The Blog is Mightier Than the Sword

When he isn’t taking on powerful interests as a commercial litigator, John Hinderaker takes them down with his conservative blog Power Line

Published in 2005 Minnesota Super Lawyers — August 2005

Most people around town know John Hinderaker from his 15 minutes of fame. After all, it’s not every day that a guy from Minneapolis topples a network giant and a television icon over the course of just 12 hours, all from the comfort of his desk.

Between the time he woke, on Sept. 9, 2004, to the time he went to bed, Hinderaker and his two partners on the now-famous Power Line Web log managed to debunk a 60 Minutes report critical of President Bush’s service in the National Guard, to the delight of conservatives around the country.The rest is history: CBS was forced into an embarrassing internal investigation, 24-year head anchor Dan Rather resigned (although he claims that the timing was coincidental), four network execs were canned for rushing the story to air and Power Line became a household name as Time magazine’s firstever “Blog of the Year.”

With “Rathergate,” Hinderaker became something of a celebrity for his role in the scandal. Since then Power Line has become a top draw in the realm of partisan blogs, often attracting more than 100,000 hits a day.

Hinderaker’s hard-nosed conservative commentary is fiery, provocative, insightful, often funny and always blunt. For this, he has earned his share of critics. The Star Tribune called the site “a Republican smear machine” and columnist Nick Coleman dubbed it “the spear of a [right-wing] campaign aimed at making Minnesota into a state most of us won’t recognize.” Hinderaker recently won the award for “Best Meltdown” from City Pages for a profanity-laden e-mail message he sent to a detractor (Hinderaker says he lost his temper after a week of hateful, threatening and obscene mail and phone calls to his office, cell phone and home). Even Minneapolis Mayor R.T. Rybak and Police Chief Robert Olson chimed in, accusing the Power Line crew of exploiting the tragedy of a young girl’s murder to score political points.

With all the attention, perhaps it’s no surprise that Hinderaker is tired of talking about John Hinderaker the blogger. He’d rather talk about John Hinderaker the attorney — a role he’s played with success at Faegre & Benson for more than 30 years. With close to 100 jury trials under his belt and consistent multimillion-dollar wins, Hinderaker is one of the most successful commercial litigators in the state.

Hinderaker started out as a defense lawyer, often handling 100 small cases at a time and getting the courtroom experience that he says laid the foundation for his skill as a litigator today. Over time, his practice gradually became more oriented around plaintiffs and big-money cases. Only a handful of his cases in the past decade has taken place in Minnesota — for the most part, Hinderaker finds he has to look outside the state to catch the really big fish. This time away from his wife and four children, he says, is the downside to his high-profile practice. “Over the last decade, I’ve probably spent half my time living in hotels.”

Most recently, Hinderaker took charge of a bitter feud over the retractable roof on Miller Park stadium in Milwaukee. The baseball park district called on Hinderaker after roof builder Mitsubishi claimed that the project cost $87 million more than the $46 million contract that the parties had originally agreed upon. Hinderaker sued, citing mismanagement on the part of Mitsubishi. As the case progressed, his client’s claim became larger and larger as various construction-related defects in the roof were discovered.

Along with the complex construction and engineering issues, the case was complicated by the fact that the design, fabrication work, preparation of the original contract bid and job management all largely took place in Japan. Hinderaker realized early on that to pursue his claim successfully, he would need to broaden discovery to get access to documents and witnesses overseas. This was no small feat in a country that balks at the American litigation system. “The hurdles are pretty daunting. Most foreign companies consider the idea that your enemy can get access to your files and cross-examine your employees to be anathema, and they really don’t accept it,” says Hinderaker. “They don’t prohibit taking depositions, but they make it tough.”

That’s an understatement. Depositions can only be legally taken at an American consulate office — there are only eight in the entire country — and only if both parties agree. And first Hinderaker’s team in Milwaukee would have to figure out what to do with the 130 boxes of Japanese documents they obtained from Mitsubishi by court order. Conventional translation services were out of the question — it would have taken forever and been prohibitively expensive.

So Hinderaker hatched a plan. He sent the files to the San Francisco office of a law firm that was allied with the ballpark, where it was easier to find people fluent in Japanese, and he trained the team to identify the documents that might be of potential interest. None of the team members were certified translators, but they were able to give Hinderaker and his partners the gist of the documents. Hinderaker’s team then chose only the most crucial documents to send out for certified, court-admissible translations.

