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Anatomy of a smear: pro bono version

By Mark Obbie

There's nothing like a recording or speech text to serve as a check on faulty reporting. As I and others suspected, 2nd Circuit Chief Judge Dennis Jacobs' remarks to a Federalist Society gathering in Rochester were wildly misinterpreted by the reporter covering the event, and then by critics who seized upon Jacobs' supposed views as evidence of his hate for all pro bono (and by implication for all poor people in need of free legal help). The Federalist Society posted the full text this afternoon. Reading Jacobs' words side by side with the story is enough to make one gag. Reporter Elizabeth Stull of The Daily Record in Rochester cherry-picked Jacobs' remarks to reflect a sweeping condemnation of pro bono and impact litigation that simply isn't what he said. He instead made a thoughtful argument about supposed abuses of pro bono causes. And he explicitly, repeatedly praised certain traditional forms of pro bono.Some undoubtedly will declare Stull a member of the Liberal Media Conspiracy. I don't know her, and her editor won't comment on the record. But I am willing to bet that the truth about Stull is depressingly less interesting. She simply didn't grasp the nuance and depth of the judge's brainy, contrarian comments about the nature of big-time pro bono. The judge is no ogre, as it turns out. And neither is Stull. She was in over her head, and her mistake -- naively or cynically embraced as true by commentators -- has caused a needless controversy. What a shame. But at least some good comes of it. Now more readers will be aware (I hope) of Jacobs' actual remarks, which deserve a reasoned debate rather than partisan rants.Let this be a lesson to reporters who want to get stories right but who are taking imperfect notes and find comments too hard to follow: Tape record and give it a few listens. Or get the written version from the speaker. Ask questions about what the speaker meant. Don't trust your ears, especially as you're rushing to jot down quotes on something complicated while racing to make a daily deadline that forces your story into too-small a space. Some things are more important than speed and brevity. Like accuracy.Jacobs prefaced his speech with the quip that he had "some remarks that are perhaps more than usually provocative." If only he knew. Now, if only The Daily Record will read the transcript and run an appropriate correction -- followed by apologies from the critics who took the original story to the bank.

Full post as published by Lawbeat on October 23, 2008 (boomark / email).