UNDERDOG - JON KATZ, MARYLAND & VIRGINIA Criminal Defense Lawyer - Jon Katz in the News

Avvogatto in AVVO.

nospam@example.com (Jon Katz) — Wed, 16 Jul 2008 00:00:00 -0400

Image from Library of Congress's website.

My tireless blogging colleague Scott Greenfield has written repeatedly about (partly) consumer-driven lawyer ranking site AVVO (whose spelling can mistakenly be seen as "awo", depending on how closely one's computer screen places the vees in the word).

Having learned about AVVO from Scott's site, I answered the site's information questionnaire. Eventually, after my questionnaire information and a few client reviews, I was given a ranking of 9.4 out of ten, or "superb". Although I am happy to receive such recognition, the rankings system does not sound scientific.

On July 15, a Maryland Daily Record reporter called me for an article that appeared today, curious about her assertion that "Searching for a Maryland lawyer brings up Katz near the top of the list." If you do not want to be misquoted or distorted out of context, do not speak with a journalist; knowing this frequent risk, I still ordinarily speak freely with journalists about matters not involving my clients, with possibly the most stark example of unprofessional interviewing of me coming form the insensitivity of a reporter (and/or his news organization) engaging in what I thought was sensationalism by telling me on camera rather than off that Deborah Palfrey had killed herself, and then seeking comment -- without ever pausing the camera -- when I had nothing to do with the case.

The reporter's somewhat minor distortion in this AVVO article is in writing that I have "suggested that clients write positive reviews" on AVVO. In reality, I was answering her question about how people ended up writing the handful of AVVO reviews about me, by saying that in the past when clients thanked me deeply for my service, I would offer for them the option of sending me an anonymous testimonial for me to post to our website if they wished, and now add the option to post an AVVO review. The AVVO review is a convenient way for a client to eliminate me as the middleman in getting feedback posted.

In any event, the article confirms that AVVO's name comes from avvocato, which is the Italian word for lawyer. Curiously, whether or not intentionally, the French word for lawyer, avocat, also is the word for avocado, which is one of my favorite foods. Early on when my law partner Jay Marks and I hosted a call-in Spanish radio show "Legally Speaking: Where your cause is our cause" I got the moniker "gato" for cat/Katz, which then led to the less frequent moniker of "abogato", blending abogado for lawyer and gato for cat. The equivalent in Italian would be avvogatto.

Finishing on this tangential discussion of the word lawyer, a very persuasive, dedicated, and intelligent longtime Amnesty International activist who spoke at the invitation of my law school's Amnesty International chapter started out by saying that the law is an ass, because, in his view, it is slow and plodding to achieve beneficial change. He then asked "If the law is an ass, what are lawyers?" I did not get around to asking him if he meant assh--les, but he had me in stitches nevertheless, even though I thought such a view was hyperbole taken from frustration with the legions of lawyers who to this day focus heavily on money and little on fairness and justice. (Only a few years ago, a colleague who includes criminal defense in his practice very seriously asked if I agreed with his view that the law practice is all about making money; I strenuously disagree with him.) My laughter in response to the Amnesty International activist came in the context of having expected that part of my law studies would involve learning the language of the oppressive enemy, so that I could more successfully battle that enemy.

In any event, AVVO probably presents serious challenges to the once predominant Martindale-Hubbell legal directory, which is driven by rankings purportedly based on peer reviews, and expanded listings arising from payments for the inclusion. (Disclaimer: Our firm pays for such a listing.)Then again, the Internet has created substantial competition throughout the for-profit sector, including shaking the previous predominance of yellow page directories. Jon Katz

Reporters and misquotes should not be like peas in a pod.

nospam@example.com (Jon Katz) — Fri, 04 Apr 2008 00:10:00 -0400

Image from Library of Congress's website.

As I have said previously, journalists are fallible humans, so lawyers should resist the temptation to treat them as confidants.

