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April 5, 2007

JURIST Conference: Law & media in the age of the Internet

How has the introduction of new media — the Internet, online publications, blogging — affected the way the law is decided, disseminated and reported?

That was the main theme of a panel discussion, “Law and Media in the Age of the Internet,” that was part of the day-long conference celebrating 10 years of JURIST, Pitt’s law informational web site.

Moderated by Pitt law professor and JURIST publisher/editor-in-chief Bernard Hibbitts, the panel included Edward A. Adams, editor and publisher of the ABA Journal, the flagship publication of the American Bar Association; Tony Mauro, Supreme Court correspondent for American Lawyer Media, Legal Times and and a legal correspondent for the First Amendment Center, and Tim Stanley, CEO of Justia, a legal media and technology company providing Internet-based legal information and resources.

The role of the courts and media coverage

Hibbitts kicked off the discussion by asking the panel how new media has changed the public role of the courts and media coverage of courts.

“The new media poses a lot of problems for the courts, and there are three I can think of that are chief among them,” said Adams. “First of all, the Internet really requires courts to become publishers, which they haven’t traditionally done. Most courts themselves are publishing their own opinions.”

In the not-too-distant past reporters were forced to “elbow their way past other reporters” for hard copies of briefs and decisions, a time-consuming process, he said.

“We are in this strange gray area, a transition period between the time when we all used to go to libraries and look at casebooks, and where we’ll be in five to 10 years when, perhaps the courts themselves, or perhaps independent information providers, will organize this information online, for free, and make money off the advertising,” Adams said. “That’s the way we’re moving.”

Related to that, Adams said, the courts now have to employ tech-savvy information architects for their web sites, to make the information understandable and accessible.

“Second,” Adams continued, “judges and their staffs are accustomed to set their own schedules. But when courts are in effect players on the Internet stage, they have to work on Internet time. They’re expected to provide information faster.”

Third, while lawyers are the primary audience for court materials, a growing number of journalists and, to a lesser extent, the general public want to see court decisions in real time, he said. “That’s something new for journalists to file stories fast, and courts are under pressure to give information to journalists as quickly as possible,” Adams said.

“Third, it also means that courts need to learn a somewhat different language,” he said. “They need to think more clearly about the audience for their decisions.”

That applies to journalists as well, especially those with legal backgrounds, who sometimes forget that the general population is not familiar with legal terminology, Adams added.

Mauro said regarding the public role of the Supreme Court, “Certainly, in coming to the Internet, it’s been very slow.”

A recurring architectural theme at the U.S. Supreme Court building is the tortoise, purportedly symbolizing the slow, steady pace of the law, Mauro noted.

“Remember, this is still the same court that gives out souvenir quills to people who argue before the court. And at least one justice, Justice [David] Suter, does not allow computers in his chambers.”

The biggest concern for the Supreme Court in resisting new technology was security breaches, Mauro said. “Hacking into the system was an eternal fear, as though somebody would hack in on a Saturday night and overturn Roe v. Wade,” he joked. “They’ve finally gotten over that,” due in part to Justice Clarence Thomas, who is a big technology fan, and Chief Justice John Roberts, who represents a younger generation than his predecessor, he said.

Now the court posts decisions on its web site within minutes of issuance, and releases selective audio tapes of oral arguments, Mauro noted.

“I’d like to expand it to all oral arguments, and there’s no reason why all audio shouldn’t be available,” Mauro opined.

“In my cynical moments,” he said, “I think it’s a tactic: ‘We’re giving you all this access here, so don’t bother us about TV cameras in the court,’ which is still a sticky subject for the justices, almost a nostalgia, like they’re the only institution left [that doesn’t allow cameras].”

The change in media coverage due to new technology has been dramatic, Mauro said.

“In 1979, when I first covered the court, when the court issued its decision, the only way you could get information was get a hard copy, then you had to go to your sources for comment,” he said.

The sources, typically, would say: “Call me in a week after I get my copy of Law Week,” Mauro said.

“Now, in a good way, it’s changed completely,” he said. “Now everyone I talk to has read the decisions. In some ways it’s a democratization of the commentary. I can go back to my office and read a blog with a full-blown discussion of a decision that came out an hour ago.”

