The American Lawyer … On Trial

THE OPEN MIND
Host: Richard D. Heffner
Guest: Steven Brill, Esq.
Title: “The American Lawyer…On Trial”
VTR: 6/24/90

I’m Richard Heffner, your host on THE OPEN MIND…and my guest today is Steven Brill, Editor-in-Chief of The American Lawyer, which covers the business world of that unique group of lawyers at the very top of their profession.

Now, when he was here the first time, the often cutting things Steve Brill had to say and put in print about the law and its practitioners led me to say he seemed to be the “Peck’s bad boy” of the law, which he studied, but didn’t practice. At the time that brought a smile to his face and a lot of “you-said-its’ from the lawyers (and others) who know him or read him. Well, now Mr. Brill has assembled a Simon and Schuster book by the editors and writers of The American Lawyer, entitled, “Trial by Jury”. Its guiding principle seems to be simply to detail the tactics, the deals and decisions that have determined the outcome of a number of the biggest cases of the 1980s.

More pointed, however, is an article Mr. Brill has shared with me about a new twenty-four-hour-a-day cable television channel about to be launched by his company, a project that he says will continuously televise trials from around the country.

And since I most often encourage my guests to speak their minds, not mine, and the business of televising trials is so very much on his mind…I’ll begin THE OPEN MIND today by asking Steve Brill just why that is so. Why are you so taken with cameras in the courts, Steve?

Brill: Well, I think it’s the next step in…in what I’ve been doing for the last…well, now it’s 11 years. I think you would agree, in fact, you said something to this effect the last time I was on here, that I, I’d been responsible for a bit of a revolution in the law in the sense of bringing the workings of law firms and the law business out into the open. Now what I’d like to do is bring the workings of the legal system out in to the open to a lay public, and bring that system into their living rooms so they can see how it really works, how it works well and how it sometimes doesn’t work so well.

Heffner: Now there have been those who have been critical, you’ll grant, of what The American Lawyer has done by way of bringing out into the open the goings-on of the legal profession. Do you think people will have a more approving, totally approving feeling about what you do with cameras in the courts?

Brill: Well, the criticism seems to have subsided quite a bit and is now restricted, I’d say, mostly to the victims. And I think that’s probably what we’ll see with this project. When we started The American Lawyer people thought it was improper to talk about this kind of stuff. I think by the same token there’s a, there’s an undercurrent of feeling…not as strong I might add, that, that bringing what goes on in courtrooms into people’s living rooms might have some, some negative…some negative effects. Having us comment on how the lawyers are doing as they, as they try their cases might have some negative effects. But I think in the end it’s going to be just like what’s happened with The American Lawyer. If anything, what makes me most uncomfortable today about The American Lawyer is that I’m not seen enough as the “Peck’s bad boy”. My “in” box today is filled with press releases and invitations to speak at law firm retreats and all the rest, and I think our audience has come a significant distance toward us, at the same time that, obviously, we’ve gotten better at what we do.

Heffner: You can’t stand that, Steve, right?

Brill: Well…

Heffner: You still need to be the bad guy.

Brill: Let me explain. I think any journalist ought to be uncomfortable about being too popular with the people that he or she writes about.

Heffner: Well now, you say, of course, that the people who complain mostly now are your victims.

Brill: Yeah. And I have to tell you I don’t hear much in the way of complaints about the principle of what we do. Sure we get complaints about stories we write. We get complaints that we welcome when we make mistakes, and I might add, we have a…what I think is the best, most aggressive policy of any journalism company I know of, in making candid corrections of the mistakes that we make. But, that criticism is no longer what it used to be, which is “Why are you…or how can you write about this stuff? Law firms ought to be private. Lawyers ought to be private. Lawyers ought to be anonymous”, and the premise of what we did when we started The American Lawyer was that lawyers are too important to be anonymous and the law is too interesting to be boring, and we can do it in an interesting way.

Heffner: Well now you…okay, let’s, let’s skip over that for a minute…let’s say you’ve established your credentials, and you’re a little sad about it…

Brill: Well, I…

Heffner: …because…come on…you, you always did want to be Peck’s bad…

Brill: Mixed emotions.

