2006 Fall, Pg. 72. Commentary: Objects Are Closer Than They Appear.

AuthorBy Attorney Stephen L. Tober

New Hampshire Bar Journal


2006 Fall, Pg. 72.

Commentary: Objects Are Closer Than They Appear

New Hampshire Bar Journal Fall 2006, Volume 47, No. 3 Taxes, Trusts, Judicial Review, and more. . . Commentary: Objects Are Closer Than They Appear By Attorney Stephen L. Tober The following is an edited version of a speech delivered at the Syracuse University College of Law on Oct. 19, 2006.

I stand before you today as a graduate of the Syracuse University College of Law, separated from this spot by the passage of 32 years, but physically by the distance of only three feet. You see, I received my law degree on this stage, in Hendricks Chapel, back in May of 1974. It is a moment I will never forget, just as I know that you will never forget yours, which will be here sooner than you think.

The graduation speaker that day was George McGovern, the distinguished senator from South Dakota. It was a convulsive time in our nation's history, with a failed war and riots and battles to establish personal freedoms. To put that day in perspective, we were graduating 18 months after Senator McGovern had lost the presidential election to Richard Nixon by 502 electoral votes, and just three months before President Nixon would resign in disgrace. As newly minted lawyers we were at a crossroads in Hendricks Chapel on that graduation day back then.

It was a crossroads in our personal lives, as we all prepared to enter the world with our law degrees in hand. And it was a crossroads on a much larger scale, as the nation prepared to enter a new generation of challenges to the rule of law.

I bring this up because I began my practice - as most of my colleagues did - in the aftermath of Watergate. When we talk about "Law in the Media Mirror," and the impact that the mass media can have on the American legal system, no one modern event looms larger than the events and forces we call Watergate. And frankly, things have never been the same since.

In those chronicled events, lawyers were everywhere. For every lawyer who was complicit in White House crimes back then, there were a hundred-fold more in the Congress and on the courts and in the legal system who held them accountable.

And the media was everywhere, uncovering every fact and nuance and lead for a public consumed with interest, fear, and hope.

To be clear, these convocation remarks are not about Watergate, but rather about the legal world we have inherited from Watergate.

Indeed, law and process and ethics and journalism and news all met at those crossroads back then, and the confluence that resulted has shaped the American legal system we have today. So, with that personal starting point in mind, let's begin.

"Law in the Media Mirror: Objects are Closer than they Appear."

I am going to use this topic today to discuss with you two or three related issues, all under one heading - "Media Mirror." I give you that theme because it ties together so much of what I have experienced over the course of my career, dealing with challenges and opportunities that sometimes wind up in the reflection of media coverage.

The phrase "Objects are closer than they appear" comes from, of course, the lower part of your car's right-view mirror. It provides a good analogy for just about everything I will talk about today. When it comes to evaluating the impact of the media on the American legal system, consider this about your right-view mirror:

There is often some distortion; and

We look at the image so often, we don't even notice it's there anymore. We just take it for granted.

The simple fact is that in today's universe of instant and global communication, where the "world is flat" and imagination is unfettered, we sometimes accept a media that exceeds traditional notions of responsible journalism. Coverage and commentary that are seductive and distorted get our attention, especially when they are unfairly magnified. And it doesn't take us very long to take their presence for granted.

Blogs are everywhere. Cable television dominates. Bill O'Reilly may in fact be the source for more daily news for the American public than Katie Couric. And lawyers, judges, and the American legal system are not immune. From "Perry Mason" to "LA Law" to "Nancy Grace," we have started to take media interest in and exaggeration of what we do for granted, as a given, and that any coverage is good coverage. If they spell our names correctly, that's good enough.

Well, it's not. Distortion to sell a story is still distortion, even if it is quickly becoming a fact-of-life. Yet that is the present state of the "media mirror," and that is the world you as lawyers of the future must contend with.

As a lawyer today in a general civil practice in New Hampshire, I have had more than my share of matters seen through distortion, through the right-view mirror. Perhaps it is New Hampshire itself, where we take our politics retail and our cases as we find them.

Whatever it is - from bar leadership to a state-wide impeachment crisis to nominations to the United States Supreme Court - I have had a generous opportunity to be part of our American legal system, and to see up-close and personal the powerful impact of the media on legal events, and on legal rights and obligations.

Oftentimes the impact is salutary, assuring that open government is truly open, and that minority rights are heard, and that the truth will out. But sometimes the impact is less so, giving voice to the few who would take advantage of the many, or challenging those who cannot defend themselves, or causing cynicism where none is deserved.

This is not meant to be a scorching criticism of the media. They have an incredibly important role to fill in our society, and in our "rule of law." And they have their own disciplines and codes of conduct to abide. It is meant, instead, as an observation of how the media has become an ever-present force in how we are perceived, and how we operate, as lawyers and judges in the American system of justice. If it can reach a small law firm in Portsmouth, New Hampshire, it can reach anywhere.

I had the good fortune to chair the ABA's Standing Committee on Federal Judiciary last year, a year that turned out to be a historic one. It has been some 35 years since there were two vacancies on the Supreme Court to be filled by two new justices at essentially the same time, and there have been 24 previous chairs of the ABA Committee before the wheel landed on my name. There is no question that I was at the right place at the right time.


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