But there are dangers in the rush to virtual print, Mauro pointed out. He told the story of a colleague who recently had witnessed Justice Ruth Bader Ginsburg taking a long time getting out of her chair and being helped up by Justice Suter following a court session.

Mauro’s colleague wrote on her blog: “I guess I’d better get my Ginsburg file out’” in case the incident was an indication that Justice Ginsburg would be retiring. “That caused an immediate round of speculation” in the blogosphere, Mauro said.

The truth, according to Ginsburg’s later report, was that she had taken off her shoes during the session and was struggling to retrieve one of them.

The lesson is that, “in the end, the same standards of journalism still have to prevail,” Mauro said.

How can courts better organize information

Hibbitts asked Stanley to describe how he organizes his law web sites, and how he would urge courts to better organize the information they disseminate.

“Although I have a law degree,” Stanley said, “I also have a programming background, which is my day-to-day mindset. We normally look for a couple different things to try to pull into our sites. Some things are simple: case law, Supreme Court [decisions]. But I also rely a lot on what I hear from law librarians. They lead you to what they’re looking for, and what the law professors are interested in.”

He also mines information not available for free, and information that is hard for many users to access because of limitations or glitches in technology, Stanley said.

“For example, I was looking at civil court cases recently. They are not accessible easily on PACER, which is a worthwhile system, but needs to be updated,” Stanley said. “If you just search the PACER site itself, and you want to go across all the different courts, you’ll miss a lot of cases because you don’t get the court’s electronic sites, you don’t get things like the cause of action, judges’ names, other useful information.”

Stanley’s web sites update court dockets three or four times a day. “We also periodically go back a month or so, simply because there can be a filing date, but it’s not actually put into the system until later,” he said.

Merely posting information nets significant traffic, Stanley said.

“Once we get some of our information up, then we look how to tie in to the community,” he said. “If you really want repeat users and have new people using the site‚ that’s a community component.”

By tracking hits he knows when legal professionals and law professors are using a site. “You want to make it easy for them to comment on things, to get involved with the contents, something that makes it more for them than just a pure informational source,” he said. “That takes more thought in terms of the user interface, for example. You have to make it simple and you have to protect against getting random spam.”

As for court web sites, Stanley said that the Supreme Court site is outstanding compared to some federal courts’ sites, which often are incomprehensible.

He advocated for courts to use the same standards of presentation, such as a standard interface. It also would be preferable to see more of the background, briefs, appeals, citations, transcripts and other related documents in addition to the decisions, he said.

The changing voice of law

Hibbitts asked: How has the Internet changed the voice of the court? Has the role of the journalist changed?

Mauro said, “I haven’t seen any change in the justices’ voices, in their opinions. Justice [Stephen] Breyer said he’s consciously writing for the general public, but if you look at his opinions, the general public is a post-doctorate plus law degree general public; his decisions are so dense. And there’s so much volume to review.”

Still, the role of the legal journalist has evolved in good ways, Mauro said. He recalled a day when the Supreme Court issued seven decisions, several of which were worthy of front-page coverage.

“We put a question to Chief Justice [William] Rehnquist: ‘For the sake of the public, not just for us, could you spread out your decisions a bit?’

“His answer was a classic: ‘Just because we put out seven decisions on one day doesn’t mean you need to write about all of them. Why don’t you save some of them for the next day?’ — showing a deep understanding of how the news media operate,” Mauro quipped.

Thankfully, Mauro said, the pace has evened out. “I don’t think we’re in danger of seven-decision days any more, and they seem to be a little more solicitous of our jobs. But in terms of their writing, I’ve seen no change.”

Adams responded, “Decisions are one layer of information and how understandable that is to the public is debatable. But there’s another category of writing, not the opinions themselves, but information about the case, which is often times unintelligible.”

Adams cited the Zacarias Moussaoui trial as an example. Prior to taking the reins at the ABA Journal, Adams served as public information officer for the U.S. District Court for the Eastern District of Virginia, where the Moussaoui case was tried.