The battle was long and ugly, but opposing counsel Paul Varela says Hinderaker never relented. “There’s a certain personality that’s drawn to litigation, and everyone wants to be the biggest dog in the room,” says Varela of Watt Tieder Hoffar & Fitzgerald in Virginia. “He was able to keep his eye on the goal.”

He ultimately won a $27 million net recovery for the district from primary insurance carriers — a swing of $114 million for his client.“We seized the offense from the beginning. We immediately went on the attack. We constantly kept Mitsubishi on the defensive,” he says. “We kept the pressure on them relentlessly. They were never able to get breathing space to make headway in developing their own claims.”

Hinderaker is known for being hands-on and for not taking a top-down approach to management. He’s a self-described “working foreman” who doesn’t feel comfortable just barking orders, even if he has the laurels to get away with it. “John is clearly somebody who likes to get a big case and really jump into it and know all the details, probably to a greater extent than some people that are at the top of a pyramid of people working on a case,” says David Dekker, of Thelen Reid & Priest in Washington, D.C., an ally in the Miller Park case.

Perhaps most critical to his success as a trial lawyer, Hinderaker welcomes confrontation. “Most people don’t like conflict. They shy away from it, they avoid it, they find it painful. I guess compared to most personalities, mine is not adverse to conflict. It’s been my life for a long time and I’m relatively good at not taking things personally,” says Hinderaker. “The ability to deal with conflict all day long in the litigation business without taking it home with you all the time — that’s important to your longevity.”

Varela says that Hinderaker’s forceful personality caused rifts with some of the other lawyers involved in the Miller Park case. But Dekker notes that being adversarial goes with the territory. “John surely is an aggressive advocate and can be very adversarial and confrontational … but not in a way that’s unusual for bigcase litigation.”

Hinderaker is just fine with not being the most popular kid on the playground. He’s used to it. “John speaks his mind and says what he believes, and he isn’t guided by what is the politically correct view of the day.… For the entire time I’ve known John, he’s never said stuff because that’s what he thinks people want to hear. It’s just the opposite. He’ll say what he believes and if you agree with it, that’s fine, and if you don’t, that’s fine too,” says Gerry Nolting, who has worked with Hinderaker at Faegre for the past 25 years. “John has never been one to tread lightly.”

FROM LEFT TO RIGHT
The John Hinderaker of 2005 might have a hard time recognizing the John Hinderaker of 1969. Now a clean-cut business professional, Hinderaker’s politics as a longhaired Dartmouth College student more closely resembled those of Tom Hayden than Richard Nixon. “I’ve occupied every point in the spectrum. I’ve been everything from an anarchist to a communist to a pretty hard-nosed conservative and everything in between. In 1969, I was a radical leftist. I didn’t study economics until I got to law school, and I found that highly enlightening. So that made me a lot more conservative. I was not yet a conservative, but I was a liberal instead of a pinko.”

He recalls voting for Jimmy Carter in 1976 and John Anderson in 1980, and it wasn’t until the mid-1980s when he realized he had turned into a fullfledged conservative. “I’m an empiricist. I became a conservative when over time, on one issue after another, it became increasingly apparent to me that the conservatives were right.The evidence was in their favor, events were bearing out their views.”

It was around this time that he and fellow Power Line blogger Scott Johnson — a former partner at Faegre & Benson who is now the vice president of TCF Bank — got their start as pundits, writing columns in defense of the Reagan administration. Along with Paul Mirengoff, an attorney in Washington, D.C., and former Dartmouth classmate of Hinderaker’s, they created Power Line in 2002 as a simple and quick format for their commentary. All three are former liberals, which Hinderaker says informs their perspective. “You could say we have the zeal of the convert. You could say that by virtue of being on the other side, we feel like we understand it.… We see the danger on the other side maybe more clearly than some who aren’t as familiar with it.”

At a firm that’s historically been left-oriented (and still is home to heavy hitters like DFL Chair Brian Melendez), one wonders how well Hinderaker’s extracurricular activities have been received. He says he hasn’t noticed any difference in the way he’s treated, and says he has “good friends here of all political stripes.” Still, he insists that he tries to keep his hobby separate from his profession, in part out of courtesy to his partners.

