When News Doesn't Make the News

Whether or not George W. Bush wants to admit it, he owes the news media a lot. On issue after issue -- increased government secrecy, tax cuts for the wealthy, broken promises on issues like the environment and Social Security -- the media has largely given Bush a pass by failing to challenge the official administration line. Even with Enron and the possible botched opportunities to prevent Sept. 11, the press, after brief initial feeding frenzies, quickly redirected the stories away from Bush.

If we are to judge journalism by the Washington press elite, it would appear that the art of honest-to-God investigative journalism is in retreat -- and has been for some time.

A number of explanations have been suggested for this journalistic inertia, including corporate ownership of most major news outlets, increased demands for profitability within news divisions and the Washington press corps' fondness for Bush as a person. All of these may play a role, but my own recent experience has caused me to entertain another possibility: Maybe reporters have just plain gotten lazy and are too accustomed to accepting "spin."

My enlightenment to this possibility arose recently -- strange as it may sound -- when I represented a hospital in a medical malpractice trial. Without getting into details, the basic claim in the case was that a man died unnecessarily from a heart attack because he had to wait more than an hour to be seen by an emergency room doctor. It became clear even before the trial started that it was going to produce an unusually large amount of media coverage, particularly by the local newspaper.

I was less than thrilled. The truth is, I hate dealing with reporters. I'm a lawyer, not a press agent, and I have never claimed to be an expert at media spin. Talking to the news media is dangerous for guys like me -- there are few things in life more certain than if you talk to a reporter you will end up being misquoted; some ideas are not easily reduced to soundbites. It has also been my experience that, all too often, legal reporters begin their coverage of lawsuits having already chosen the story line. In other words, they tend to pick the good guys and the bad guys before hearing any evidence. So while I respect the fact that journalists have a job to do, if I had my druthers, it wouldn't involve me.

Not all lawyers feel that way. In fact, some eat up publicity with the enthusiasm of a dog going after a slab of bacon. The lawyer who represented the plaintiff in this case is definitely in that camp, as he will freely admit. Publicity can be good for business. When a lawyer is featured on the television news or in the papers as someone who handles big cases, it often brings in a flood of new business. It's the best form of advertising available, and it's free.

So when reporters do stories on issues that involve lawsuits, they have no problem finding lawyers who will be helpful to them -- very helpful. This can make life much easier for the reporter. There's no need for time-consuming research. Whatever the reporter needs -- documents, transcripts, interviews with witnesses and experts -- the lawyer will cheerfully provide. This has created an oddly symbiotic relationship between some journalists and lawyers: The lawyer provides data for the reporter and the reporter provides headlines for the lawyer.

Have you noticed, for example, how often segments on television news magazines deal with court cases? For the producers of the programs, straining under constant pressure to contain costs, these are cheap and easy segments to put together. The lawyers have already done most of the work.

The big question becomes, of course, what this particular brand of journalism does to a reporter's objectivity. Just how great an advantage does the guy feeding the story to the reporter get over the other side? That's a question I had to ask myself while getting ready for trial, because I knew that the newspaper's legal reporter had developed a relationship with the opposing attorney through coverage of previous cases.

As the trial got under way, it quickly became apparent that the reporter intended to sit through the entire case. Every day a new story ran, and every day we got hammered. A good example involves a local emergency room doctor who testified as an expert witness for my client. By any objective standard he was a killer witness -- smart, likeable and completely credible. The plaintiff's lawyer didn't lay a glove on him in cross-examination. Yet, to read the paper the next day you'd have thought he was bludgeoned into a tearful pile of Jell-O. Maybe that's how the reporter honestly saw it, but I don't personally see how.

The expert called me the next evening. "I thought my testimony went pretty well," he said, "but based on what's been reported everybody thinks I got killed."

"Just tell them not to believe everything they read in the paper," I told him. I found myself repeating that advice a lot.

One evening, for example, I went to the hospital to meet with a witness. As I was leaving, one of the nurses from the emergency room came up and pointedly said, "Mr. Day, I'd appreciate it if you would be more aggressive in court." Who could blame her? The nurse and her colleagues felt like they were being dragged through the mud in the paper every day. She wanted someone to fight for them. And by reading the newspaper accounts, she could reasonably have assumed that the plaintiff's lawyer was routinely stomping me into the courtroom floor.

"Don't believe everything you read in the paper," I told her. She didn't seem convinced.

The trial stage of a lawsuit is incredibly busy. So it isn't as though I spent a lot of time discussing the press coverage while it happened. But when I talked to people later, it became clear that virtually everyone who had followed the case in the newspaper had been convinced that the hospital was going to lose and lose big.

But it didn't. The jury concluded that while there was no question, in retrospect, that the patient had been critically ill when he arrived at the hospital, his symptoms didn't suggest that to the triage nurse. She reasonably concluded that he could safely wait to be seen while other critically ill patients were cared for. While his death was a tragedy, it wasn't caused by negligence.

I obviously have no way of knowing how much, if at all, the chumminess I perceived between the reporter and the opposing lawyer played into the one-sided nature of the coverage. Perhaps the reporter, or his editor, just thought that painting the hospital as the bad guy would give the story more appeal, a classic re-telling of David vs. Goliath. Or it's possible they really believed that the hospital deserved such treatment.

But by latching onto the easy good guy vs. bad guy angle, the reporter missed the opportunity to write about the real story of the case, which should have been the national crisis of emergency room overcrowding -- a crisis brought about in large part by our society's shameful failure to address the need for universal health insurance. To cover the trial from that perspective would have required hard work, research and the necessity of explaining a concept involving more than a third grade level of complexity. And, sadly, such things are rarely the stuff of journalism today.

Am I stretching too far in trying to compare the actions of this Midwest legal reporter to those of the journalistic royalty of the presidential press corps? I don't think so. The truth is, the relationship between the White House and White House correspondents is every bit as symbiotic as the associations legal reporters build with certain lawyers. The Bush administration, like others before it, provides reporters with information and inside access that is critical to their jobs. By all accounts, Bush himself also provides them with a much-appreciated salve to their well-developed egos, by handing out nicknames and engaging in friendly chit-chat. In exchange, the reporters disseminate the administration's point of view to the public.

There is nothing inherently wrong with this, of course, so long as reporters do the leg work necessary to verify the truth and, when appropriate, challenge the administration's positions. It would also help if they explained complex issues to the public in a manner beyond he-said, she-said. The problem is that all too often this isn't happening. For a profession that writes so much about the nature of political spin, it seems awfully willing to put forth whatever information it's fed.

Steven C. Day is an attorney practicing in Wichita, Kansas.

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