Tuesday, April 22, 2014

Why Did the Chicken Cross the Road?

Thanks to our often absurd legal system, you may never know. 

To:      KRUD-TV "In Your Face Investigations” Team
From:  Charles Cheatham
Re:      Script Legal Review
Date:  4/19/2014

As requested, we have reviewed the script you sent us for Part One of your upcoming investigative report entitled, “Why Did the Chicken Cross the Road?” and have screened it for libel, false light, privacy, and other legal concerns.  Our findings and recommendations follow.

 1.      Information contained within your report alleging that the chicken crossed the road, an act that placed it at risk from passing vehicles, may be defamatory and damaging to the owner of said chicken.  The owner had a duty to supervise the fowl, and therefore could be construed as having been negligent in allowing the crossing to take place.  This will leave us some legal exposure, which we can reduce if we withhold the identity of the chicken, and visually tile or "blue dot" any images of the chicken that appear on screen.  These steps will prevent the viewer from linking the bird to its owner, thereby protecting that person, and the station.

2.      The statement contained in your script that the chicken crossed "the road" is not sufficiently accurate.  The road in question is a privately owned and maintained dirt vehicle path through private property.  Failure to point this out may unfairly and inaccurately imply liability on the part of the county.  Therefore, each reference to "road" within the script should be stricken, and the language "privately owned and maintained vehicle access path" substituted. 

3.      Your copy states that that chicken has been "occasionally" observed to cross this same privately owned and maintained vehicle access path in the past.  How many such past incidents constitute "occasionally?"  Two?  Three?  More than three? The word "occasionally" is imprecise and open to misinterpretation, thereby posing the risk of creating an impression in the mind of the viewing public that would be unfair to the chicken and/or its owner.  You should either give the exact number of such past sightings, or, if you are not certain of the number, you should drop this passage altogether.

4.      We are also concerned about the sourcing of your allegation that the chicken has crossed the road numerous times in the past.  You do not indicate where you got this information.   The allegation needs to be properly and clearly attributed within the script to its source or sources, and appropriate documentation cited, if any exists.  Should you decide to proceed with this investigation, we recommend a follow-up meeting or conference call to review your sourcing and to go over any documentation you may have in support of this claim.

5.      The "In Your Face Investigations” unit photographer who shot the video of the chicken crossing the privately owned and maintained vehicle access path obtained access to the property by misrepresenting himself as a member of a state survey crew.  Because this video was obtained under false pretenses, it cannot be used or referenced within the report.  Furthermore, in shooting this video, the photographer also captured audio.  Because he did so while trespassing on property where the owner had a high expectation of privacy, the photographer was in violation of the state wiretapping statute.  Therefore this audio could not be used, even in lieu of the objection presented by the photographer's misrepresentation.  To eliminate these legal risks, this entire segment of video and audio will have to be expunged from the story.

6.      Copy within the script where your reporter demands to know "how something so outrageous could happen" and asking "where were the watchdogs?" may be giving away your neutral reporting privilege, an important defense in any potential libel suit.  We recommend that you delete this strident language, and replace it with words striking a more objective and disinterested tone.

7.      Though the chicken originally agreed voluntarily to grant you an on-camera interview regarding the crossing incident, afterwards it had second thoughts, and phoned you to demand that you not air the interview.  In legal terms, this constitutes a "withdrawal of consent."  A check of case law shows some courts have found that interview subjects have the right to do this, depending on publication deadlines and certain other factors.  In this case, the chicken's admission that it has a neurotic road crossing compulsion, has sought psychiatric treatment, and is now on psychotropic medications as a result of this mental condition, is intensely personal and private information that you could not otherwise have obtained.  In light of that and in light of the chicken’s withdrawal of consent, we recommend that you drop this interview from your report in order to avoid a potential lawsuit for invasion of privacy.

8.      The interview with your one eyewitness to the chicken crossing also presents multiple challenges. For one, regrettably, you agreed to a blanket promise of anonymity without first checking with our firm for guidance on how to negotiate the terms of the deal.  The open-ended promise you made to this source means that you may not be able to call on her to testify in your favor should you be sued for the story.  Our second concern regards the subject’s stated request to be recorded on camera in such a way as to protect her identity.   Your photographer did not follow the guidelines we have given you on such arrangements.  In this case, the photographer did not warn the  subject that none of the options for masking identity—through video tiling or opaquing, shooting the subject in silhouette, shooting only the subject’s hands, and so on—are foolproof.   Omission of this disclaimer leaves KRUD-TV in the position of having made an ironclad promise to protect the identity of the subject that it may not be able to fulfill.  Even though this promise was only verbal, it is a legal contract and as such is fully binding.  And thirdly, the method the photographer chose for shielding the subject’s identity presents a problem.  The photographer shot only the subject’s hands, not her face.  But the subject happens to have a very unique, and therefore recognizable, cross-shaped tattoo across the back of her right hand.   Any relatives, friends and associates viewing this video likely would have no problem recognizing the subject.   Because of these concerns, we recommend that this interview not be used within the report.