Heffner: Okay…mixed emotions. But you say that the same will probably be true and you said that the complaints now are limited to the victims. You said the same thing will probably be true given your venture into cameras in the courts. Tell me what you mean by that. Who will be the victims?

Brill: Well, I think if we…if we had a 24 hour camera, for example, on any courtroom in New York City, or an eight hour camera for that matter and we put the camera on at 9:00 o’clock in the morning…the first victims would be those judges and lawyers who don’t show up until 10:30 in the morning…’cause they’d look kind of silly. Now that would be boring television, and I don’t think we’ll do that, but we’ll certainly keep track of that. On the other hand, judges…the vast majority of judges who are competent and who care about the work they do, I think are going to love what we do because their current anonymity is going to be replaced with real respect of what they do.

Heffner: Particularly since so many of them go up before the electorate. Right?

Brill: Well, no.

Heffner: No?

Brill: No. Wrong. Most of them don’t go up before the electorate in any meaningful kind of election.

Heffner: What do you mean “meaningful”?

Brill: Well, in New York typically, for example, there’s an election, but the judges have the endorsements of all four parties.

Heffner: But this is a pretty good device.

Brill: In most cases…

Heffner: Pretty good campaign device, at least to familiarize that wonderful face and those wonderful words…

Brill: Hmmm…I’d, I’d…most judicial elections are just…Texas is an important exception…but most judicial elections are really not contested in this country. And I might add that what I’m talking about is that most judges when they get up and go to work in the morning, do something that is very important, and they’re called “Your Honor”, and they have great respect in the courtroom, but the rest of the world doesn’t know who they are and what they do. And most of them do a very good job, and I think we’d all benefit from watching this class of public servants. Certainly if you give me the, the judiciary and let me compare it to either in any state, or certainly in the Federal government, the judicial branch with the executive branch, and the legislative branch…the judicial branch wins, as far as I’m concerned, every day of the week. They do a better job, they’re more effective, they’re more intelligent, they care more about what they do, they’re more candid about what they do, and I think it’s about time that everybody saw that.

Heffner: Now, who among the judges will be your victims? Since you said you…you indicated…

Brill: Well, as I said…

Heffner: …the howls will come from the victims.

Brill: Well, the howls will come from the victims and I would say those victims are as likely as not to be lawyers, as they are judges. The prosecutors who now…from now we whom derive images…at least images on television, from their press conferences where they ‘re announcing indictments and saying that this person will go to prison for 137 years for this indictment…those images will now be replaced by, by the real images of what those prosecutors actually do in court. Do they get convictions? Do they present witnesses who, who aren’t stool pigeons, who haven’t been given ridiculous plea bargains in return for their testimony? I think a lot of prosecutors might not like this. There are some, there are some lawyers who today get big headlines because they appear in the gossip columns and put out, you know, press releases or make statements on the courthouse steps who, who lawyers know, when they get into court aren’t very good, aren’t very effective, aren’t very well prepared, and they won’t like this. For example, Roy Cohen would have hated this.

Heffner: Okay. Roy Cohen’s dead, let’s not beat my…beat further my old classmate.

Brill: Marvin Michelson would hate it…he’s alive.

Heffner: Okay. Now, you’ve identified among the practitioners and the judges those who will be the victims of television in the courts.

Brill: Yes.

Heffner: What about the accused? What about those on trial who do not choose to give their permission to be shown on your programs?

Brill: Well, I…I don’t think that there are going to be a lot of victims for this. I think the overwhelming beneficiaries are going to be the people who get to watch the system and learn about the system. The accused…the accused who are found not guilty, I think are going to be much better off if their trials are on television than they are today.

Heffner: Now we’ve got…

Brill: …because today what we…the only thing we see on television today of accused people who go on trial, is we see them walk past the cameras in handcuffs, you know, with a raincoat over their wrists so you can’t see the handcuffs. We see the prosecutor having the press conference, talking about how guilty they are. We don’t see the evidence in court that exonerates them. Where a jury of people, just like people in the television audience, watches the trial, weights the evidence, and says “not guilty”. That we don’t see.

