Feature

Engaging the Media

What lawyers should know when talking to reporters

It is a profession that is viciously maligned, almost on a daily basis. It alternately occupies either the number one or number two slot for having earned the distrust - and distaste - of the American public. Yet its practitioners, largely well-educated and thoughtful professionals, go to work each day believing they are doing important work. Furthermore, when they think about the big picture, they believe their work is not only noble, but that it plays a critical role in the very fiber of our society. 'Without us,' they exhort, 'American democracy as we know it would crumble.' Indeed, their work is both noble and essential, though you wouldn't always know it by the way they are judged.

We could be talking about lawyers. We're not. We're talking about that vast, monolithic entity called The Media, although to refer to the 'The Media' as one entity is the first problem in critiquing it, just as referring to lawyers as a single-minded bloc oversimplifies and stereotypes the profession.

What intrigues me is the intersection where these two entities, if nothing else, share the spotlight of public vilification. Though these two professions could be soul-sisters in the camp of unfair attack, tensions between them abound. Some of those tensions are natural, even healthy. Others are unnecessarily destructive, particularly to the justice system. Lawyers and judges, it seems to me, are in the best position to do something about it.

THE OREGONIAN AND OTHER URBAN PAPERS
How are Oregon's media doing with legal coverage? It's impossible to assess 'The Media' in whole. Let's start with the state's five or six largest urban newspapers, perhaps our best hope for getting substantive, thoughtful coverage.

Like legal practitioners, nearly everything they do and say will be scrutinized, sometimes fairly and sometimes unfairly. But for the most part, the media have high journalistic standards, employ well-qualified staff and strive to constantly improve the quality and breadth of their coverage.

Still, let's dispense first with a few harsh realities. First, even the finest papers will never satisfy a lawyer's lust for linguistic perfection. Reporters cannot take 4,800 words per story. Their need for brevity will inevitably lead to articles that oversimplify, which will inevitably drive legal scholars to distraction.

Second, it's a business. They have to sell papers. Sometimes, this forces the media to compromise even their own values. And believe it or not, it often bothers them as much as it bothers the substantive reader.

Once we accept these truths, there remains lots of room for quality coverage of important stories. But it requires taking an active role and building a relationship with your paper.

The Oregonian in particular has made a conscious decision to increase emphasis on legal issues and trends, rather than just hard news. This should be seen as a beacon of hope to the bar, and we should embrace it.

Michelle Roberts, who covers Multnomah County courts and statewide legal issues, sees much untapped opportunity at the bar. Because of the nature of her job, the big criminal cases will take priority. (Read: It's a business.)

But she has a well-developed list of issues she plans to cover. Having seen her list, I can attest that it's remarkably similar to what the bar might like to see covered, from the perspective of helping the public better understand its system. Still, Roberts says she senses there are cases worthy of coverage that she never hears about.

'I check the docket daily,' she says, 'But it's always helpful for lawyers to call and point out the interesting elements. If they pitch a story, they'd be surprised how often it would be covered.'

Her editor, Susan Gage, says picking up a complex case from the day it's on the docket is tough. 'Lawyers certainly know of their cases long before they go to trial. If they give us the lead time, and point out some of the interesting elements, we're more likely to cover it and the article will be more thorough.'

Bill Bishop of the Eugene Register-Guard has been a journalist for 26 years, 12 of them covering legal issues. His coverage of last year's Oregon's Legal Need Study was among the best in the state, largely because he made the decision to spend time on it. His story ran months after it was released, but it included first-rate reporting and depth.

'I always have to make a case up front with my editors for why we should invest the time on a story like that,' Bishop says. 'But that story was important and everyone agreed on it. Still, anything you can do to put a greater vision of a story into a reporter's mind always helps.'

In terms of what else lawyers can do, number one is getting to know some talented reporters. Oregon has many. Both Roberts and Bishop have covered courts for many years and consistently produce quality work. There are others: Jan Davies of the Salem Statesman-Journal and Tina Peterson of the La Grande Observer, among them. All are reporters who have stayed on the legal beat for a long time, and have grown with it. Finding them early in their careers and fueling their interest in the law is perhaps the best investment the bar could make.

Ashbel 'Tony' Green, who covers appellate courts for the Oregonian, is a case in point. 'When I started covering legal issues,' he says, 'I got sort of an ad hoc law schooling from a variety of attorneys who really knew their topics.'

That ad hoc schooling has given Oregon a reporter who is well-versed in legal nuance and produces some of the best analytical legal coverage in the state. Indeed, and to the credit of the Oregonian, Green has just completed an innovative fellowship at Yale Law School designed to allow journalists to attend the first year of law school.

Although his reporting was already among the best in the state, editor Gage says she's already noticed some subtle change.

