" legal blogs of 2009 to see how many blogs affiliated with big firms -- the AmLaw 200 -- were on the list.
How many do you suppose there were?
The first is SCOTUS Blog -- but Tom Goldstein launched that when he was a solo practitioner and presented the blog as an established institution to Akin Gump. That doesn't count.
How can that be?
The absence of big firm blogs from the list is not for want of choices. Fully 41% of the AmLaw 200 are now blogging, to the tune of 227 blogs. But the ABA isn't impressed. Why not?
We (or, at least, Herrmann) thinks there's one reason: lack of voice.
There are three main ways to make a legal blog succeed:
1. Be a first source of news.
The Wall Street Journal Law Blog can do that; Ashby Jones is paid to monitor the news. Lawyers at big firms can't compete.
2. Be extremely smart.
With all respect to -- well, ourselves -- we can't compete on this score either. The guys at Volokh Conspiracy, Concurring Opinions, Prawfs Blawg, and the like are not just smart, but -- because they're academics -- are also paid to sit around thinking great thoughts. Lawyers at big firms are paid to pursue clients' interests; it's hard to compete on your nights and weekends with the thoughts of the full-time thinkers.
3. Have an engaging voice.
Be funny! Be provocative! Do something that will draw readers in.
That's the key for many successful blogs, such as Simple Justice. It's not a first source of news. It's not breathtakingly intelligent (although it's not bad on that score -- don't take offense, Scott). But it has a voice. It's funny, and it can be thought-provoking.
We suspect that our limited success at blogging is due in large part to our voice. We're rarely a first source of news. We're not that smart. But there are apparently a fair number of lawyers who appreciate sophomoric humor -- so we're golden!
But why aren't other big firm blogs having the same success? Why doesn't the ABA Journal appreciate them? Why can't big firm blogs succeed by virtue of voice?
We propose three hypotheses:
1. Most lawyers at big firms are not funny.
That may be true of many lawyers at big firms (although it hasn't stopped us). But it's surely not true of all. So some lawyers at big firms could write blogs in an engaging voice.
2. Lawyers at big firms are trained not to be funny in writing.
Now we're on to something. Opinion letters are not funny. They may do a fine job of analyzing issues and protecting the firm from allegations of malpractice, but they're not funny.
And briefs are generally not funny. (At least not intentionally so.) Briefs present the legal issues in a persuasive and intelligent way, and they give proper dignity to the occasion of a legal dispute. They're written in formal prose, with no room for contractions, the first person, or colloquialisms.
Briefs also avoid humor, and for good reason: Humor runs a risk. If you say something cute in a brief and the judge appreciates it, you might earn yourself a smile. And maybe some good will. But you're unlikely to win the motion on the basis of personality.
On the other hand, if you say something cute and the judge finds it to be offensive, you may have done your client a world of harm. So most lawyers appropriately use humor only very sparingly in briefs.
Perhaps years of brief-writing beats the humor out of lawyers.
3. Writing in a distinctive voice is risky.
We think this is the real explanation for why most big firm blogs don't draw large readerships (or accolades from the ABA).
Just as it's risky to be provocative in a brief -- because the benefits are so small, but the costs so potentially large -- it's risky to be provocative in a blog.
If we write something funny here, you might smile. But you'd never send an e-mail to our colleagues praising us for being a laugh riot.
On the other hand, if you read our attempted humor and are offended, you might not be so constrained. You might write directly to us (and some of you have) or you might write to others in our firm to complain about us (and some of you have done that, too).
Solo practitioners don't have to worry about that risk: If Scott Greenfield embarrasses himself at Simple Justice, no one can complain to his colleagues. Not so for those of us in the AmLaw 200.
Why should lawyers at big firms run that risk?
The benefits of blogging are awfully intangible (Kevin O'Keefe's protestations notwithstanding), while the risk that a complaint will resonate, and cause you trouble, is real. Even if you can convince yourself to spend nights and weekends reading and writing about the law (and thus to fuel a blog), there's no reason to run the risk that you'll be criticized (and pay a price) for all your efforts. So you strip all humor and provocation out of your posts.
You lose your voice.
The posts are good. They're informative. They're lawyerly.
But they're boring; no one's drawn to them.
So that's our best guess: Crafting a distinctive on-line voice entails risk; most lawyers at big firms (perhaps intelligently) choose to avoid that risk; and so most big firm blogs just dangle out there, twisting slowly in the wind.