Heffner: Now, if…

Brill: If I were wrongly accused I would, I would give anything to have my trial on television.

Heffner: In other words, Steve Brill, the accused…

Brill: Wrongly accused.

Heffner: The accused…we don’t know whether Steve Brill has been wrongly accused…

Brill: But I am saying I…

Heffner: …or not until…

Brill: …if I were wrongly accused…

Heffner: …the end of the trial.

Brill: If I were wrongly accused, I assume I would know it. And if I were wrongly accused…what I said is that I would love to have my trial on television.

Heffner: Now, if you are correctly accused?

Brill: I would hate it.

Heffner: Okay.

Brill: And my response to that would be, but that’s just a little extra victimization, if you will, that goes along with, with what happens to you when you get convicted.

Heffner: What do you mean “a little extra victimization”?

Brill: Well…you…people, I think, people are entitled to watch the process by which those accused, for good reason, are convicted.

Heffner: Now, Steve, wait a minute, wait a minute. “Those accused for good reason”, you’re, you’re…you’re the lawyer, I’m not, and yet I know darn well…

Brill: Yes.

Heffner: …that the “for good reason” or not for good reason, doesn’t come in until the end of the trial. But you want to have these people…

Brill: No, no, no…

Heffner: …on the camera all the time.

Brill: You just described the result. You said, “What about those who are convicted? Wouldn’t they be victims”? You’re saying they’re convicted…

Heffner: Yes.

Brill: …therefore, you…you’ve described the result for me.

Heffner: And would you…

Brill: And I’m saying…

Heffner: …would you opt for cutting their hands off at the wrists, too?

Brill: No.

Heffner: Or do you think…

Brill: I guess I’m opting for exactly what the Founding Fathers opted for…

Heffner: Which was what?

Brill: …when they wanted trials to be public and they wanted people to be able to go see that process in action.

Heffner: I don’t think that the Founding Fathers, maybe you have a better “in” to them, but as a historian, I don’t think that the Founding Fathers meant that the whole nation was watching the accused. Particularly since once again we do not know whether the accused are innocent or guilty until a judge or a jury decides.

Brill: Well, let’s remember exactly what the Founding Fathers wanted. They wanted trials to be public.

Heffner: Why?

Brill: In the days…ah, let me continue…in the days when the Constitution was written, in the days when, you know, we worried about these things, courthouses were large…were large places with large galleries for an audience. The town would go down to the courthouse and watch a trial. The community was the town. I would argue that with electronic media, the community today is something much bigger than the town, and the town courthouse is inaccessible in the way that it used to be accessible, but it can be accessible with electronic media. That is not a very exotic argument. I assume it’s the argument you made when you, when you decided to do this show. That you could, that you could sit in a studio in New York, and reach people who are… interested in the issues you’re interested in and reach them all over the country.

Heffner: Yes, but…at the moment, at least, I’m not being accused of anything. After this program, I may be.

Brill: (Laughter) Well…

Heffner: But Steve, let me ask again…

Brill: Let me, let me posit…

Heffner: …what the purpose of an open trial…

Brill: Well, as you know, open trial is to make sure, just the same as any other purpose of open government in a democracy. The purpose of an open trial is that the people can satisfy themselves that their government is operating in a proper way.

Heffner: Now…Steve…

Brill: And they can come in and watch it.

Heffner: …I always thought the purpose of an open trial was to provide the accused with a remedy to what once had been Star Chamber proceedings. To provide the accused with a remedy to that…

Brill: Exactly.

Heffner: But not to provide entertainment for the masses.

Brill: Wait a minute. But I’m saying the same thing. To provide the accused with a remedy. You’ve posited two types of accused people. There are two types of accused people. Thos who are wrongly accused, those who are rightly accused. And we took those questions one by one. What I said about those who are wrongly accused is, they should want their trial to be as public as possible, they should want the process to be as fair and as open as possible because that’s to their benefit. And, indeed, when they get acquitted in a closed trial, in a trial that not very many people see, the rest of the world walks around thinking “well, they got off on a technicality, or they’re really guilty” because the only thing they remember is the prosecutor when he had the press conference which was on television.