'I've noticed even more that when we're trying to focus a story and boil it down to its most understandable format for readers, he's still hanging up on some of the complexities, saying, 'Well, but I can't quite say it that way.' '

There are similar talents, certainly in Salem, Medford, Bend and Pendleton. The bar should seek them out, early in their careers, and work with them as they develop as journalists.

Bishop counsels lawyers to cultivate relationships with reporters. My best sources, particularly when beginning on this beat, were the lawyers who would start by saying, 'Where are you going with this story and what do you already understand?' Then, they could sit back and assess whether I was a reporter who was willing to learn, or who just wanted to file a story and move on.'

The challenge is encouraging papers to stick with their beat reporters and encouraging the reporters to stay. Turnover is high, and the business side of the paper is less inclined to invest in the Bill Bishops and Tina Petersons of the profession, particularly at smaller papers. Whatever positive reinforcement the bar can offer when good reporting surfaces will go a long way. This means talking to the editors, who are usually active in the community, and always letting the paper know when a reporter has produced some admirable work.

SMALL & MID-SIZED PAPERS
With small and mid-sized papers, we need to assume there will be a less-seasoned staff and higher turnover. Hasso Hering, editor of the Albany Democrat-Herald, once acknowledged it is a challenge getting good court coverage. However, this could be the organized bar's best opportunity to make an impact, and a couple of current initiatives come immediately to mind.

First, the OSB maintains a list of attorneys in every locale who are willing to be a resource to reporters. Having fast and easy access to some willing bar members will be critical in getting quality coverage. The OSB is always looking for lawyers who want to participate and work with reporters on this level.

Second, the bar is focused on increasing the chance for lawyers and reporters and editors to get together and talk about legal coverage. Where do lawyers see room for improvement? Where do reporters think lawyers could be of more help? In this regard, the bar is collaborating with the Oregon Newspaper Publishers Association on a program called 'Media and the Courts,' which we hope to take statewide. The program brings together a group of lawyers and journalists in each community to get to know each other and talk about the process of covering the law. In its first venue, Salem, it made an immediate impact.

'It's made a big difference here,' says Marion County Presiding Judge Paul Lipscomb. 'Reporters increasingly call for sources and direction and help. It just gives us the opportunity the help them craft a good story.'

Lawyers should also be offering themselves as a resource not only to reporters but to editorial writers and columnists. The bar gets fairly high marks from Bob Caldwell, editorial page editor of the Oregonian. 'I think the bar is probably the best professional organization in the state for offering useful sources on topics and doing it in a timely way,' he says. 'And the bar is particularly good or better than anybody when it comes to dealing with difficult issues. In the past, they've been handled about as well as they can be.'

OSB President Ed Harnden, who has worked overtime on such hot-button issues as the Gatti decision, exemplifies the bar's proactive attitude. 'We've had several weeks where we've essentially dropped everything to be available to the press,' Harnden says. 'This is an important story for our state, as well as for the bar, and helping reporters fully grasp the complexities involved will ensure that the public understands what is at issue.'

At the same time as offering his praise, Caldwell calls some lawyers to task for their 'bunker mentality' when it comes to both news and editorial writers. 'I think a portion of your profession is imbued with this idea, that I think is a false one, that nothing good can come from talking with the press. In truth that has worked to the great disadvantage of the profession, and especially in high-profile cases, the failure to engage the press can even harm the client.'

TV & RADIO
This brings us to the broadcast media. Obviously, there is less opportunity for impact with broadcasters. The medium's format is frighteningly short, and the reporters generally don't specialize. Not only do you have to explain the law in seconds, you have a reporter who is less prepared to home in on the most salient point.

Yet, since a majority of Oregonians get their news from TV and radio, we need to find our role. Trial and criminal lawyers who talk to jurors are already skilled at losing the legalese and making their point to a public audience. The skill set for a good broadcast interview is not a big leap, but it takes some planning to ensure that reporters and editors air a story that is accurate and helps the public understand what is at issue.

Many reporters, although constrained by their format, are eager to get quality stories on the air. At KPTV-12 in Portland, the 'I-Team' airs programs on Wednesday and Thursday nights. It is consumer-focused and roots out stories of scams and other law-breakers. Perhaps most importantly, it has a slightly longer two- to three-minute format. The main reporter, Kerry Tomlinson, has done substantive work on legal consumer issues and has even broken out of the consumer topic to do other legal reporting. For two evenings recently, Tomlinson reported on the challenge of pro se litigation and Oregon's new court facilitator program, highlighting an enormous problem that touches thousands of Oregonians.

What can the organized bar do to encourage responsible broadcast coverage? We can focus on identifying broadcast talent that is willing to push the envelope with their stations and stretch for as much substance as their medium allows. We should let the stations know we'll watch. And we should think creatively about how we can help stations achieve more substance, while respecting their need to keep viewers. If 20-minute stories sell on shows like '60 Minutes,' we should be able to find a way to keep viewers interested for three minutes instead of 20 seconds.

