Remarks delivered at the
1966 BNA-LEI Civil Litigation Conference,
Washington D.C., March 28-31, 1996
If television could happen to me, it can happen to you. I've done a little television for a long time, including news interviews on the bizarre experience of representing the California State Senate in one of the once-every-decade reapportionment cases in the California Supreme Court; in connection with the Monopoly game trademark case for Parker Brothers; in connection with the nationwide asbestos litigation; and, more recently, as a co-host of Face to Face on KQED television in San Francisco.
Some 25 years ago, I was on a program on KCBS radio in San Francisco called "Know the Law." Then the State Bar of California got worried that Los Angeles lawyers appearing on a television show called "Divorce Court" were guilty of prohibited advertising. All California lawyers were ordered off the air in the name of ethical purity. Things, as we all know, have changed.
Between then and about 1995, local television news producers were suspicious of practicing lawyers. After all, private lawyers take money. They were thought of as impure and lacking in the objectivity producers demand for the 6 o'clock news. Local producers preferred to seek unbiased comment on legal matters from law professors. The trouble was that many of these pure-of-heart academics wouldn't know a working courtroom if it bit them on the nose.
Then came People of the State of California v. O.J. Simpson. News directors discovered that many law professors weren't able to explain fast-moving daily trial developments in plain English. Practicing lawyers, especially prosecutors and criminal defense specialists, were signed up to explain Simpson. Lo and behold! These folks, on local channels all over the country (as well as the nationally known lawyers on the network news) did a wonderful job of explaining the Trial of the Century.
And now that the media have found out that real lawyers are the honest and intelligent people we know them to be, television's insatiable appetite for the controversy the producers think lurks in court cases holds out for us increasing opportunities or exposures to risk - - depending on how you see it - - inherent in reaching huge numbers of viewers on local nightly news. It may come to you as an invitation to comment on a case of your own which seems newsworthy or to comment on someone else's case. And television may come through your office door, invited or not, with a demand for your comments on camera, sometimes spiced by hints that another lawyer in town has made videotape comments which will cut you to pieces it you don't respond.
Some of you may be saying that lawyers should refuse to cooperate with television...That cases should be tried in court and not in the media...That it is unprofessional or at least undignified to appear on the screen before the general public...
But events have probably gone too far for that...The television set is now as common as the telephone, washer and dryer...The internet will soon begin to imitate TV...And an overwhelming majority of people turn to television as their primary source of news. The days when the courts did their business shrouded in print are over.
Over the last 30 years I've applied a simple three-part test for deciding whether my own cases should receive media coverage:
Is the litigation inherentlypublic in nature (e.g. the reapportionment litigation or a suit against a public entity for a declaration of unconstitutionality), in which the public has a legitimate interest?
Is the litigation trulyprivate, between private parties over private matters in which the public has no legitimate interest?
If the litigation began as a private matter, has it becomepublic, either because of media interest or because other parties have sought media coverage?
Many of you who haven't appeared on local television are saying to yourselves that "I'll never be on TV". But you are likely to be, someday soon. And when you are, you will be astonished at the numbers of people in your community who will say they saw you.
I'm going to spend the last part of this trying to give you a few tips based on my own experience. I can hope that recalling these remarks may be of some help when the TV crew is on the way to your office or confronts you outside the courthouse.
Before we get to the nuts and bolts of television, let's deal with some substantive restraints on lawyers and the media.
You'll want to be aware of potential issues related to client consent, ethical restraints, gag orders in specific cases and the likelihood that the litigation privilege will not be available as a defense to actions for defamation based on out-of-court statements to the press and media.
If you're being approached by the media about your own case, you'll want to be sensitive to the need for client consent. The case is the client's property. The fact that it's a matter of public record in the files of the court doesn't necessarily mean that your client will want it transported into every living room in town. When and how often you may need client consent to talk to the media is a matter for your professional judgment. It should be discussed with the client at the outset if the case is expected to have a high profile. If the case becomes high profile later, talk to your client about media relations before going public. You will want to consider the client's life after the case is over, the fact that silence gives reporters a license to interpret and whatever the opposing litigant has said about the case.
Since 1992, the ABA Model Rules of Professional Conduct have provided ethical restraints on out-of-court comment by lawyers about pending cases. Following the Simpson case, California adopted a similar rule.