Heffner: Well…

Brill: That’s one category of people. Those who are wrongly accused. Those who are accused and it turns out they were right to be accused, because the jury finds them guilty…what you’re saying is they have some right of privacy, so that there guilt can be determined in private. I don’t know where that is in the Constitution. I don’t know where that is in common sense.

Heffner: In other words, you don’t know where the right of privacy is to be found. You agree with…

Brill: I know there’s not a right of privacy…

Heffner: (garbled) majority of the Supreme Court.

Brill: I know there’s not a right of privacy for criminals to be convicted in private.

Heffner: No one is saying criminals convicted in private, Steve, and you know that. No criminal is convicted in private right now. What we’re talking about is extending to those who will be convicted, and to those who will be acquitted…

Brill: Right.

Heffner: …the potential for televising their trials willy-nilly, whether they give their permission or not…

Brill: And what you’re saying is the principle detriment to that is an invasion of privacy of those who are, who are rightly accused, and who are convicted.

Heffner: No, I’m not and you know that. You know that what I’m saying is the principle impediment to that is the televising of people against their will, who may well be acquitted. Now you’re making…

Brill: People are televised against their will every day in this country. People are written about against their will.

Heffner: You think that’s good?

Brill: I think they’re, they’re written about against their will every day in this country, and I assume, by your standards, that you wouldn’t want The New York Times to come into a trial, either, because the person might be wrongly accused. Or I guess you’re m ore concerned about those who are rightly accused having their privacy invaded by The New York Times.

Heffner: You can say that over and over again. That’s not the fact. The fact is I’m concerned. I’d been concerned about Steve Brill…

Brill: Yes.

Heffner: …who I believe to be wrongly accused…

Brill: Wrongly accused…

Heffner: I want the whole world to watch my trial if I’m wrongly accused, and I want The New York Times to be there if I’m wrongly accused. Draw me the distinction, if you will, between The New York Times or the Daily News being there, and NBC being there.

Brill: Oh, I can draw the distinction very easily because you say that the whole trial will be on television, and I will, as a part of the crowd outside…

Heffner: …watch the accusations, watch the evidence brought forth against my friend, Steve Brill…

Brill: Yes.

Heffner: …and then I will be delighted to know what his defense is and what his…the nature of his acquittal will be. And, indeed, you say…

Brill: Well put.

Heffner: …you say in this paper, and you say it very directly, you say, “We had hoped the judge would decide differently…etc., etc., I think he should have them in and a trial”, and this is what we’re talking…we’re talking now about a trial going on in New York…”and although it’s a close call, I think he should have had him, and would have had our channel been there with its full text coverage”.

Brill: Yes.

Heffner: You say, “Full text coverage”, and so you’re saying now “I want Steve Brill and the accusations against him shown publicly because then I know that everything in his defense will be shown publicly too”.

Brill: I’m…I’m entitled to…

Heffner: But you later on…

Brill: …credit for a lot of creative things, but not that.

Heffner: Why not?

Brill: That is something that’s in the Constitution. That’s as old as it goes, that trials should be public.

Heffner: No, no, no, but Steve…but Steve, you say, “the full trial”, and then you say five pages later, “taped trials may be edited to exclude a boring expert witness or two or some unimportant procedural skirmish”. Well, doggone it, your “boring expert witness”…

Brill: Yes.

Heffner: …may very well be the one who is going to render or get for you a verdict of “not guilty”, and I want your “boring expert…

Brill: Let’s…

Heffner: …witness” to be shown.

Brill: Let me…

Heffner: How do you know? I mean, how does your television camera…

Brill: Let me give you an example…

Heffner: …know which one it is?

Brill: How does The New York Times know when it decides what part of a trial to cover and what part not to talk about in the article?

Heffner: Steve, do you think there’s no difference between what you are doing with television and what The New York Times does? And if…

Brill: Yeah, I think this…

Heffner: …you think there’s no difference…why do it?