Radio news spots have similar challenges in short format, but for what they're seeking to achieve, they do a good job of getting out the basics. Oregon Public Broadcasting, wuth its longer format, has produced some of the best reporting on the state's major legal issues.

Talk radio has some potential because its open-ended format allows for some time and depth. There are hosts who have a more bombastic style and seem more interested in grandstanding than in inviting thoughtful dialogue. It's a plague of the genre. There are exceptions, however. The bar has done a lot of work with Bill Gallagher, who now hosts a crime and justice talk program on KPAM-AM, and who tends to favor substance over vitriol. Other news radio stations have similarly talented staff. Seeking - and reinforcing - other longer-format programs that genuinely seek to inform is a priority as more and more people rely on broadcast media for information.

ACCESSIBILITY
Strategies for effective relationships with the media vary widely, from the bigger outlets like the Oregonian or the state's many smaller papers, to the radio and TV reporters covering breaking news. But one issue is a constant. Nina Totenberg, the journalistic 'star' who covers the U.S. Supreme Court and legal issues for National Public Radio, grapples with it regularly: lawyers who don't call you back, or don't understand journalistic timelines.

'If a reporter calls you, and you get back to them the next day, that's worthless; the story is over,' Totenberg says. 'It's done and then when you bitch about how she got it wrong, I have relatively little sympathy. There are lawyers who, as a matter of great pride, don't talk to the press. I personally think that's a foolish position.'

I have debated this very topic with numerous members of the Oregon bar. This seems fairly simple to me: The story is going to run, with or without your input. I've heard lawyers complain vehemently about press mistakes and a lack of understanding of the law; they are usually the same ones who don't talk to the press. Those who have adopted an open relationship with reporters, who sit down and talk at length about legal issues, recognize that the investment of that time has a positive impact - and that even when reporters get it wrong, there is opportunity to do better next time.

'We didn't get into this business to get it wrong,' says the Register-Guard's Bishop. 'We may be in a hurry, but most of us still want first to get the story right.'

Totenberg adds that because most reporters have accuracy as a high goal, it's worth your investment of time. 'If you are dealing with a reporter that is malevolent, I would agree that wouldn't help you a lot, but that's rare. If you are dealing with someone who's just ignorant, it may take you a few extra minutes, but maybe you could actually inform that person.'

GET READY
My theory is that lawyers often decline to talk to reporters not because of their stated disdain for the media, but because, understandably, they don't want to 'mess up' and be confronted with that less than brilliant quote in the morning paper. Although media training and strategy are another topic, it's like any other endeavor to which one builds up a comfort level. There are ways to avoid embarrassing gaffes, and most lawyers already have the skill set.

Helping a lawyer prepare recently for a media interview, the lawyer experienced a 'lightbulb moment.' He said: 'You know, this is not unlike preparing for oral arguments.' Bingo. A little prep goes a long way, and it can minimize, if not eliminate, the fear factor.

Many lawyers will argue that holding the hand of a reporter is not their job; that their job is to serve their client. Indeed, the client is always the number one priority. I don't, in truth, recommend having a 'tell-all' with every reporter that calls.

But I do believe it is the rare case where one cannot safely provide some guidance to a reporter, remain within the ethical boundaries and have no ill effect on the case. If nothing else, you can refer the reporter to a colleague, or to the bar's media program, to ensure they find someone who can help them understand the issues.

While it is not your role as a client advocate to serve the needs of the media, it may very well be part of your role, albeit secondary, as an officer of the court and a steward of the justice system.

CONCLUSION
While there may be justification for a portion of the public cynicism about the legal system, much of it owes to a public that is woefully unschooled in the most basic tenets of the system. This, of course, contributes to the much-lamented 'lawyer image' problem. But more importantly, it becomes a self-fulfilling prophecy. When citizens, because of a lack of understanding of the adversarial system, lose complete faith in the justice system, the system breaks down. In other words, confidence in the legal system is dependent on a degree of public trust, and lawyers, because of their training and skills, are best-suited to build that trust.

To achieve that trust, the profession will require a major paradigm shift, and that shift is already under way. The shift will be complete when, as part of their long, slow indoctrination into this profession, lawyers come to believe that engaging with the public is actually a necessary and valuable part of their role as officers of the court and stewards of the system.

Will it make lawyers the darlings of the public? Not likely. Lawyers will still be called upon to handle ugly and painful divorce cases and to represent society's less lovable citizens. But will it make a difference? Yes, it will in some cases, with some reporters, and with some citizens. Regardless, it beats burying your heads in your briefs (legal, that is) and declining to engage with the media.