“We have always fostered a culture of having a really big tent and allowing for a variety of viewpoints,” says Nolting. “There may be people who get a little irritated with John, but the culture we’ve had for over 100 years has been one that really encourages a wide variety of thinking.”

As a trial lawyer who is also a fierce defender of the Bush administration, what does John Hinderaker make of the Republican Party’s attacks throughout the 2004 presidential campaign on so-called lawsuit abuse? “I agree with [Bush]. I don’t agree with everything that’s ever been proposed under the heading of tort reform, but I certainly do agree that there’s a lot of litigation in this country that there shouldn’t be.… I’m often troubled by the cost of it and by the delays in the appellate process in particular,” says Hinderaker. “So I’ve got criticism of the system, but at the same time, I have a lot of respect for most lawyers.”

Regardless of one’s politics, it’s hard to spend much time with Hinderaker — either online or in person — without getting a laugh. “He’s got a lively intellect, and he makes me laugh. It’s not like he’s ‘ha-ha’ funny, like Chris Rock, it’s more that he’s got lots of personality,” says Varela (whose politics, incidentally, are “closer to Al Franken than John Hinderaker”).“You can say a lot of things about John Hinderaker, but he’s not boring.”

With his high profile, connections, personality and influence, some scattered rumors have floated around the blogosphere that Hinderaker might set his sights on politics. He says there’s not a chance. “A) I’m too old to start, b) I’m too outspoken, and c) I can’t afford the pay cut,” he says. “Beyond that, I’ve never in my life been a popular person. I don’t recall ever being elected into the student council. There’s no reason to think I’d be a good politician.”

For now, he’s content to confine his political musings to the Internet and to focus his professional energies on the law. “I actually enjoy the litigation business, I think more so than most lawyers who do this for a living. I find it endlessly fascinating. I love the fact that you learn so much. Every case is an education,” Hinderaker says. “I said a long time ago that lawyers are like prostitutes — every one of them is hoping to someday make a big hit so they can get out of the business. Deep down inside every lawyer is thinking, ‘God, maybe someday this case will walk through the door and I’ll get a $5 million fee and I can quit practicing law and go do something else.’ I don’t really feel that way.”

The Revolution Will Be Posted

The year is 2005, and a revolution is taking place.

Only a few years ago blogs were dismissed as a soapbox for people with nothing better to do than sit around in their pajamas and spout off. That was until 2004, when the readership of blogs in the U.S. shot up 58 percent, to more than 32 million readers, as more people turned to the Internet to get involved in the elections — and as bloggers proved they could shake things up in serious ways.

“People are discovering their voice,” says blogger David Weinberger, a fellow at Harvard’s Berkman Institute for Internet & Society, and a former senior Internet adviser to the Howard Dean presidential campaign. “Knowledge emerges from conversation rather than from the mouths of anchorpeople or their equivalent.”

The blogosphere started to heat up after Sept. 11 and the start of the war in Iraq, when passions were high across the political spectrum. But it wasn’t until the 2004 elections that blogging started to attract attention from the “mainstream media,” as it is often dubbed by bloggers. Thanks to a few high-profile innovations and scandals, blogs were smack-dab on the map:

— December 2002: At Strom Thurmond’s 100th birthday party, Senate Republican leader Trent Lott comments that the United States would have avoided “all these problems” if then segregationist Thurmond had been elected president in 1948.The media doesn’t devote coverage for almost a week, until a critical mass of outrage in the blogosphere forces its hand. Lott resigns.

— June 2003: The Howard Dean campaign starts an online blog chronicling his bid for president, pushing Dean into an early lead in the primary race and raising $20 million in Internet contributions alone.

—April 2004: Through a Freedom of Information Act request, an Arizona blogger gets photos of American military coffins coming back from Iraq, and posts them on his blog, the Memory Hole.

—Summer 2004: For the first time ever, the major parties credential bloggers, including Republicans Edward Morrissey of Minneapolis and John Hinderaker of Apple Valley, as journalists at the national conventions.

—Sept. 9, 2004: Suspicious of the memos used to substantiate a 60 Minutes story critical of President Bush’s service in the Texas Air National Guard,TCF Vice President Scott Johnson posts a few lines on his blog Power Line and links to another site, the Free Republic, which claims that the documents are forgeries. The feedback is instantaneous, with readers from around the country clamoring to offer their own insight and evidence that the memos are a hoax.

