Infomercials and Legal Writing

One of Oscar Wilde’s aphorisms is “There is only one thing worse than being talked about and that is NOT being talked about.” This is sometimes paraphrased as “there is no such thing as bad publicity.” The “I don’t care what they say about me as long as they spell my name right” statement is apocryphally attributed to P.T. Barnum.

Writing for law and other professional magazines, and law tabloids such as The Lawyers Weekly or the Law Times, is a not-expensive (at least to the writer) way of getting publicity and, perhaps, of educating the readership. I have no idea how effective it is on either score. However, the errors that I’ve seen in some of the articles I’ve read over the past few years, just in in my areas of expertise (and in my view the situation is getting worse), suggest to me that accuracy of the content is not foremost in the writer’s mind.

But, then, perhaps I’m too demanding in expecting all lawyers, or even most lawyers, to care (enough) about the accuracy of what they write for trade publications when they’re not getting paid for the piece, where it’s as likely as not that only another expert in the area will spot the error, and where they’re not giving advice upon which they can be sued. Of course, the publications care, but we can’t expect them to police the content of articles the way refereed journals do.

Addendum: June 12, 2010

This link will permit you to download a PDF file that contains my correspondence with The Lawyers Weekly about the flawed article I discuss in the comments, what I asked TLW to publish, and a longer piece providing more detail about the issues the published article got wrong, and related issues. DC

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Comments

  1. I sent a complaint to the Lawyers Weekly to that effect a couple of years ago, and never got a response from them. I guess they are not as concerned!

  2. Well, in the modern world, there is no such thing as bad publicity.

  3. Dr. Mr. Cheifitz,
    For 2 decades – published law – Thomson, CCH. LexisNexis. No longer in law, but remain passionate. I am not a lawyer, but an Editor, Publisher. I am curious – if an article was being drafted with regard to an opinion, quotation, or feature – was the article not vetted with you prior to publishing? Or – are you suggesting that that articles were published with permission of those interviewed / highlighted / quoted etc.? I am curious as to whether your concern lies with the publisher or with those interviewed?
    Either way – publishers have a duty to ensure accuracy. Perhaps peer review should be broadened to include newspapers and journals from commercial publishers – especially with regard to law.

    doc – law is not about publicity. It can be – a very “bad thing”. This is not pop culture.

  4. David Cheifetz

    I referred to articles which contain erroneous statements about what the law is. I did not refer to anything I’ve ever submitted.

    I do not know the extent of vetting tabloids such as the Law Times or The Lawyers Weekly do of the accuracy of the discussions of law in the articles they publish. I expect that, at a minimum, they (correctly) rely on the person(s) who submit the piece to set out the law correctly and to have done his or her own vetting. Beyond that? Well … I think it’s accurate to suspect there wasn’t much, in the partiuclar case, when the publication contains a piece that begins with a sentence in the form of “every reported case in the country that considered issue X refers to case Y”.

    We’ll have to agree to disagree about how much “about publicity” the practice of law has become. It was entirely intentional that I put the message up so that it would first appear beside the column on “marketing” which begins with “Are We Big Enough to Need a Marketing Department?”

    P.S.

    Even a research-ability-challenged articling student of the sort that has been recently referred to in discussions on this site should be able to quickly prove the falseness of the statement of the form I quoted.

  5. On a related note, I am particularly distressed by the tendency of law students to cite publications like “Lawyers Weekly” as if they were scholarly journals. I cringe even to think about it.

  6. David Cheifetz

    An update, for those who care.

    I offered the Lawyers Weekly a comment of about 1400 words. (Truth is that a complete explanation of why the article is so wrong takes about 5000 words). The reply was that they’d publish something so long as it was no more than about 450 words. I offered to reduce the size to about 1100 words. Anything less means cuts in substance, not just style. The Lawyers Weekly declined so, so did I.