One reason to beware of talking with journalists about a client's case is the risk of being misquoted, whether by direct misquote (e.g., the reporter writing that the lawyer said his "client is guilty" when actually the lawyer said his "client is not guilty," or by being quoted out of context (e.g., where the reporter quotes the lawyer as saying "All the suspects are guilty," where the lawyer actually says "All the suspects are guilty except for my client."

Sometimes a reporter misquotes a lawyer based on what the lawyer says in court, rather than on the basis of an interview, which means that merely declining an on-the-record interview does not automatically protect against misquotes. As a for instance, yesterday I was in court for the Westboro Baptist Church case, seeking a stay of the enforcement of the $5 million judgment pending the outcome of my clients' pending appeal. The judge ended up granting the motion as to my clients the Westboro Baptist Church and its pastor Fred Phelps, Sr., after I agreed for a lien to be placed on their respective real property, whereby my clients will retain the right to contest the enforcement of the lien on legal grounds should the defendants lose on appeal. How, then, did a Daily Record reporter (who spoke with me after the hearing, which conversation I kept off the record) get this result so wrong by erroneously reporting that I consented to freeze the church's assets? Perhaps he was listening to the J. Geils band earlier in the morning, and got confused.

I found the article with this misquote on google news, and left a voice mail with the reporter asking him to correct the error. I confirmed that, the First Amendment zealot that I am, it will remain but a request.

If this is the worst misquote that I ever experience, I will be fortunate. My favorite conceptual artist, Joseph Kosuth, had a riveting exhibit in the early 1990's entitled "A Play: The Herald Tribune, Kafka and a Quote." The foregoing quote does seem Kafkaesque. Jon Katz.

ADDENDUM: Later in the day on April 4, the Daily Record met my request to fix this misquote, by changing it online to saying that the judge "eventually obtained consent from Katz, of Marks & Katz LLC in Silver Spring, for the liens, pending appeal." I don't know whether the print version of the newspaper will carry a correction notice.

Who is Maryland's 2007 legal newsmaker?

nospam@example.com (Jon Katz) — Wed, 23 Jan 2008 00:00:00 -0500

Image from Library of Congress's website.

Recently I learned that a legal affairs writer suggested, on the Maryland Daily Record's blog, that I might have been among Maryland's top 2007 legal newsmakers in terms of having "the greatest impact — positive or negative — on Maryland law or the Maryland legal community", for my defense of the First Amendment in Snyder v. Phelps, et al. In this litigation, and as detailed here, I defended the Westboro Baptist Church and its pastor against counts of defamation (count dismissed on summary judgment), intentional infliction of emotional distress and invasion of privacy for church members' very strong messages (quite the understatement) while picketing on a street in Westminster, Maryland, before the funeral proceedings for a soldier killed in Iraq.

I did not know how much of a grain of salt to take with the suggestion that I might be one of Maryland's top 2007 legal newsmakers. On the one hand, the rigor of the list is brought into question by the writer's inclusion of Paul Minnich alongside my name, even though it was two of his co-counsel who were the only lawyers at trial for the plaintiff and at the depositions; perhaps mistaken identity took hold, possibly all the more from the parties having been subjected to a gag order throughout the trial. On the other hand, I am more than happy for the recognition, to the extent that it recognizes my ongoing fight for robust First Amendment rights, so that perhaps others will be influenced to join the same fight. The irony is not lost on me that during my fight for the First Amendment in this case, all lawyers were gagged from speaking with the press about the case, until after the jury returned its verdict. Jon Katz.

ADDENDUM - Pending before the Maryland federal trial court in the Westboro Baptist case are timely-filed post-trial defense motions including a motion to reduce the jury verdict, and a motion to stay the judgment pending appeal.

The camera never blinks.

nospam@example.com (Jon Katz) — Fri, 18 Jan 2008 00:00:00 -0500

As much as I worship at the altar of the First Amendment, that does not automatically justify worshipping journalists. (Image from the public domain).

Last year, I spoke on a criminal continuing legal education panel where a lawyer who had a high-profile case said "No publicity is bad publicity."