The Power Line team — Johnson, Hinderaker and Washington,D.C., attorney Paul Mirengoff — struggle to keep up, spending the day wading through hundreds of incoming e-mail messages. By the end of the day more than 500 sites have linked to Power Line, the mainstream media has picked up on the story and CBS announces that it is meeting to discuss whether to launch an internal investigation. The documents are later discredited, CBS anchorman Dan Rather resigns soon after and three top executives are fired for hastily rushing a shaky story to air.

“One of the reasons that a site like ours is able to break so many news stories is not because we have the ability to go out and do a lot of pounding the pavement — we don’t,” says Hinderaker. “But it’s because people know that we’ve got lots of readers and that anything that we talk about is going to instantly spread. We’ve become known as the people to come to if you want to get the word out into the public domain.”

In this sense, Hinderaker says, bloggers have a distinct advantage over the mainstream media: not only are they able to reach a broader cross-section of the population, he says, but they are more accountable for the information they publish. The blogosphere is self-correcting, bloggers say, because everyone is fact checking each other and because sources are almost always linked. On the flip side, there are virtually no rules governing the blogosphere. Bloggers are not required to disclose conflicts of interest, they don’t have to report errors if they don’t feel like it and they don’t have to report who’s funding their efforts.

“I do not consider blogs to be accountable and I do not consider them in general to be trustworthy. I think what you get are cautionary flags that go up that require you to do your own investigation,” says University of Minnesota political science professor Larry Jacobs.“This is a medium that provides very astute, intelligent analysis and it also provides flat-out lies, misrepresentation and slander. … You’re getting this really unrefined raw material, and I think buyer beware.”

Political blogs tend to attract people who share the same world view, which some say contributes to increasing partisanship in the national political debate.

So, are bloggers journalists? We’ll leave that one to the courts. One thing is clear: their opinions matter. More and more, the mainstream media is treating bloggers like experts, sometimes writing entire articles on the response in the blogosphere to the hot political topic of the day. If the Trent Lott fiasco proves anything, it’s that an explosion of activity in the blogosphere is enough to make a topic suddenly seem relevant to journalists.

But most bloggers agree that the breaking news stories are not what’s most significant about blogs. Glenn Reynolds, a University of Tennessee law professor who writes Instapundit.com, quite possibly the most-read political blog on the Internet, says that while most of the media’s attention has focused on the top-tier blogs with the most traffic, the true influence can be seen in the hundreds of thousands of sites that are under the radar.

“People look for the biggest and the best where blogs are concerned, but that’s not the real story,” Reynolds says. “[Blogger and Star Tribune columnist] James Lileks once said that ‘a newsprint is a lecture but a blog is a conversation.’ I think that’s right. The influence of a blog is not so much scoring a big hit — the ‘look at this famous name that we took down’ — though some bloggers love that. But the real impact is that people read it day by day and it slowly affects the way they perceive the world. Like a conversation, like talking to your neighbor over your back fence every day.”

Blogs are appealing because they are written in an honest, spontaneous, human way. Says Hinderaker: “Part of what people like is their independence, their quirkiness, the unique point of view espoused by whoever writes it. Whether you intend it or not, readers get to know a lot about you — how you think, what you think, what you do. It’s a very intimate medium.”

“It’s a really human face and a real human voice. [Bloggers don’t] act like kids standing on their tippy-toes, saying, ‘Look at me, I’m taller because I know it’s important for me to appear this way.’ That’s the opposite of what happens in Web logs,” says Ernest Svenson, who writes one of the most popular law blogs on the Net, “Ernie the Attorney.”“This is people just acting like people. It’s going to take a while for us to move from looking for information from TVs to looking for it from real human beings, just real human beings, saying what they think.”

So who are these people making the waves?

“There was this view at the beginning that [blogs] were to be predominantly used by the disaffected, the people who don’t have the time or the money to write checks or walk in protests. But it looks so far like what we’re seeing is the same old crowd,” says Jacobs.“The biggest influence of blogs is among people who are already intensely interested and fairly knowledgeable about politics. It’s become a tool for activating the already active.”

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