Bench Bar Forum explores relationship of media and judiciary (AC06)

Issue May 2006 By Tricia Oliver and Andrea R. Barter, Esq.

During this year's Annual Conference, attendees had a remarkable opportunity to hear icons of the legal profession and media luminaries question each other's role in the public's perception of the legal system.

"The Media Today"

Bill Kovach, founding director of the Committee of Concerned Journalists and former chief of The New York Times' Washington bureau, concentrated on the diminished exclusivity of the press as an information source during his keynote speech.

Regardless of the emergence of cyberspace and the economic challenges faced by the industry, Kovach stressed the endurance of print journalism. He shared the sentiments of economist David Warsh, who said, "Newspapers are likely to remain on the top of the chain that creates provisional truth and sets the agenda. Because paper and ink are tangible and endure, newspapers are archived, in libraries, on microfilm and in servers; they cannot be changed with a few keystrokes."

Through his work with the Committee of Concerned Journalists, Kovach challenged journalists to join a national conversation to rediscover the values that set their work apart from others. Through this work and research, Kovach found a "crisis of confidence" among journalists Ñ the fear that journalism was disappearing into a world of unlimited interactive communication and that people had no way of distinguishing news sources and self-serving proprietary communication. Kovach questioned the motivation and ability of citizens to decipher truth among the volumes of available information in a 24/7 news era.

The sources available to dominate and direct public thought are plentiful. "When slogans and anecdotes are sufficient, the entire system is challenged," said Kovach.

"Public Understanding of the Role of Judges"

Judge Gordon L. Doerfer of the Massachusetts Appeals Court served as the moderator for the opening panel, comprising: David L. Yas, Esq., publisher of Massachusetts Lawyers Weekly; Judge Janet L. Sanders of Massachusetts Superior Court; William B. Ketter, editor-in-chief of The Eagle-Tribune; and Edward P. Ryan Jr., Esq., of O'Connor and Ryan PC and MBA president from 2000-01.

On the topics of bail and sentencing, Sanders explained that because of the wide range of discretion for decisions, it is "very easy for decisions to be perceived as arbitrary." For that reason, Sanders explained that she is "a big proponent of explaining the decisions I make," to educate the public with her reasons. "Public opinion is skeptical," she said.

"No doubt about it, the judge will be attacked" by the press, added Ryan, who is also chair of the MBA's Judicial Independence Committee.

Yas, Ketter and Kovach all brought the media viewpoint to the discussion, offering insight to how a reporter approaches an article and the components that his or her editor wants the articles to include.

Sanders suggested proactive materials or information on the court process in the event that judges are not able or willing to speak to the press. Ketter said that there was some value in that, and where certain judges issue a statement, the reporters are inclined to use that information when up against deadlines and other parameters. However, Ketter explained that ultimately, reporters and editors would "rather hear from the judge" when possible.

"Public Understanding of the Role of Lawyers"

With the second panel, the morning's discussion turned to the public's understanding of the role of lawyers and how stereotypes like "frivolous lawsuits" and "runaway jury" have become lodged in the public's perception.

Joanne Doroshow, Esq., president and executive director of the Center for Justice & Democracy, New York, attributed this in large part to a coordinated public relations campaign by the American Tort Reform Association and big businesses. She said the effort is an attempt to pollute juries and the public's perception of the legal system in the hopes of ousting judges the business community disapproves of. "The money devoted to the PR campaign to breed fear, alarm and contempt is succeeding largely by capitalizing on the public's poor perception of attorneys Ñ Ôtrial lawyers represent entitlement seeking victims.'"

She explained that there is a disparity between "the real world and what gets portrayed to the public about verdicts. The public is getting the impression jurors are awarding unfair verdicts. They don't understand that median verdicts are actually very low. The public's perception is that the median verdict is $1.7 million when the actual median verdict is $40,000Ð$50,000," explained Doroshow.

"The public's mind is turned against those who use the courts and their lawyers, and legislators are capitalizing on it," she said. And due to the tendency to amplify large jury awards, "the media is an unwitting agent in all this."

Leo V. Boyle, Esq., Meehan, Boyle, Black & Fitzgerald, Boston, agreed. "The denigration of lawyers and judges is a multibillion dollar industry in the U.S." He explained that by marginalizing lawyers and the legal profession, it is easier for large corporations to lobby successfully for things like damage caps and the rollback of environmental regulations. "It's no coincidence that we are being trashed. It is a very carefully orchestrated effort. But I don't know if the media is aware what's fueling the efforts," said Boyle.

When pressed on the issue of negative stereotypes being reinforced by the media, television reporter Amalia Barreda, WHDH-TV, Boston, admitted that broadcast reporters, producers and station promoters are constantly battling over how to present a story, dealing with the conflicting interests of the truth, time limits and the "sexiness" of the story. She recommended attorneys approach news directors and reporters to teach them basic legal principles that will not get lost in the search for a sound bite.

Boston Globe columnist Eileen McNamara attributed the shift to promoting high profile cases without checking for balance or proportionality to the fact that the media outlets are increasingly no longer local, family-owned operations. As corporate entities, "there is not the same sense of responsibility and commitment to the community."

She also placed some of the responsibility squarely on the legal profession, advising attorneys to counter those who poison the public about the legal system. "If you as judges and lawyers let people hold the floor who distort the justice system, shame on you! You can push back every time a case is in your court or your firm that is being distorted. Don't let the haters distort that which people all over the world hunger for, our kind of justice system. Push back!"

"Improving Public Understanding of the Legal System"

During the final panel of the forum, discussion centered on measures to improve the public's understanding of the legal system, several commentators suggested that lawyers and judges seize opportunities to instruct the public.

Boston Herald Editorial Page Editor Rachelle Cohen, recognizing that judges cannot reply or comment when off the bench, recommended explaining from the bench the basis for a controversial decision. The rationale has a much better chance of being incorporated into the story, she said, because "no one will read a sidebar on the purposes of the bail system."

Edward Lazarus, Lazarus Strategic Services, Chevy Chase, MD, suggested the profession needs agreement about what message it wants to deliver to promote the legal system, and once that is determined, keep repeating it. As an example, he suggested changing the jury summons from one that intimidates the public by its "you've got to come" message to one that makes people feel good about participating in the process. Similarly, judges should always articulate the bases for their decisions from the bench, reminding people what the basic legal principles are. "Why assume that by saying something once, we will remember it forever? You must be repetitive, and as a profession, you are not," said Lazarus.

Noted criminal defense attorney J.W. Carney Jr., Carney & Bassil, Boston, admitted that he's "become discouraged and cynical because in some cases, it's just impossible to get across what we are doing to the media when they have other interests. We can't hope to educate when their goal is to entertain."

Although he has chosen not to play the role of entertainer, Carney has figured out how to work within this system. He advised attorneys to remember they are representing their clients' interests, which may require dealing with the media in some fashion to make the clients look good. But "maintain the dignity of the proceedings," he said. Among Carney's rules are never say "no comment" and never use boilerplate quotes, such as "my client is presumed innocent." However, he often repeats the one sound bite he'd like to appear on the evening news, even if that means he has to repeat it in response to every question. When dealing with print media, he goes on and off the record, offering just two sentences that support his client when on the record.

Carney strongly believes lawyers have a responsibility to educate the public when given the opportunity. He recommended each attorney take advantage of that opportunity when presented. Finally, he called upon judges, lawyers and bar associations to work together to reach out to the media to educate them on legal principles and the public comment restrictions imposed on judges and lawyers.