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Trial By Jury.

Trial By Jury

Steven Brill and the editors and reporters of The American Lawyer. Simon and Schuster. Bismarck said there were two things the public should never see being made: sausages and legislation. He might have added jury verdicts. In this collection of American Lawyer pieces covering 16 big trials of the eighties, jurors sulk in corners, sleep in court, and ignore the law routinely. Yet at times they perform their duties so responsibly that it's downright inspiring--especially compared to the incompetent and petty lawyers who prance before them. Is this any way to run a legal system?

Maybe not--but it's certainly the right way to report on one. And it's the kind of coverage that's too often neglected. Most legal controversies that capture national attention are debates about abstract principles. Can the constitution be read to contain a right of privacy, for example, and does that right include the right to abort a fetus? Can a public figure ever recover damages for libel, or would permitting such recoveries deter the aggressive press coverage the First Amendment deems critical in a free society?

These questions are important, of course, and make for sexy Time and Newsweek covers. But what's equally important yet frequently ignored is how well the legal principles that don't make headlines are applied in the trenches every day.

The "legal realists" of the 1930s--led by Jerome Frank, New Dealer, Yale professor, and federal judge--were the first to get exercised about this neglect of the front lines. Their argument was straightforward. Legal decisions are the product of two things: rules (Thou shalt not kill) and the facts that get plugged into them in a particular case (James killed Scott, so James goes to jail). This means that as citizens (and journalists) we've got three things to worry about: Are our rules really the right rules? Are we sure the true facts are being uncovered? And are the rules actually being applied to produce the result?

Big thinkers (then and now) prefer to focus on the first of these issues--on what "the law" should be. But the realists understood that if the fact-finding process is fouled up, or if the appropriate rules are in reality systematically ignored, then even the most theoretically just legal system may be a mockery and a fraud.

There's a message for serious legal journalists here: Though prestige may come with the Supreme Court beat, a lot of the real action is elsewhere, where judges and juries get their hands dirty.

Our top news outlets haven't been impressed enough by this fact to make a habit of such coverage. Woodward and Bernstein's The Brethren helped uncloak the mechanics of high court decision-making. And movies like Twelve Angry Men make useful civic fables. But this "realist" law beat had been left largely uncolonized by quality journalists until Steve Brill planted his flag a decade ago.

To be sure, The American Lawyer is still a trade rag, packed each month with law firm gossip, summer associate surveys, and breathless pullout sections on managing billables in the nineties. But at its best (and most anthology-worthy), the magazine has seen its mission as reporting on high-stakes trials to illustrate the successes and failures of frontline legal decision-making--how and why judges, juries, and lawyers do what they do, and why the rest of us, as citizens, should care.

On the strength of this mission Brill has attracted a string of first-rate reporters (including James Stewart, Connie Bruck, and Stephen Adler) that have made him one of The Wall Street Journal's main farm clubs and one of journalism's best training grounds. Along the way he's gone far toward attacking the niche Jerome Frank yearned to see filled.

This collection is filled with cases in point. Take Brill's piece on Mobil chairman William Tavoulareas's libel suit against The Washington Post. The Post wrote in a 1979 story that Tavoulareas had used his position to "set up" his son in a lucrative shipping business that counted Mobil itself as its only customer. Under the law, for the high-profile Mobil executive to prevail, he'd need to show that the Post deliberately published falsehoods (of which there were virtually none), or that it acted with reckless disregard as to whether its assertions were true.

Back in the jury room, however, as Brill's interviews with the jurors reveal, this legal standard was turned on its head. A 27-year-old foreman used his "authority" as a reference librarian in the Library of Congress's law library to make the deliberations turn on whether the Post had sufficiently "proved" what the article had claimed--a notion utterly irrelevant to liability, and in fact subversive of the law's solicitude for hard-hitting press coverage of public figures.

In the John DeLorean entrapment case, however, a different jury dynamic emerged. The press at the time hyped the jury's acquittal as a broad signal to law enforcement authorities that they'd "gone too far." But Brill's reporting reveals a team of dedicated, thoughtful citizens scrupulously applying the judge's instructions to the evidence before them, alarmed by the notion that they were "sending signals" to anyone.

Brill and Connie Bruck explicate the Westmoreland and Sharon libel trials in several solid pieces. Their own exacting standards--particularly in explicitly sourcing their data ("Four jurors said" rather than "Jurors agreed") so that the reader can judge its credibility for himself--make them effective critics of sloppy journalism elsewhere.

On display throughout the book, of course, are the tit-for-tat, nit-picking, fetish-for-trivia pathologies that make lawyers (and I'm one of them) such a contemptible breed. Those details, combined with ample showcases of audacious puffery (Pennzoil's lawyer tells the jury, for example, that the suit against Texaco is "the most important case ever brought in the history of America--there isn't any question about that"), should make the book a handy reference tool for devoted lawyer-bashers.

Not everything works in these pieces, however. In articles on the Texaco-Pennzoil battle and the fight for Richard Lord's advertising agency, Brill gets bogged down parsing contract language in mind-numbing detail. A "layman's edit" might have helped these pieces move more gracefully beyond their original legal readership.

In addition, Brill and company often lapse into movie-reviews of the courtroom action that resemble the kind of trivializing legal journalism they aspire to rise above. Is it really that important to know, for example, that one lawyer's "Adolfo-clad wife, who often sits behind him" in court, "softens his image"? Or that another's "repertoire" includes a deference to the judge that is "a touch ingratiating"? Isn't this a tad silly?

These quibbles aside, the collection offers a unique and searching perspective on how our legal system is handling--and fumbling--some important issues. One word of advice: avoid legal overdose by reading the pieces in several sittings. It's better for your health.
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Author:Miller, Matthew
Publication:Washington Monthly
Article Type:Book Review
Date:Mar 1, 1990
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