Brill: …I think what I’m doing is going to be substantially more accurate and substantially more inclusive. But, you know, I don’t want to dump all over The New York Times.

Heffner: If you’re going to eliminate a “boring expert witness”?

Brill: Yeah. Let me explain exactly what I mean there.

Heffner: Okay, because I’m reading from Steve Brill.

Brill: Sure. Exactly what I mean is that very often in trials, you have something, for example, called a chain of custody witness…a witness who has to establish that the, that the gun that’s in the plastic bag that’s on the evidence table in the courthouse, in the courtroom, how that gun got from the scene of the crime to the courtroom. And often the defense counsel won’t stipulate to the various…on the various ways it got there. You know, that the policeman picked it up, sent it to the ballistics lab, etc., etc. Those kinds of witnesses which are really anti-climactic, typically don’t mean anything, we will make editorial judgments and that we don’t need to carry them, and we might not carry them. We won’t do very much of it. But we might not do it. Now I dare say that in any trial you’ve ever heard of the Daily News, The New York Times, the Washington Post has never, has never carried that testimony. So I don’t think it’s a very controversial point.

Heffner: But you’re making the point that “don’t worry…

Brill: Yes, “don’t worry”…I’m making the point…

Heffner: …this is going to be…this is going to be…

Brill: I’m making the same point that everybody makes who is a journalist and certainly people in newspapers make a lot more than I’m going to make, with…with the kind of coverage that we’re going to do, which is that we are editors and we are going to try to be as fair as we possibly can be. You know, sometimes we’re going…you know…sometimes The New York Times is unfair, sometimes the Washington Post is unfair, sometimes the networks are unfair. We will…we will try to be a lot less unfair because we’ll be that much more inclusive and being making that many fewer decisions.

Heffner: Well, let’s talk about…

Brill: But I take your point…

Heffner: …how much more inclusive…how much more inclusive…Now, I’m not arguing now…I want to know about a trial taking place in New York…

Brill: Yes.

Heffner: …this coming week.

Brill: Yes.

Heffner: It will be an important trial. It will have its slow moments. God willing, and judicial procedure will have its very, very slow moments.

Brill: But we think, as I know you know, we think because you’ve read through this whole article, that’s in this issue of The American Lawyer, we think that those slow moments are going to be part of the drama of the trial and we can make them interesting. And we will carry them.

Heffner: What do you mean, “make them interesting”?

Brill: We will…by explaining to people why these moments are happening, but explaining what the purpose of them is, we think we can make them interesting.

Heffner: Now, you mean, as they are going on you are going to have “voice-over”?

Brill: Yeah. So the kind of voice-over that you see in a golf match on television…

Heffner: But a golf match…

Brill: You know, a whispered voice-over.

Heffner: But a golf match, Steve, is a lot of action, and the voice-over doesn’t disrupt what your audience at home is hearing.

Brill: Well, we’ve…

Heffner: …except the cheers of the crowd.

Brill: …we’ve done a considerable amount of testing with this, and what we have found is the, the action in a trial…

Heffner: Yeah.

Brill: …there are, there are enough lulls in that action, for example, “counsel, approach the bench”, that’s the kind of voice-over I’m talking about. The lawyer who’s questioning the witness turns around and walks back to his desk to get a piece of paper…that’s the kind of voice-over I’m talking about. Let me give you another example during the testing we’ve done to prepare for this…of the kind of witness we would take out. We practiced with a murder trial in New York…

Heffner: Excuse me, “witness that you would take out”?

Brill: That we would not cover. Okay? We practiced with a murder trial in New York, and it was a trial involving a woman who had killed her husband, had stabbed her husband, who was a partner in a big accounting firm and she had claimed as a defense that he was trying to rape her. They were estranged and she had come to his apartment or something. What…now one of the things that the prosecution has to do in any case of murder is they have to prove that somebody’s dead. That’s kind of important in a murder case. So one of the first witnesses was an assistant from the medical examiner’s office in New York who got on the stand and started describing in highly scientific terms, a…that this man had been stabbed and that he was dead. And believe me, it took her an hour and a half to establish that this guy was dead.