Think again. Journalists are humans, and should not be treated as confidants; fortunately, with some reporters, one's guard does not need to be skyhigh, but caution needs to be used with unknown reporters, even when they come from exalted news organizations. Over time, I have experienced the real value of never hesitating to say with a smile to journalists: "Off the record", "I will not be commenting on that right now, because...", "You should seek a different interviewee, because my opinion does not match the viewpoint you seek," and "You appear to be trying to get an inaccurate soundbite from me through seeking a yes or no answer to a convoluted question."

Substantial self control often is needed to decline the publicity (not all publicity is good publicity, including for one's client) of being on television or radio, or in print. In dealing with the press, less is more; it is wiser to selectively choose which interviews to accept, even if no interview requests will ever follow the declined interview invitation.

How does one keep “no comment” off the record? Once a journalist described me on television as having "failed to return phone calls" on the story, even though the two phone calls were virtually back-to-back just a few hours before the story aired on television. I have had a print journalist agree to keep a conversation off the record, but then write that he asked me a particular question that I declined to answer. One morning, very irritated at a judge’s procedural ruling and leaving court to meet my secretary on a time-sensitive matter during a court recess, I overlooked how much the camera never blinks, as I firmly but diplomatically (I hope – the segment aired) asked the reporter waiting at the courthouse steps to step back, because he was getting right into my face when I was on my way to a meeting, with my client alongside me. The better approach would have been for me to have prepared my client for this possibility, to have greeted the reporter, and to have more smoothly told him I would love to talk, that I had an appointment to get to, and that I would let him know if I would have any comment later on if he would provide me his phone number. Also, for the rest of the day, I took a side exit from the courthouse.

What to do when reaching a journalist's voice mail or email with the intention of making no comment, but to at least give the courtesy of showing the reporter is not being blown off? One reporter told me by email that "off the record" is a request that a reporter need not honor unless the reporter affirmatively says the request is being honored. Consequently, when I call back a reporter and reach his or her voice mail or email, if I want my reply off the record, I might say: "Please keep this reply off the record. If you do not, I do not know how I will be able to leave responsive voice mails and emails to journalists in the future. When I say off the record, that includes not even disclosing that I responded and would not comment."

A reporter from a prominent legal publication once emailed back that he would honor my off-the-record request, which included the latter emailed verbiage. However, over one month later, the reporter told me that his colleagues and publication's ethics committee said he could and must say I declined to comment. The reporter explained that balanced reporting requires letting readers know which parties involved in the story were contacted, and whether they did or did not reply (but what if the phone call is made to the party just an hour before the story runs? -- I never see articles give that context) or whether they would not comment.

I reminded the reporter that he long ago agreed to honor my off-the-record request. The reporter still insisted he would say I declined to comment. Then I took a page from policereportpassivevoicespeak, and suggested he instead say something to the effect that: "Efforts to obtain comment from Jon Katz were unsuccessful." The reporter agreed. Such passive-voice verbiage may not get high marks from an English teacher, but suits me just fine. Jon Katz.

Controversial (in New Jersey, at least) Super Lawyers adds Jon Katz to its Maryland criminal defense lawyers list.

nospam@example.com (Jon Katz) — Thu, 03 Jan 2008 00:30:00 -0500

This posting follows up on my November 30, 2007, discussion of the highly subjective nature of lawyer rankings on the one hand, but my welcoming recognition in rankings and the media, nevertheless. The Washington, D.C., area, is an incredibly competitive market for providing legal services. Such free publicity helps us avoid spending much on marketing, and to focus our time on serving our clients and our revenue on quality support staff.

In that regard, Super Lawyers recently added me to its Maryland criminal defense attorneys list. Fewer than fifty other Maryland criminal defense lawyers also are on the list, plus seventeen more for drunk driving and white collar criminal defense (which I also handle). Super Lawyers seeks advertising revenue from its ranked lawyers for display ads; our firm has never paid Super Lawyers a dime, so we have no display ad.

