By Richard Tofel, writing in NiemanLab…
Sometime early next month, I will formally retire from the practice of law after 26 years at the bar, including more than 21 years as a full- or part-time newsroom attorney.1 As I do this, I want to take stock of a few of the more important things I think I have learned in this role.
One of the very first lessons I learned in reviewing stories prior to publication is that press lawyers are at the mercy of reporters. Quite simply, the attorney must assume that the facts in a story are accurately reported — which is, appropriately, the first and last legal line of defense for journalism. Sure, you can seek to double-check a pivotal fact, or an assertion that you fear is inaccurate or just wonder about. But, by and large, the pre-publication process is not a fact-checking exercise, and it would be intolerably costly for it to be otherwise. The upshot: behind all of the best press lawyers stand great reporters.
The first and most critical objective of newsroom lawyering is not to prevail in lawsuits, but to prevent them from being filed. Once cases are filed, the costs are considerable, in terms of both cash (libel insurance deductibles are skyrocketing) and precious time lost by reporters and editors.
In seeking to prevent cases from being filed, I have learned that it’s enormously important, if possible, to understand the perspective of unhappy story subjects. At least three practical points result:
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