Heffner: That was part of the…

Brill: That was part of the…

Heffner: …trial process…

Brill: …that was part of the prosecution. Now I would…now I would say to you that nothing would have been lost by not carrying that witness.

Heffner: Now…

Brill: No one disputed, indeed, it was a murder trial (laughter)…no one disputed that he was still dead…if you will. And that is not the kind of thing we would need to carry. And the testimony was highly medical. Now, if there was some dispute over the cause of death. If there was any kind of a colorable reason that that testimony was really important to the fact issues in the trial, of course we would have carried it.

Heffner: In your opinion, that was important.

Brill: In my opinion. Life, life is based on opinions, and editors do much of what they do based on opinions. The choice of trials is going to be “in our opinion”, what’s an important trial.

Heffner: But now within the trial…

Brill: You say that’s subject to abuse, too.

Heffner: …within a trial…it’s not only going to be the judge’s decision as to what’s important, but as far as the rest of us watching, it’s going to be Steve Brill’s decision.

Brill: Oh, yeah.

Heffner: Is this going to be a commercial operation?

Brill: But remember, I’m not deciding guilt or innocence.

Heffner: Is this going to be a…

Brill: Absolutely.

Heffner: …a commercial…

Brill: Absolutely. Absolutely. We hope it to be highly profitable.

Heffner: But now where do the commercials fit in if we are paying attention to what’s going on in court?

Brill: The same place they fit in in a sports contest or in the Olympics, or something where you don’t know when the breaks come and you take the breaks when you can get them.

Heffner: This analogy is pleasing to you…the golf match…the sports contest and what goes on in trials.

Brill: I see it’s pleasing to you. Good bait for you.

Heffner: Pleasing to me? Good bait for me? It, it, it does bait me. Are you really totally satisfied with that? After all, you are somebody who has studied the law.

Brill: I am…I am…I am totally satisfied with this. I am convinced that ten years from now this will be one of the really important innovations in the legal system. It will have made the legal system better. It will have made the way this country things of the legal system very different. You obviously would prefer that when Americans think of a legal system, they think of Clint Eastwood, they think of J.R. Ewing fixing his divorce on “Dallas”. I think they ought to see the real thing.

Heffner: If I were not as polite a host as I am, I would characterize what you just said with an expletive, but I am…

Brill: But you are police. (Laughter)

Heffner: I am that polite so I won’t. I think that you’re probably right about what will happen. Indeed, I think that you’ve read the piece that I wrote entitled “A Poor Idea Whose, or A Bad Idea Whose Time Has Come”, and I guess you’re correct. The invasion of television has probably brought us to the situation where we will have more and more cameras in the courts. But you’re not even concerned, I gather, Steve, that the participants in the court don’t give their permission. Because if they do give their permission that’s great, that’s fine, but that isn’t your concern.

Brill: Well, I don’t…it’s been, it’s been tried. There are some states where the participants give their permission and some states where they don’t, and it hasn’t made much difference. I will tell you that as a matter of principle, I think that, if you take a civil case, for example, it is completely beyond me why a plaintiff in a civil case ought to have to give his permission for the public to watch their tax dollars in action. Someone goes to court in a civil matter, and says “I want to use our courthouse, Mr. Taxpayer, to get some money, to get a result, but I don’t want you to see it”. You want to be private, don’t go to court.

Heffner: Steve…

Brill: Different issue for criminal cases.

Heffner: Steve, I don’t really mean to cut off your argument…I didn’t even want to discuss cameras in the courts in the first place…I wanted to talk about Trial By Jury…we’ll have to do that some other time. We’ve come to the end. Thanks very much for joining me today…

Brill: Thanks for having me.

Heffner: …Steven Brill… And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as an old friend used to say, “Good night and good luck”.

Continuing production of this series has generously been made possible by grants from: The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Mediators and Richard and Gloria Manney; The Edythe and Dean Dowling Foundation; The New York Times Company Foundation; The Richard Lounsbery Foundation; and, from the corporate community, Mutual of America.