    You should draw your own conclusions about the paper’s commitment to accuracy in areas that don’t expose it to libel action. (Mine were formed long ago, for other reasons.) Still, you’d think the paper would care more where the error was in a section ostensibly intended to provide accurate continuing education to the profession. Or, perhaps I’m wrong about that intention.

    Oh yes – in my exchange with the TLW, I reminded it of the apocryphal exchange between Mozart and Emperor Franz Josef. (It’s in the movie, for anyone who cares, though you can look it up on Wikipedia, too.)

    DC

  7. Since I did look it up, I thought I’d make it easier for others: Amadeus.

  8. Yup, that’s the one. I figured that if the TLW was going to be ridiculous (as I expected it to be) I’d subtly question its competence.

  9. Still no change in the Lawyers Weekly position. Maybe the PtB are thinking. I wonder if it would publish something like this?

    In your May 28 edition, on the first page of a “Focus section”, you published an article [title, page] about an issue of Canadian tort law, and the consequences of a Supreme Court of Canada decision, which contains a number of substantial errors. The first error is in the first sentence. After that, the article continues to misstate the law. The article is written by an Ontario lawyer. It would be wrong even if were just about the situation in Ontario. It is even more wrong as it purports to be about the law outside of Ontario, too.

    I do not discuss the errors as you have advised me that I have only about 450 words to make my point. Unfortunately, 450 words is not enough to adequately deal with the errors. Attempting to do so in that brief a compass is likely to create problems analogous to those created by the judges of the Supreme Court in Resurfice Inc. v. Hanke, 2007 SCC 7. In Resurfice, after opting to go on “a frolic of its own” and comment on an issue that did not arise out of the facts of the case under appeal, the Court then opted for brevity over thoroughness. In doing so, on the basis that it was “suffic[ient] … to simply the general principles that emerge out of the cases”, the Court not only ignored recent, significant, decisions of the House of Lords, but contradicted, ignored, and misstated, its own prior (seemingly still in force)jurisprudence.

    I offered you a piece of about 1400 words and advised you that I could reduce it to about 1100 words. That piece barely scrapes the “surface”. A better review would take about 5000 words. You declined. I am forced to conclude that The Lawyers Weekly commitment to accuracy, at least in areas where inaccuracy will not expose it to a libel action, is sorely deficient. Those interested in learning why the article is not accurate can read the 1400 word piece at [location]. I have written, elsewhere, extensively, about the problems in the Resurfice discussion of a factual causation. I maintained an extensive online analysis, current through mid-2008. It is still substantially accurate. It is very long, but there is a very detailed table of contents which is hyperlinked to the sections. A succinct enough discussion of some of the issues was published as Cheifetz, “Tales of Sound and Fury: Factual Causation in Tort after Resurfice,” in 2008 LSUC Special Lectures (Irwin Law, 2009), c. 8.

    Of course, I could really have some fun and send the 1400 word piece to the Law Times. The LT publisher is Canada Law Book. Coincidentally, CLB published my text (years ago) and publishes the Advocates’ Quarterly which contains almost all of my published work since. .

  10. Nothing new on the Lawyers Weekly front. I think it’s safe to conclude that accuracy isn’t always “job one” and it’s not going to change its position.

    We should have a contest for a new caption for the tabloid. (2nd pize would be a subscription to it. 1st would be to a competitor.)

    Here’s some:

    Rely on us and prove Barnum is right.
    Close counts in law reporting, too.
    Publishing means almost never having to say you’re sorry.
    Where our Focus is sometimes out.
    Where truth is relative to the number of words required.
    As accurate as a Pentium 1.
    There are better tests than rabbits.
    Where accuracy is like an onion.
    Where Dewey defeated Truman.
    We strive for truth and accuracy, just like ex-President Cinton and still-current PM Harper.
    We rely on our contributors, just like Stella.

  11. For those who want to know what the guffuffle is about, I have added an addendum to the original message. The addendum has a link to a PDF document containing my corresponence with TLW and material explaining why The LW article is wrong. The file has a link for The LW article, too.