Concerning the Maryland listing, Super Lawyers explains: "Maryland Super Lawyers is published in January in a special advertising section in Baltimore magazine, which reaches 194,000 readers, and in Maryland Super Lawyers magazine, which is delivered to more than 25,000 readers, including Maryland lawyers, the lead corporate counsel of Russell 3000 companies and the ABA-approved law school libraries. Super Lawyers names the top 5 percent of Maryland lawyers, as chosen by their peers and through the independent research of Law & Politics. 2007 Maryland Super Lawyers based on the survey of more than 21,000 attorneys across the state."

Super Lawyers' selection process does not sound very rigorous. Scott at Simple Justice heavily pans the Super Lawyers list and the AVVO list.

Flying in the face of the First Amendment, in mid-2006, the Committee on Attorney Advertising appointed by the New Jersey Supreme Court, concluded in its Advertising Opinion 39 that: "[A]dvertisements describing attorneys as 'Super Lawyers,' 'Best Lawyers in America,' or similar comparative titles, violate the prohibition against advertisements that are inherently comparative in nature, RPC [Rule of Professional Conduct] 7.1(a)(3), or that are likely to create an unjustified expectation about results, RPC 7.1(a)(2)."

The latest developments that I could find on this New Jersey matter are from mid-2007, as follows in reverse chronological order. If you have more recent information, please send it my way:

- Law.com provided an update on the then-pending court controversy on June 19, 2007.

- The Federal Trade Commission filed an amicus/friend-of-the-court brief opposing Opinion 39, and providing a useful chart on how the different states treat comparative lawyer advertising. This is particularly noteworthy when considering that the FTC is not always a friend of the First Amendment, including its active role to regulate cigarette advertisements (with Congress banning cigarette television commercials in 1970).

- Curiously, an official May 2007 announcement from the New Jersey State Bar Association mentioned that its new treasurer had been included in the Super Lawyers list.

- In January 2007, the Maryland Daily Record reported that the large Venable law firm decided not to be included in that year's Maryland Super Lawyers list: "The [New Jersey] ethics panel decision is, of course, not binding on lawyers in other states, but Venable decided it 'should be given some consideration,' firm counsel G. Stewart Webb Jr. said. New Jersey's lawyer advertising rules are based on the model rules followed by other states, he pointed out. 'We basically decided prudence dictated we should not participate in the survey while the issues were still out there,' Webb said." Even though a final court decision on New Jersey Advertising Opinion 39 still seems pending, ten months later, on November 29, 2007, Venable issued a press release entitled "14 Venable Lawyers Named to Washingtonian Magazine’s 2007 List of D.C.-Area’s Top Attorneys," which is a list that has included me twice in a row since 2004. It does not appear that touting a Washingtonian top lawyer listing would be any more permissible under Opinion 39 than touting a Super Lawyer or Best Lawyer listing. Is this a matter of changed policy at Venable, or a case of one hand not following or controlling what the other hand is doing?

- Super Lawyers' online position on the matter is here.

Commentary and information from 2006 on New Jersey Advertising Opinion 39 follows, in chronological order:

- Law.com provided extensive coverage of the story on July 25, 2006.

- The Associated Press reported in August 2006 that the New Jersey Supreme Court stayed Advertising Opinion 39 pending litigation over the matter.

- On August 1, 2006, Law.com provided information about the lawyers hired by Super Lawyers and the Best Lawyers directories against Advertising Opinion 39.

- On September 15, 2006, the New York Times covered the story.

- On November 17, 2006, Law.com reported on the New Jersey Attorney General's backing Opinion 39, but also supporting flexibility on lawyer advertising.

So it goes. Jon Katz.

Washingtonian Magazine renews Jon Katz's Top Lawyers ranking.

nospam@example.com (Jon Katz) — Fri, 30 Nov 2007 00:00:00 -0500

Washingtonian Magazine has renewed my Top Lawyers ranking in its December 2007 issue at page 145. When Washingtonian last published such a ranking, in 2004, I was included for the first time in that listing.