Both rules are affected with technical and policy problems. The draftsmanship is of the type which penetrates the brain only with the greatest difficulty. The first amendment issue is obvious and remains to be resolved. Both rules have as their key provision that a lawyer must refrain from making statements which the lawyer "knows or reasonably should know ...will have a substantial likelihood of materially prejudicing an adjudicative proceeding." Go figure. And both rules apply to lawyers only, so that litigants and paid spokespersons remain free to say whatever they want. You may wonder about a rule which muzzles lawyers while Kato Kaelin is free to spread his comments all over Hard Copy. I do. Most experts agree that despite their foggy draftsmanship the rules will apply to punish lawyers' statements to the media which communicate inadmissible evidence to the public, especially before or during jury selection. The ABA rule has a laundry list of additional statements which are presumptively prejudicial. Most of them have their principal application to criminal cases. The California rule doesn't attempt any guidance on what is or isn't prejudicial. Both rules, however, contain different elaborations of statements which can be made. The California rule has a foggy provision permitting counsel to make a statement necessary to counter adverse publicity not generated by the lawyer's client. Bear in mind that the rules will be applied by disciplinary authorities with the clear vision of hindsight.
Gag orders entered in a specific case differ from the ethical rules in two ways: First, while the ethics rules may get you in trouble months or years later with disciplinary authorities, violation of a gag order will get you in deep difficulty with the trial judge now. Second, you probably won't have to contest a gag order that's overbroad or the child of judicial pique because your local newspaper or media are likely to do that for you. One good reason for you to oppose overbroad gag orders - - even if you couldn't care less personally - - is that media litigation over the orders can unhorse litigation on the merits during the time it takes for the press and media to make their point.
You'll also want to bear in mind, if you're given to defaming people, that the litigation privilege probably won't afford a defense to libel or slander actions based on out-of-court statements to the media about a case.
The consciousness-dominating immediacy of TV raises legitimate questions about television in the courtroom. Rule 980 of the California Rules of Court, which places permission to televise in the discretion of the trial judge, is under attack following Simpson. The Judicial Conference has abandoned a television pilot program for the federal courts. Court TV is beyond the scope of these remarks, but the controversy spawned by Simpson promises a profoundly interesting clash between the judicial, legislative and media establishments.
Now let's turn to television itself.
Many say that the superficiality of sound-bite TV coverage of legal matters is a product of television producers with single-digit Iqs, or a belief of producers that viewers' Iqs are in the single-digit range, or that television covers all human activity like the tabloids. That may be true in some cases, but it's not the whole story.
Much of the criticism heaped on television news is the result of a basic fact about the medium: by its very electronic nature, it distorts. We see television every day - -but from the viewer's end - - and we overlook the fact that television is a complex illusion. The viewer, in her livingroom, bedroom or kitchen, sees a two-dimensional picture of a head about twice normal size, or a waist-up or stand-up shot which reduces a person to lilliputian size. Either way, the audio - - without which the whole thing is meaningless if you can't read lips - - comes from a small, often cheap, speaker at a distance from the mouth. There are lighting distortions which can give the person on the video a black eye or a back-from-the dead look. There are color distortions, for which the only answer is makeup.
The distortion inherent in television's electronics and the way it's done has consequences: The two-dimensional picture requires a fast video program pace with rapidly changing pictures to hold viewer interest. TV is visual. It does not "savor" ideas. Look carefully at the Newshour and other PBS programs, and you'll see that this is just as true for public television as it is for commercial TV. Lo, the soundbite! And if you've had experience with videotaped depositions - - and these days who hasn't - - you'll be aware of the need for good audio technique. I'll be more specific about that in a moment.
The fact that you're stuck with the soundbite means that the time for your statement to the camera will be severely limited. Remember that TV does not savor complex ideas or elegant development of a position. If you talk too long, you will be edited and your meaning may be distorted.
Prepare your message in advance. Find the core meaning and come to it quickly. Your experience in finding a headline or theme for an opening to the jury will help here. As with a jury, keep the language simple and as human as possible:
"The case is about whether the company can break it's promises to my client" is better than "The action is one for a serious breach of contract.
"The lawsuit will turn on product defects and adequacy of the defendant's warning of those defects" is not as good as "My client had the best technical advice from the world's leading experts. We're being sued today for something no one knew about until years after the product was manufactured."
Prepare for the reaction question: the interviewer will say "So-and-so says your case is....What's your reaction?"
Ask the interviewer in advance whether she plans to use a B-Roll - - that's taped video which runs over your voice - - and, if so, what it will be. I'll mention the B-Roll again in a moment.