We can anticipate in advance your objection that removal of all of your best interviews and your most compelling video will substantially reduce the potential newsworthiness and ratings value of your investigation.  However, we see no other way to reduce your legal exposure.  Proceeding without these changes would present a high likelihood that the station will be sued.  Further, in the event of such a lawsuit, we cannot guarantee that a motion for summary judgment would be successful, which means you would then face the options either of defending yourself in possibly protracted and expensive litigation with an uncertain outcome, or of settling.   Terms of a plaintiff’s settlement offer under these conditions likely would be most unfavorable to the station.

Thank you for allowing us to review this story.  Please don't hesitate to contact us if you have any questions.

Respectfully yours,
Charles Cheatham, Esq.
Ketchum & Cheatham, Attorneys at Law

The contents of this document are subject to attorney-client privilege and may not be intercepted, retransmitted, or in any way shared by any third party with other persons or entities.


Now a word of explanation.

I don’t agree with the advice Shakespeare gave us on how to handle lawyers.  Some of my best friends are attorneys.  Honest.   Still, I take a dim view of our country’s legal system overall.  After many years of observation, I have been forced to conclude that all too often (but by no means always) the law serves only itself.  We have courts of law.  What we need are courts of fact.  Still, it’s what we have.  You need look no further than the methods by which drug dealers settle their disputes to see what life would be like without the law, even with all of its many, many, many flaws.

As it pertains to my profession, journalism, the legal system can be aggravating to the point of provoking a nervous breakdown.  Back in the “good old days,” news directors used to say, “If we don’t get threatened with a lawsuit at least twice a month, we’re not doing our jobs.”  With the rising costs of litigation and falling financial resources for journalism in America, especially at the local level, no one says that anymore.   The threat of frivolous lawsuits is constant and all pervasive.   The hoops we have to jump through to protect ourselves when pursuing a worthwhile story sometimes are quite ridiculous.  And then when a lawsuit is filed, the rights of the journalists often not only are not the top priority, they’re not even on the list.

Here’s one brief example of why I feel that way.  As news director, I was once called upon to attend a court-ordered mediation pitting my station against a man who’d sued over a breaking news bulletin the station had aired at the urgent request of police.   The plaintiff felt the police had gotten the facts wrong, thereby besmirching his name and invading his privacy.   Maybe they had.  Maybe they hadn’t.  But he was suing the wrong party.  Because of the First Amendment and stacks of legal precedent, journalists have a nearly unassailable right to rely on official police reports in good faith, particularly reports issued in an emergency, as this one had been.  A state court rightfully had thrown the man’s case out.  Now the plaintiff was appealing.   He had absolutely no legal leg to stand on whatsoever.   Not even the mediator disputed that.  But the mediator asked me to settle the case anyway—paying the plaintiff to go away—simply because the station could afford it.  I had heard before of the “deep pocket” strategy—sue people with money, and then hope they’ll cough up some cash to make you go away.  But I never expected a court appointed mediator to back such a plan.  Under the auspices of the court, the man was asking me to pay money the station did not owe to a plaintiff who had no case, for the simple purpose of ending the litigation.  I refused.   As a result, in fighting the appeal, which we of course won, my station paid about twice what we would have forked over in the proposed settlement.  But I had convinced my bosses it would be money well spent.  And indeed, we never faced another lawsuit like that one.  I presume word got out that the station would not simply write a check to buy off a frivolous lawsuit.  The expectation that people with “deep pockets” would and should do that—and the pressure I faced from a court-appointed mediator to do exactly that—is one of the great injustices in the American legal system, and is what I mean when I say the system often serves primarily itself.

Today’s constant threat of costly litigation makes it very hard for journalists do their jobs—and often, they simply don’t.  I’ve had news director colleagues and reporters tell me that, because of such risks, their employers do not allow them to pursue any worthwhile investigative stories.   And you wonder why the TV news airwaves are filled with so many house fires, car wrecks, dime-a-dozen stabbings and shootings, and other flashy and trashy but ultimately meaningless spot news stories.   In my career, I have been fortunate enough to work for employers who did believe in aggressive journalism, and were willing to pay for it.  And boy, did they pay.  In pursuing such stories, in every case I’ve been blessed with legal advisers who worked hard to find a way to get aggressive investigations on the air, not to block them. 

However, the process is not without its frustrations.  I was moved to write the tongue in cheek memo above after going 12 rounds with one of my good legal friends over the proposed use of the word “several” within a script.  Unlike the outcome of the memo above, however, ultimately our story did air.  And, yes, it prompted a very formal, very terse legal demand from the attorney representing the target of our investigation.  But the lawyer's client did not sue.  Instead, he went to jail.  Thanks to our excellent and highly experienced legal team, our report had been both journalistically and legally solid. 

The little piece of satire above is offered with affection for those legal friends.  I hope that readers find it enjoyable, and that you will come back for more.  I’m not done poking fun at the legal system.  Not by a long shot.


If you enjoyed this, please share with your friends.  You can find more snarkograms here.  My well-reviewed novel Messages, a TV news exposé and crime drama, is written largely in this style.  And I invite you to subscribe to this blog.

©2014 by Forrest Carr.  All rights reserved.

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