“In the Moussaoui case, we were largely talking to reporters as surrogates of the public and we put out chapter and verse about the procedure about how the jury was going to be picked, which was complicated even for lawyers, let alone for lay people.”

He was asked how long the jury had to deliberate.

“First I thought that was a dumb question; there is no time limit on jury deliberations.”

But it got him thinking: Does the general public know that? “They might think there is a limit, and under certain circumstances there are limits,” Adams said. “I think sometimes the court reporters, lawyers and court officials forget that those basic facts are not known by the public, so I think court web sites need to do more to try to explain the basics.”

The changing roles of media

For publications that straddle print and online media, what is the effect on traditional media’s changing expectations? Hibbitts asked.

Adams said, “We’re a monthly magazine. It’s not a good place to be if you want to have an effective web site.”

The ABA Journal publishes 20-25 stories a month and currently those are what are posted online, he said. But the journal is in the process of re-vamping the site to include information updated on an hourly basis, similar to JURIST. “You have to use a medium in its natural meter. That is the natural meter of the web: information right now,” he said.

The site also will connect to blogs from lawyers who are experts in their field, Adams said. “If you create a page with all the information on tax law, both the news and the analysis of the lawyers, you’ve got something that doesn’t exist online right now. It gives us an opportunity to reach an audience that otherwise we may not have reached.”

He noted that print publications of all types face dwindling advertising revenues as more readers migrate to online versions. “There’s an enormous cost to printing the ABA Journal and distributing it to 400,000 lawyers,” Adams said. “In fact half of our costs are on the production side alone. Production costs for putting information on the Internet — if not zero — is close to zero.”

Bloggers and other strangers

“We’ve used the ‘b’ word,” Hibbitts said. “What do you make of the blogging feeding frenzy?”

Mauro said, “It’s really hard to know. At this point we’re all groping and struggling with the blogosphere. We’re not just blind and want it to go away, we want to work with it to see if we can go with the flow and get ahead of the flow. But it does have an impact.”

Mauro said that in his 20 years of writing a column on the Supreme Court, he scooped a number of law clerk stories. “I would find out some interesting information on a law clerk, I’d file it away and do a story that no one else would have,” he said.

“When Justice [Samuel] Alito hired Attorney General John Ashcroft’s chief of staff as a law clerk, within 10 minutes it was on a blog and the next day it was in the Washington Post. That eclipses the old pace of things,” Mauro said.

“What I think is the down side, the Legal Times comes out every Monday in the paper version, and we have to realize that a lot of what’s in the paper is online already. We have to be careful that the paper isn’t some sort of dumping ground of material that’s already been out there.”

Stanley said, “We have a couple of thousand blogs in our directory right now. I would say that there are a lot of blogs out there that really aren’t any good, even if they’re written by lawyers. Sometimes they claim they’re written by lawyers and they really aren’t. So there are a lot of editorial issues that we face.”

He said he tracks the frequency of a blogger’s postings to get in the directory the ones who post most often.

“We also try to do a breakdown when we do a blog search. In order to get to higher level of quality results you can certainly break them down as ‘trusted sources,’ ‘somewhat trusted sources,’ ‘maybe trusted’ and ‘who the hell knows.’ We also use user feedback, but that takes time,” Stanley said.

Law professors are the most frequent bloggers in the legal community, he said.

“It’s still wide open for others. Even if you’re a beginning lawyer, and you want to get some notoriety relatively quickly with the Bar Association, just start blogging and you’ll get picked up,” Stanley said. “It’s a much easier way to get notoriety than issuing a press release. And if you want to get in touch with the press, just mention their name in a blog post. They all search their name to see what you say about their stuff.”

Mauro added, “It is true that blogging has broadened the scope of expertise. For example, Doug Berman writes a blog on sentencing law and policy. Anything that moves in the field of sentencing law, he’s got it, he analyzes it to a fare-thee-well, and now you see him quoted on page 1 of The New York Times. That’s primarily because of his blog. Whereas before, The New York Times might not have discovered a professor from Ohio State, and that’s a good thing.”

—Peter Hart

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