Washingtonian calls the list "800 Top Lawyers" with the following description: "Here are Washington's best -- the top 1 percent -- in 26 legal specialities." Washingtonian further describes the list: "This is the fifth time that The Washingtonian has compiled a list of top lawyers. It is created primarily by peer recommendations. We asked, by telephone and e-mail, some 1,000 attorneys who (excluding themselves and members of their firms) the top practitioners in their fields are and whom they would hire to represent them in a range of areas."

Why should I even be speaking of this ranking? The magazine admits it is subjective. On the other hand, I like that a magazine as mainstream and widely-read as the Washingtonian gives exposure to such lawyers as myself who focus on doing good with the law, rather than on pleasing the mainstream.

Do I like the publicity that this ranking brings our firm? Certainly, just as I also like putting my AV-rating and media appearances on the back of my business card. The Washington, D.C., area, is an incredibly competitive market for providing legal services. Such free publicity helps us avoid spending much on marketing, and to focus our time on serving our clients and our revenue on quality support staff. Of course, I get a kick from media exposure, always tempering it with the knowledge that silence is sometimes the best substantive response to the media. Jon Katz.

From here, the Westboro Baptist Church case will be appealed.

nospam@example.com (Jon Katz) — Thu, 01 Nov 2007 01:00:00 -0400

First Amendment and the rest of the Bill of Rights. (From the public domain.)

From October 22 to October 31, my life was consumed with my defense of the Westboro Baptist Church (WBC) and its pastor before a Maryland federal jury against charges of intentional infliction of emotional distress and intrusion upon seclusion. Each day, I drove to the heart of Baltimore for this trial, not once getting the time to enjoy the city except for the last day, during lunch while the jury deliberated.

Only after the jury issued its verdict on October 31 did the court lift its gag order preventing the parties from communicating with the media, whose members daily covered the trial. A general overview of the case is here from the Baltimore Sun.

The case arises from the picketing and related activities of WBC members concerning a soldier's funeral. I very much disagree with WBC's views, including its decision to picket soldiers' funerals. Of course, I believe strongly in responding to reviled speech with counterspeech.

In addition to the above-listed emotional distress and intrusion upon seclusion charges, the lawsuit filed by the soldier's father alleged defamation, which the court dismissed the week before trial commenced. Committed to robust First Amendment protection, I accepted the role of defending WBC and its pastor in this lawsuit, while departing strongly with their message and actions.

Having declined to dismiss the remainder of the lawsuit, the judge sent the case to the jury, which on October 31 returned a total verdict of $2.9 million in compensatory damages and $8 million in punitive damages. These are huge numbers, to say the least.

This case stirs people's passions. I have heard from people taking issue with my defending WBC and its pastor in this case, and from others agreeing with my standing up for First Amendment rights, which I do again and again for people from across the political spectrum, believing that picking and choosing within the political spectrum is disingenuous to upholding the First Amendment. I went to law school idealistic about using my law degree for civil liberties, learned during law school that First Amendment rights are suppressed all the time, and feel heartened about being able to light a candle rather than to curse the darkness, through my First Amendment defense work.

Protecting free expression often requires defending dark and/or controversial views and actions. It includes defending against cross burning statutes, defending the right of neo-nazis to march in Skokie, and defending the rights of the adult entertainment industry, As the American Civil Liberties Union's website proclaims: "It is easy to defend freedom of speech when the message is something many people find at least reasonable. But the defense of freedom of speech is most critical when the message is one most people find repulsive. That was true when the Nazis marched in Skokie. It remains true today."

This WBC case will now proceed to the United States Court of Appeals for the Fourth Circuit, where the First Amendment issues will be argued and reviewed. Jon Katz.

