Even though he’s retired – from blogging that is, not the practice of law – our blogger emeritus, Mark Herrmann, still finds ways to increase our audience here at Drug and Device law Blog. His beyond-the-grave piece on blogging, “Memoirs of a Blogger,” has just appeared in the ABA’s Litigation magazine. Credit has to be shared, however, with the ABA’s glacial publishing process, since Mark originally wrote the piece while he was still actively blogging.
“Memoirs of a Blogger” doesn’t seem to be available on the ABA’s website yet, but the Wall Street Journal’s Law Blog has posted a quite clean copy, here. Since the Journal’s presumably worked out any and all copyright implications, we feel safe linking to it. After all, this blog is where Herrmann learned everything he knew about blogging, and from that article, we'd say he's learned quite a bit.
Herrmann’s article, or more properly, the online links it generated, here, here, here, and probably elsewhere upped our readership by several hundred pairs of eyeballs for several days this week. We doubt that the article itself had much to do with that increased traffic since, of Litigation’s approximate 75,000 readers, only some read Herrmann’s article; that subset didn’t all read it at any particular time; and most of those who did read it in Litigation weren’t near a computer, and certainly weren’t motivated to bother with us when they eventually did go online. There isn’t as much of an intersection between print and on-line media as you might think. It’s the online links that drive blog traffic.
Herrmann’s chief takeaway – delivered in his inimitable (although we try) curmudgeonly fashion – is that he was “a fool” to blog. That was because of six “blind spots” he suffered from when he and Bexis started this thing. Those were: (1) Blogging was easy to do at large law firm. (2) He wasn’t the compulsive type, and wouldn’t be affected by feedback from you folks out there. (3) He knew the audience the blog would attract. (4) He knew who the blog’s competitors would be. (5) His legal thoughts were enough to “feed the beast,” that is provide new content for the blog, for a long time. (6) It’s “technically hard” to blog.
Geez, after reading Herrmann’s article we’re wondering if maybe there was something he kept to himself about his career move in-house. Maybe he did it so that he could stop all the foolishness (and reduce the drain on his time) without having to admit as much to Bexis. Something to think about, anyway.
Different strokes for different folks. Bexis took a look at Herrmann’s article and reports that, despite everything, he doesn’t think that this blog is or ever was foolish. But then, Herrmann sounds like he thought blogging would be more of a direct business development tool – and less of a pain in the neck – than it turned out to be.
Bexis didn’t go into blogging with those illusions. Others, surely, but not those. That’s probably because, before Bexis started, he’d already written a treatise. Don’t get us wrong, Herrmann’s written books too. Indeed, his Curmudgeon’s Guide to Practicing Law has surely sold far more copies than Bexis’ Drug and Medical Device Product Liability Deskbook. After all, Herrmann's book is on Amazon and Bexis’ isn’t.
But Herrmann’s book wasn’t a treatise. Treatises have to be updated – on a regular basis – like twice a year. For two years before Herrmann came to Bexis with this blogging business, Bexis was already in the habit of actually reading cases (not just summaries) to stay abreast of things in this sandbox of ours. Because of the treatise, Bexis already had lists and lists of cases (called “footnotes” in the print publishing biz) for scads of propositions, and he had already set up the automatic Westlaw and Lexis computer searches that generate new cases on an ongoing basis.
That meant content generation never was that much of an issue for Bexis. The blog and the book turned out to be largely synergistic, and together they created (and feed) this beast. Since he had the content, what Bexis most wanted out of this exercise was a way to distribute it more effectively. Bexis suspects he’s always been somewhat more of an idealist about the purpose of the blog than Herrmann. Our friends on the other side of the “v.” will undoubtedly respond that he’s brainwashed himself, but whatever the reason, Bexis has always philosophically believed in what he’s been saying on the blog.
The blog was founded in 2006. That was a time of great ferment in drug/device product liability litigation. The FDA staked out its position on preemption at the beginning of the year. Courts were beginning to take notice. The Supreme Court granted cert. in three cases. Bexis’ firm, Dechert, was right on the cutting edge of all this, and that meant so was Bexis. Two of the biggest problems, as Bexis saw it, were: (1) keeping the defense side current on the latest arguments and cases, and (2) using restraint in this emergent area to avoid making unnecessary bad law. The blog was an unparalleled way to address the first problem, and provided a soapbox to at least make a dent in the second. All and all, it worked pretty well. We didn’t screw up preemption very much in the lower courts. Before the Supreme Court had its say, we won almost all of the device preemption cases, and a distinct majority of the drug ones. To screw things up in the drug area took the Supreme Court, and ultimately that’s the one court that couldn't be avoided on that issue.
With those motivations, Bexis didn’t start out with any illusions that the blog was a great practice development tool. He’s always thought of it as more of a service to drug/device clients in particular and to these industries (and the lawyers representing them) in general. If some of that we’ve posted here helps other companies and other defense lawyers to win their cases, that’s great. We’ll happily take the precedents they win to help us and our clients in our cases.
One more thing. Once they get used to them, big firms will support blogs. When Herrmann retired at the end of 2009, Dechert was happy to assume responsibility for this blog regardless of whether or not this ever amounts to some great new “business development” tool. What the blog has are some new people with intellectual curiosity, who enjoy writing, and who don’t mind the rigor of having to stay current in the law and think critically about difficult issues.
So right now, as before, we do this as a service to our clients and our friends on the defense bar, because we’re actually interested in these issues, and because we're just full enough of ourselves to think that somebody out there might be interested in what we have to say. As for new business - maybe it will; maybe it won’t. Our almost 600 email subscribers include quite a few clients or folks we’d like to have as clients. Through the blog, we get to talk to them almost every day. And we’re not stupid. We know that what attracted them here was the legal analysis, the tone, and the absence of overt marketing. So we intend to keep it that way.
We love Herrmann. We always will. But with all due respect, we don’t think he was a fool to help create this blog. Nor do we think we’re fools to be continuing it.