“Truth won out over partisanship, as it should.” is a post from Overlawyered - Chronicling the high cost of our legal system

Climate deniers as “enemy of the state” is a post from Overlawyered - Chronicling the high cost of our legal system

Caleb Brown interviews Eric O’Keefe on the abusive Wisconsin John Doe prosecution of alleged unlawful campaign coordination, much covered in this space. O’Keefe says the growing scope of campaign regulation allows wider scope for the law to be used to harass and persecute outsiders and minority viewpoints, and also speculates as to why the prosecution has not been subject to more intense scrutiny in the press: “The prosecutors have cultivated relationships over a long period of time with the newspapers. Prosecutors get a lot of good stories first, like who they’re going to indict, who got arrested…so the newspapers tend to pander to prosecutors and together they have extremely powerful weapons.” Emails from the Wisconsin John Doe targets’ private accounts, for example, scooped up by prosecutors’ secret subpoenas, later surfaced in stories in the newspapers putting the targets in a bad light.

“Wisconsin’s ‘John Doe’ Raids Two Years Later” is a post from Overlawyered - Chronicling the high cost of our legal system

The problem illuminated here isn’t just one of possible government misconduct. It’s the too-cozy too-credulous relationship between law enforcement and the press, and the very questionable decisions the press makes about what is a story. I’ve been writing about this for some time. The press thinks that a picture of a guy being perp-walked is a story, but the willingness of the cops to stage that picture to humiliate the defendant is not a story. The press thinks that juicy evidence against a defendant is a story but law enforcement’s motive in leaking that evidence isn’t. When the people sworn to uphold the law, who are prosecuting someone for violating the law, break the law to damage a defendant, the press thinks that the leaked information is the story, not the lawbreaking by law enforcers. The press does not, as far as I can tell, assess when it is being used as a tool by law enforcement. How could it, if it wants to preserve its source of tasty leaks?

The press and the prosecutors is a post from Overlawyered - Chronicling the high cost of our legal system

Executive suites and social justice at the NYT, one draft at a time is a post from Overlawyered - Chronicling the high cost of our legal system

Langewiesche responds to Garvin is a post from Overlawyered - Chronicling the high cost of our legal system

Still, like many others, I was floored by Glenn Garvin’s new column in the Miami Herald based on emails introduced into evidence in the endless litigation. Even knowing how writers habitually butter up key sources, I wouldn’t have expected Langewiesche to assure Donziger that “You and I are now firmly on the same side” and that writing the article had been “particularly satisfying to the extent that it supports your efforts, and you personally.” Nor would I have expected Langewiesche to have sent Donziger a copy of his article weeks before it was published, or for Vanity Fair’s editors to have allowed him to do this on a highly contentious topic of public controversy, assuming they knew.

The emails go on and on, as Garvin summarizes them, depicting

Langewiesche as Donziger’s camp follower at the best of times, his sock-puppet at the worst.

The reporter asks Donziger to prepare lists of dozens of questions to be asked of Chevron. And he begs Donziger to help him prepare arguments about why there’s no need for him to do face-to-face interviews with Chevron officials, as they’ve requested, even though he spent days meeting with Donziger and his legal staff.

“I want to avoid a meeting, simply because I do NOT have the time. But I don’t want to go on record refusing a meeting,” writes Langewiesche. “Perhaps I could say that my travel schedule is intense . . . ” He not only submits his emails to Chevron for Donziger’s approval (“What say, Steve. I gotta send this tonight”) and even lets him rewrite them.

In short, Vanity Fair, which positions itself as the glossiest of high-toned journalistic outlets, got played like a cheap ukulele. And I didn’t know this either, which I’ll quote Garvin on, parentheses and all: “(Department of Extraordinary Coincidences: Donziger’s wife at the time worked in corporate communications at Condé Nast, the magazine’s publisher.)”

By coincidence, I’m part way through an advance copy of the interesting new book by Paul Barrett of Business Week on the Chevron-Donziger-Ecuador mess, titled Law of the Jungle. Not to give away anything, but it fills in many areas of background that were new to me about this incredible (still-in-progress, attempted) legal heist (links to Barrett’s earlier coverage here). There’s also a new mini-book by Michael Goldhaber entitled Crude Awakening: Chevron in Ecuador, unseen by me.