Let's turn from substance to performance techniques:
Give a little thought to the background in the picture. Bookcases are good. Unshaded windows are bad, and a lamp, particularly when half of it is cut off, can be very bad. A couple of weeks ago on Nightline, ABC's medical reporter did a piece from his office on FDA drug approval. If you saw it, you saw the inevitable half-lamp so often seen in office and hotel room interviews. If you're on the courthouse steps or some other outdoor location, ask the camera operator about the background. He can help you with it, but all too often no one thinks of it until it's too late.
Then there's some stuff which may sound like your mother talking:
Take a deep breath or two before beginning, especially if you're nervous and you have to wait for tape to roll and other technical delays. Sit up straight - - some of us try to put down nervousness by leaning forward to "confide" in the camera and this may distort your face. Try not to sway from side to side. You may move out of the frame and viewers will wonder whether you've lost your head, literally.
It's best to look straight into the camera, not at the interviewer. Avoid glancing to one side or the other to see someone or something. Darting eyes on the small screen will make you look cornered and terrified. You may have seen the "Rategate" commercial being run by AT&T. It's a spoof on an anchorwoman who casts her eyes downward and then to one side and another, giving a good imitation of a cornered rabbit. Avoid hand gestures. In a tight headshot your hands can leap into the frame like birds drunk on berries.
I've referred to the fact that without good audio the video is meaningless. Speak normally, but with a bit more animation and a slightly elevated word rate. Television producers talk a lot about "energy" but no one knows what it means. Bear in mind that your voice will come out of the set from a little speaker at a distance from your mouth, something like leaning through a window in the viewer's livingroom while your voice comes through the air vent in the floor. Try to add a little "punch" to your speaking style to send your voice across the viewer's room. Looking closely at the way network anchors speak will make this clearer.
You can wear anything you want, and whatever you may have heard about blue shirts and tops being best for television was true for black and white and isn't true anymore. For men, I'd put on my jacket and avoid a sleeves-rolled-up-tie-unbuttoned look because that has a way of making you look like a grunge. You should avoid busy stripes which may bleed on the screen. Women should avoid jewelry which gives the camera operators fits by flashing with television lighting. Courtney Thorne Smith, who plays Allison on Melrose Place, recently revealed the double-sided Scotch Tape trick. That's the stuff which is sticky on both sides. Actors have to use wardrobe inventory off-the-rack and off-the-rack garments don't fit perfectly. Double-stick tape will close up the gaps. This is helpful for men whose shirts bunch and gap between the first and second buttons.
Makeup is rarely offered for news shots in the field. If it's offered, take it, because the purpose of makeup is to correct color distortion inherent in TV camera and lighting technology. Professional makeup people can tell women if what she's already wearing needs a touch-up. Men get no macho points for refusing makeup. Just remember Senator Dole's response to the President's State of the Union address, which suffered from virtually all the mistakes possible - - lighting, audio and makeup.
Finally, let me give you a bit of television jargon so that if you're exposed to it you'll at least know what TV people are talking about. And television people might even think you do, too.
- The B-Roll I mentioned a moment ago is videotape played over an audio statement. You talk and the viewer sees a picture of something else.
- The little thing you see stuck in an anchor's ear is called an IFB, for interrupted feedback, a term invented and understood only by engineers. It's used by off-screen people like producers to shout directions at on-air people.
- Key means a graphic, usually at the bottom of the screen, which identifies a person or a thing.
- "Tape is rolling" or "in the black" means that videotape has attained recording speed and shooting will begin with a floor director's hand signal.
- OC is an abbreviation on the teleprompter which identifies the person on camera during the text which follows.
- The backup question is often used during a one-camera news interview where the camera is on the person interviewed. The interviewer repeats a question she asked and you answered, this time with her face on camera, so that the backup question can be inserted in editing to show the interviewer's face. I had a funny version of this happen to me. The attractive young interviewer came into my office and, as we started, she covered her face with her hands and told me she'd just come from the annual station lunch for advertisers. She'd had too many Margaritas. We solved the problem by having her ask me the questions in the usual way, with the camera on me alone. Later in the day when the Margaritas had dissipated, she taped the questions and spliced them with my answers to create an entirely sober piece.
Let me leave you with my favorite memo sent by a local television news director to the staff: "Effectively immediately, Roman Numerals will no longer be used on the teleprompter. We hope this will prevent further references on the 6 o'clock news to `World War Eleven.'"