ADDENDUM II/II - November 7, 2007. A Google search reveals many views supportive of the jury's verdict. The webpages opposing or seriouly questioning the verdict on First Amendment grounds are much fewer and take longer to find, so I list some of them here: Herald-Argus, Press-Dakotan, News Journal, News Tribune, Legal Blog Watch, Renew America, Debate Nation, and Daily Irrelevant,

ADDENDUM I/II - November 4, 2007. Several people have been emailing me about this case, all disagreeing with the defendants' views and actions, some cheering the verdict, some taking exception (and sometimes strong exception) to my representing Westboro Baptist Church and its pastor, and some supporting my standing up for the defendants' Constitutional rights.

My responses to those expressing dissent about my representation include, but are not limited to, the following:

"As you apparently recognize, I do not share the Westboro Baptist Church's views. At the same time, I believe strongly in having their speaking, picketing, and preaching activities protected by the First Amendment, lest First Amendment protection not be extended to speech that I hold dear.

"I have been very much influenced by the American Civil Liberties Union to represent such clients as the Westboro Baptist Church. The ACLU lost many members when it supported the right of nazis to march down the streets of Skokie, IL, through a neighborhood with many Jewish people, including Holocaust survivors. I was in high school at the time, and it took some time for me to understand and support that position. Ultimately, the ACLU enjoyed a surge in membership, including with the PATRIOT Act-related substantial curbing of civil liberties.

"More behind my decision to defend this case is here http://markskatz.com/justiceblog/archives/821-From-here,-the-Westboro-Baptist-Church-case-will-be-appealed..html .

"As to where the picketers stood, please see the news article here. It was conceded at trial that my clients never entered the funeral building. The testimony of law enforcement and church members was that they were on county-owned property, not on church property. Defense testimony showed that the picketing took place over one thousand feet from the building where the funeral took place."

Appearing on local Fox News July 31 in the morning.

nospam@example.com (Jon Katz) — Mon, 30 Jul 2007 08:00:00 -0400

Camera image from U.S. Geological Survey website.

Tomorrow morning, July 31, FoxNews channel 5 in Washington, DC (not national FoxNews) will interview me about the developments in Michael Vicks's dogfighting prosecution, whose case I discuss here. The interview will last up to five minutes, will start no earlier than 7:00 a.m., and will end no later than 8:00 a.m.

Only using the television to watch DVD's, I have no cable and no decent broadcast television connection. If you're in the Washington, DC, area, and think I am worthy, please feel free to set your VHS recorder to tape the interview. It goes without saying that I will be deepl;y grateful for such a kindness.

Have a great week. Jon Katz.

Talking about DC madam case and Michael Vick.

nospam@example.com (Jon Katz) — Fri, 20 Jul 2007 06:10:00 -0400

Photo from website of U.S. District Court (W.D. Mi.).

Two days ago, the New Orleans Times-Picayune called to interview me about the recent disclosure by alleged D.C. Madam Deborah Jean Palfrey -- who I think is gravely mistaken to be talking publicly about her case, let alone in such depth -- that she expects to have Louisiana Senator David Vitter testify at her trial. The resulting article and my quote are here.

I have written many times that prostitution should not be criminalized, particularly when the police and prosecutors have plenty to do with more serious crime, and particularly when police and prosecutors need to spend more time evaluating their cases so that they do not prosecute the wrong people. I have also argued to legalize marijuana and to heavily decriminalize other drugs, not only for civil liberties reasons, but also to eliminate an overgrown and overly unjust criminal justice system that runs rampant on the right against unreasonable search and seizure, the right to obtain a just bond, the right to receive a fair santence, and the list goes on.

As revealed by the online filings in Ms. Palfrey's federal case in the District of Columbia (available through the PACER website), her assets have been frozen pending efforts to forfeit her property as alleged gains from alleged prostitution crimes. Perhaps frustration over her frozen assets influences her decision to speak out so publicly about her pending case. Jon Katz.

ADDENDUM 1: Yesterday, ESPN.com interviewed me about the prosecution in Richmond, Virginia, federal court for alleged dogfighting crimes against Atlanta Falcons star Michael Vick. I anticipate that the story will include quotes from me about the grand jury process in the case. I will post a link to the story after it is uploaded.

