What is a "journalist"?
Nick Coleman of the Minneapolis Star-Tribune wrote yesterday: "Do bloggers have the credentials of real journalists? No. Bloggers are hobby hacks, the Internet version of the sad loners who used to listen to police radios in their bachelor apartments and think they were involved in the world. Bloggers don't know about anything that happened before they sat down to share their every thought with the moon. Like graffiti artists, they tag the public square -- without editors, correction policies or community standards. And so their tripe is often as vicious as it is vacuous."
On the one hand, this is all too typical. The constant meme of the Left (including much of the mainstream media) is that anyone who doesn't agree with them is stupid and uninformed. This meme becomes less and less tenable as information becomes more and more available. For instance, as anyone reading this surely knows, many of the leading blogs are written by people who are lawyers or law professors (www.powerlineblog.com, www.hughhewitt.com, www.instapundit.com, etc.) This information is readily available on the websites themselves. But let's ignore the silliness of Coleman's rant and focus on the question he raises about who is better "credentialed" to analyze news.
Think about it. What "credentials" does the average newspaper writer have? A B.A. in journalism. What credentials do lawyers have? At the very least, a B.A. or B.S. followed by a J.D. (Some of us, like me, also have Ph.D's, but that's another story.) Do journalists have any CLE they're obligated to take every year? I've never heard about that. But lawyers are obligated to take continuing legal education classes every year to keep their licenses. Do journalists have special training and experience in judging evidence? Maybe so, but obviously lawyers have more training and more experience, plus lawyers have normative rules (the Federal Rules of Evidence, state rules of evidence) that govern what counts as relevant evidence, what makes a witness competent, what types of questions (leading, argumentative, etc.) are beyond the pale, why hearsay is problematic, why character evidence is problematic, why expert witnesses have to be qualified in their particular subject matters, why documents have to be authenticated to be used at trial, why original writings (not copies!) are the best evidence, etc.
More importantly, lawyers understand the adversarial process, and understand that truth emerges (hopefully) when opposing counsel cross-examines and impeaches a plaintiff's witnesses.
Consider what would have happened if the National Guard memo story foisted upon the public by Rather and Mapes had occurred in the context of a civil case in federal court. They would have been produced in discovery. A reasonably competent litigator would have subpoenaed Bill Burkett for a deposition under oath. He would have tracked down the Killian family, General Staudt, etc., and deposed them. He would have hired a handwriting expert and a forensic document specialist to opine that they were forgeries. He would have deposed CBS' expert and probably moved to preclude his testimony through a Daubert motion. Very possibly, if it were determined that the documents were forgeries, a motion for sanctions against CBS would follow. BUT ALL OF THIS WOULD HAVE HAPPENED BEFORE THE DOCUMENTS EVER CAME NEAR A JURY! The difference with "journalism" is that they go to the jury before their evidence has been tested at all.
More on this another time.
On the one hand, this is all too typical. The constant meme of the Left (including much of the mainstream media) is that anyone who doesn't agree with them is stupid and uninformed. This meme becomes less and less tenable as information becomes more and more available. For instance, as anyone reading this surely knows, many of the leading blogs are written by people who are lawyers or law professors (www.powerlineblog.com, www.hughhewitt.com, www.instapundit.com, etc.) This information is readily available on the websites themselves. But let's ignore the silliness of Coleman's rant and focus on the question he raises about who is better "credentialed" to analyze news.
Think about it. What "credentials" does the average newspaper writer have? A B.A. in journalism. What credentials do lawyers have? At the very least, a B.A. or B.S. followed by a J.D. (Some of us, like me, also have Ph.D's, but that's another story.) Do journalists have any CLE they're obligated to take every year? I've never heard about that. But lawyers are obligated to take continuing legal education classes every year to keep their licenses. Do journalists have special training and experience in judging evidence? Maybe so, but obviously lawyers have more training and more experience, plus lawyers have normative rules (the Federal Rules of Evidence, state rules of evidence) that govern what counts as relevant evidence, what makes a witness competent, what types of questions (leading, argumentative, etc.) are beyond the pale, why hearsay is problematic, why character evidence is problematic, why expert witnesses have to be qualified in their particular subject matters, why documents have to be authenticated to be used at trial, why original writings (not copies!) are the best evidence, etc.
More importantly, lawyers understand the adversarial process, and understand that truth emerges (hopefully) when opposing counsel cross-examines and impeaches a plaintiff's witnesses.
Consider what would have happened if the National Guard memo story foisted upon the public by Rather and Mapes had occurred in the context of a civil case in federal court. They would have been produced in discovery. A reasonably competent litigator would have subpoenaed Bill Burkett for a deposition under oath. He would have tracked down the Killian family, General Staudt, etc., and deposed them. He would have hired a handwriting expert and a forensic document specialist to opine that they were forgeries. He would have deposed CBS' expert and probably moved to preclude his testimony through a Daubert motion. Very possibly, if it were determined that the documents were forgeries, a motion for sanctions against CBS would follow. BUT ALL OF THIS WOULD HAVE HAPPENED BEFORE THE DOCUMENTS EVER CAME NEAR A JURY! The difference with "journalism" is that they go to the jury before their evidence has been tested at all.
More on this another time.
posted by PDB at 10:41 AM
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