Commentating on commentators

by Laurie Levenson

"Kill the Messenger!" That seemed to be the reaction after the O.J. Simpson trials. After being bombarded by the press and legal commentators, both the public and legal profession questioned the role of legal commentators in reporting on high-profile cases. Some criticisms were valid.

For example, the public had a right to question the qualifications of those commenting on the cases. Had the commentator ever been in a courtroom? Had that person ever tried a case? Had he or she ever actually attended the Simpson trial? What was our motivation?

Likewise, I can understand why people were troubled by the type of commentary provided. Soundbites and scorecarding are not a satisfactory means of providing analysis. Commenta-tors are too often used only to add flash to a news story. In-depth analysis is rarely requested.

In retrospect, I believe there were many legitimate criticisms of legal commentary during the recent high-profile cases. On the other hand, I think that the reality is that legal commentary is not going to disappear. "Trials of the Century" continue to proliferate in our state and nation.

Instead of wishing legal commentators out of existence, it might be best to consider ways we can improve commentary. I have a few suggestions:

Adopt a voluntary code of ethics for commentators.

Professor Erwin Chemerinsky of the USC Law Center and I have proposed such a code under which a commentator would have to be competent to comment on a case. Competency would include both legal and practice experience, depending on the type of commentary to be provided. Additionally, the commentator would be required to disclose any conflicts that could affect his or her commentary.

A voluntary code of ethics might also address the need for rules of confidentiality for commentators and the duty to disclose if the commentator observes illegal or unethical behavior.

Because of First Amendment concerns, the code would most likely have to be voluntary. However, even a voluntary code can give guidance for those who are looking to provide the most effective commentary possible.

Assess your motives for providing commentary.

Much of the criticism leveled at commentators challenges the expert's motives for providing commentary. If one is doing it for self-promotion, it will be obvious and subject to criticism.

Don't speculate.

There is a difference between a lawyer and a clairvoyant. Too often, lawyers get wrapped up in trying to predict what a judge or jury will do. The net result is that the commentator ends up prejudging the case or creating false public perceptions or expectations.

In many ways, we are in the Golden Age of Legal Commentary. Our goal should be to improve it. At its best, it leads to a public that understands the difference between the burden of proof in a civil and criminal case, who questions whether police should be hopping fences to conduct searches, who appreciates the difficult job that judge, jury and counsel perform in a trial.

Good commentary can improve our judicial system, even if it criticizes it. Bad commentary can lead to cynicism that may not just kill the messenger, but also tamper with the legal system.

Laurie L. Levenson is associate dean for academic affairs at Loyola Law School in Los Angeles.