ADDENDUM 2: The ESPN interview referenced in Addendum 2 above culminated in this opinion piece that includes quotes from me.

Discussed on YouTube

nospam@example.com (Jon Katz) — Thu, 12 Jul 2007 06:00:00 -0400

Computer hard drive. (Image from Pacific Northwest Laboratory's website).

Vlogger Paula Gloria found me recently through my link to an interview with Bhagavan Das and her.

Overlapping my blogging today about Bhagavan Das, Paula and I have recently traded a couple of e-mails about Bhagavan, including how I learned about him through Ram Dass's Be Here Now. She sent me this link to an upcoming broadcast that includes Paula's brief discussion (starting at minute four) about me and my detailed personal links page, and her intrigue that all this comes from a lawyer.

By now, our website and blog are very extensive and in depth (with less depth and breadth to my personal website), through an accumulation of over seven years of work. Jon Katz.

CT Post update: Here is our published photo.

nospam@example.com (Jon Katz) — Tue, 19 Jun 2007 00:00:00 -0400

Camera image from U.S. Geological Survey website.

This is a brief update to our June 17, 2007 blog entry on the Connecticut Post's coverage of our law firm. Subsequently, we obtained the newspaper's permission to upload the print version of the article, which is here and continues here. Included is a joint photo of me and my law partner Jay Marks, the first one taken in many years. We are overdue to take and upload more photos of us and our staff to our website. Jon Katz.

Marks & Katz in the CT Post about fighting for justice.

nospam@example.com (Jon Katz) — Sun, 17 Jun 2007 00:00:00 -0400

Last Monday, the Washington, DC, reporter for the Connecticut Post visited my law partner Jay Marks to discuss his immigration law work, and expanded the interview to cover my criminal and Constitutional defense work, and the genesis and progression of our nine-year-old law firm.

The resulting article was published on the front page of today's Sunday Post. The Connecticut Post is published in Bridgeport, where Jay and I were born in the same hospital three months apart; we grew up together one town away.

Concerning the September 11 attacks, Jay rightfully told the reporter: "People who did these terrible things to us were not immigrants but terrorists."

About practicing with Jay, I told the reporter: "We get very little resistance when we want to lower our fees for someone, work pro bono or take on a controversial client. And we inspire each other. The practice of law is about serving your client, not about making money."

It's nice getting our message for justice to a wide media audience Jon Katz.

Journalists are humans. Resist the temptation to treat them as confidants.

nospam@example.com (Jon Katz) — Sun, 11 Mar 2007 00:00:00 -0500

As much as I worship at the altar of the First Amendment, that does not automatically justify worshipping journalists. (Image from the public domain).

Many times, potential clients seek to pay me through "tons of inevitable publicity" of their case, rather than through money payment. I guess they have not heard me speak about my general inclination to speak little to the press about my own clients' cases and to be more readily available to talk about non-clients' cases.

The opportunity for a lawyer to fulfill any dream of being on television (whether for the excitement of appearing on this still-fascinating yet overly-censored medium, or for publicity reasons) should not be at clients' expense, particularly when the appearance turns out to be an awkward dress rehearsal at best. Fortunately, I learned before ever stepping foot into law school how awkward one can look and feel on television. For me it started at thirteen years old, when a cable television interviewer asked for an interview of a youthful customer at the legendary Louis Tannen's magic shop in New York. My excitement quickly turned into sweaty palms, as I became preoccupied with the interviewer's request to look into the camera and not at him while answering his questions and eventually making a coin disappear. My opportunity to expand my magic show clientele went south.

Five years later, I watched myself on New Haven's local ABC affiliate, playing lead trumpet with a folk rock group after we had privately produced and issued an LP record (before the days of CDs). Somehow, the camera tended to close-up on me just after I was finishing a riff, only to see me emptying out the accumulated saliva from my spit valve to the floor. Perhaps such visuals were more in sync with auditioning for Vomit and the Zits. Visually, I was a not ready for prime time player.