P.S. Bonus Vanity Fair connection: journalist Kurt Eichenwald, whose trial-lawyer-assisted role in the Texaco Tapes affair left such a bad impression, has for some time been ensconced as a contributing editor at Vanity Fair.

How Langewiesche got that Vanity Fair story is a post from Overlawyered - Chronicling the high cost of our legal system

My own theory — admittedly shaped by my professional interests — is that if you dig beneath the failure of a credulous press here you find a failure in legal ethics. While the press did publish one untruth after another about what happened that night and about the principals, a large share of those untruths can ultimately be traced to the offices of Benjamin Crump & Co., with some later help from Angela Corey’s office.

What about ideological outlets like ThinkProgress, which disgracefully promoted one error after another in egging on the press frenzy? To quote what I wrote at the time Zimmerman was charged:

The thing is, “Stand Your Ground” hadn’t really been a pet issue one way or the other for many of those who now harp on it. I think the better answer is: because many people yearn for ways to blame their ideological opponents when something awful happens. It’s much more satisfying to do that than to wind up wasting one’s blame on some individual or local police department for actions or decisions that might not even turn out to be motivated by ideology.

Consider, for example, the efforts to set up the conservative American Legislative Exchange Council as somehow the ultimate villain in the Martin shooting. Left-wing groups, assisted by labor union and trial lawyer interests, had been pursuing a campaign against ALEC for months before the Martin case, in hopes of making the group radioactive among generally liberal donors like the Gates Family Foundation and the Coca-Cola Co. Nothing had worked — until the synthetic Stand Your Ground furor finally afforded an opening.

Press, lawyers, advocacy groups, and the misreporting of the Martin-Zimmerman affair is a post from Overlawyered - Chronicling the high cost of our legal system

As in Ledbetter, it was a vote of five-to-four, with the Republican appointees in the majority and the Democratic appointees in dissent. In Vance v. Ball State University, the Court narrowed the definition of “supervisor.” This is important because plaintiffs can win in Title VII cases only if they suffer discrimination from a supervisor, not from a peer in the workforce.

If “discrimination” is read to include “harassment,” as the law does in fact read it, this is simply untrue. Here is the second sentence of the syllabus of Vance (which is word-for-word identical with the third sentence of Justice Alito’s majority opinion):

If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions.

And here is Justice Ruth Bader Ginsburg on page 4 of her dissent stating the same standard, unchanged by the opinion:

if the harassing employee is a co-worker, a negligence standard applies. To satisfy that standard, the complainant must show that the employer knew or should have known of the offensive conduct but failed to take appropriate corrective action.

There are many miles of difference between “you can’t win,” which is how Toobin chooses to summarize the current right to seek damages for co-worker misconduct, and “you can win but you need to show employer negligence,” the more accurate way to summarize it.

Nor is Toobin the only one to make this mistake. An error-strewn U.K. Guardian opinion story reacting to the case asserts (to quote its subheadline) that “the US supreme court has ruled that job harassment only counts if it’s from a ‘supervisor’.” That’s flatly untrue, for the reasons above. Author Jason Farago also swallows whole the sharply disputed contentions of misconduct leveled by the plaintiff in the Ball State case, although no level of the court system appears to have done so; a trial court found Vance’s treatment “neither sufficiently severe nor pervasive to be considered objectively hostile for the purposes of Title VII” and neither the Seventh Circuit nor the Supreme Court elected to reach that issue. Indeed, Justice Ruth Ginsburg in her dissent chooses to illustrate the feared impact of the new rule by reciting details of other cases that could be affected, as opposed to Vance’s.

Admittedly, it’s not easy to stay on top of the details of a law as complex as Title VII, and we all make honest mistakes. But when given the choice between risking dullness by accurately describing the actual state of the law, and embellishing a tale of conservative insensitivity so as to inflame their left-leaning readers, Toobin and Farago appear to have a head start on that old bit of advice, “print the legend.”

Vance v. Ball State: the press miscoverage begins is a post from Overlawyered - Chronicling the high cost of our legal system

Great moments in litigation journalism is a post from Overlawyered - Chronicling the high cost of our legal system