Thankfully, a few factors ultimately came together to make me more comfortable and presentable in the mass media, including constant public speaking through court trials, handling rapid-fire questioning from appellate judges, joining my law partner Jay for two years behind the mike on our former weekly radio show "Legalmente Hablando" ("Legally Speaking"), learning from Jay's natural ease speaking on camera and on microphone, and, ultimately, many interviews for several years.

Journalists are humans. It is best to resist any temptation to treat them as confidants. Being human, they are fallible; they are deadline-driven, and many churn out overly-short news stories rather than pursuing in-depth investigation and lengthier coverage, which often is inconsistent with obtaining and presenting objectivity and accuracy; and they compete against the 24/7 never-ending churning of news stories online and off. As much as I worship at the altar of the First Amendment, that does not automatically justify worshipping journalists (aside from Daniel Schorr -- heavy admiration is more like it -- but he has not tried interviewing me; he is in a class by himself).

Over time, I have experienced the real value of never hesitating to say with a smile to journalists: "Off the record", "I will not be commenting on that right now, because...", "You should seek a different interviewee, because my opinion does not match the viewpoint you seek," and "You appear to be trying to get an inaccurate soundbite from me through seeking a yes or no answer to your convoluted question."

Journalists often work at a fast clip, and often seek interviews close to deadline. Recently, a longtime reporter with a Washington, DC, network affiliate kept calling my office while I was offsite, hoping to hear back before her deadline, and telling my secretary she would keep close to her cellphone for my return call about an interesting client for whom we had recently fought another aggressive public round. Not expecting my client to be well-served by talking on the record before feeling out the reporter, I told her at the outset that the conversation was off the record. She wanted to keep talking, and seemed interested in my helping to simplify the convoluted procedural picture of my client's litigation battles. However, soon she started grilling me -- non-objectively -- like a prosecutor might grill a criminal defendant who has waived his or her Fifth Amendment rights.

I told this journalist that I found it of no use to be grilled in this fashion in an off the record conversation, and that I was becoming uncertain whether she would honor keeping the conversation off the record. She tried to bait me to speak on the record by telling me she was waiting for a response from my opposition. She wanted a comment from me before her deadline. She asked: "What should I do? Say you declined to comment?" I responded: "You cannot even say that I declined to comment, because I said at the very beginning that everything I say in this conversation is off the record." With that, this two-decade veteran of local network television news thanked me for confirming lawyers' reputations and abruptly hung up. Granted, this was after I had earlier told her that my years-long experiences with journalists taught me that many could be trusted, but many not.

Finally, when one speaks to a journalist without saying "off the record", the speakers' words are fair game to be quoted and misquoted. (One reason for misquotes is the deadline-driven, news-churning culture of most journalists, but I suspect that too many journalists are more committed to printing a quote than to taking the time and effort to assure it is not a misquote.). Recently, for instance, I returned the phone call of an ABC reporter, and figured he was just getting some background from me, and possibly considering interviewing me on camera about Barak Obama's lawyer's sending "a cease-and-desist letter to [Lindsay] Ashford, asserting that the use of the photos [of presidential candidates' minor children and grandchildren] 'is not simply defamatory, but is a criminal act,' and that the Illinois senator reserved the right to 'pursue civil remedies and criminal referral.'" However, at the end of the discussion, I learned that the call was for an online article, so I realized I might be quoted. That was fine by me, because I never said "off the record." In this instance, the journalist was professional, and quoted me correctly (but only a snippet of our talk): "'If Obama knows that his lawyer is doing this, then that's one reason not to vote for him,' Katz said. "These are clear free speech issues.'" Then, again, I said the same thing about the rest of the candidates. As an aside, the journalist also interviewed First Amendment lawyer Larry Walters, with whom I had the pleasure of working as local counsel in fighting the termination of a prison guard who had posed nude on an Internet site celebrating the tattoo and body piercing culture.

My work is never dull. Jon Katz.