Can You Trust The Media To Get Legal Stories Right?

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95 Responses

  1. Mu says:

    Putting felons and heroin addicts at the level of congressmen is harsh.

  2. Gregg says:

    Thank you, Ken.

  3. jerslan says:

    @Mu

    I know right? It's an insult to felons and heroin addicts everywhere to be brought down to that level ;)

  4. mcinsand says:

    I'm agreeing with Mu and jerslan. Is there a Popehat signal to engage for defending heroin addicts from being defamed by being put on the same level as Congress?

  5. davnel says:

    IMHO, one can't trust the newsies to get ANY technical subject right. They don't understand so they don't catch the (obvious to us) errors.
    .

  6. Dan Weber says:

    WOOKIEE! Two E's! *nervous twitch* I LIKE PASTE

    PS Loved the Simpsons call out

  7. shg says:

    While your legal analysis is absolutely correct, Jackson should have granted summary judgment as there is neither evidence nor basis in law for any reasonable jury to find the acts of a madman reasonably foreseeable. Not every claim, no matter how far-fetched, should force a litigant before a jury.

  8. JR says:

    Putting felons and heroin addicts at the level of congressmen is harsh.

    It is only harsh to felons and heroin addicts.

  9. Coyote says:

    I had just read the Denver Post article at Reason and was all ready to vent some outrage at how we business owners were screwed over by the tort system. Wow, thanks for jamming a stick into the spokes of my accelerating rage bicycle. Ken seems to be making an implicit argument here for carefully understanding the facts first before haring off in a fever of righteousness over an inaccurate and perhaps purposefully inflammatory headline. Boy, I don't think he understands the Internet at all.

  10. melK says:

    Can the media be believed on law coverage? Yes – for *very* carefully selected outlets of media. Bloggers like Pamela Jones, and Ken White for example. The folks at scotusblog, perhaps. I'm sure there are a couple of others, but I can't name them off the top of my head.

    Everything else is run by the Petite Equine Syndicate.

  11. Dan Weber says:

    JR: thatsthejoke.jpg

    Main story:

    It's ironic that LGF got caught up, because as I was reading this story I was remembering one thing from the early days of Dan Rather's memogate, when a blogger got a typography expert/professor on the phone to say "no, these memos couldn't have come from the 70's." Then the Boston Globe called up the guy, grilled him for a while, and he eventually said he couldn't rule out that there was something that he doesn't know about that could have made them. The Boston Globe headline was something like "Professor says it was possible to make memos in the 1970's".

  12. Coyote says:

    My previous comments aside, I must agree with one of the earlier commenters — while this may be absolutely correct as a matter of law, there is something wrong with a legal system that is going to subject Cinemark to a jury decision on whether the actions of a madman, perpetrating a crime that was by all measures unprecedented, were "foreseeable". There has got to be some safe harbor against being responsible for bad outcomes that occur in the general vicinity of someone with deep pockets. Juries strike me as a terrible vehicle for making this kind of determination. Their decision is more likely to be made based on how sympathetic the plaintiff is and how rich and faceless the defendant corporation is, and not whether it is really justice to hammer a movie theater for not being prepared for crazed shooters.

  13. I have a rule for people who tend to believe the media.

    1) Start with a subject for which you are intimately knowledgeable. Perhaps even an expert in.
    2) Read news stories about that subject.
    3) Note how terribly the reporters screw up basic facts, inject their own biases, and generally muck up coverage of the subject.
    And here's the important thing:
    4) Generalize that sentiment to realize that if they can't properly report on a subject you have expertise in, they're probably just as bad on all the subjects you DON'T have expertise in.

    The key advantage of blogging is that it's started to get people with ACTUAL expertise to write about subjects with the proper level of knowledge and perspective. I realize Ken's just blogging from his parents' basement in his pajamas, but he's got a law degree and experience in the subject, which puts him miles ahead of any credentialed "journalist".

  14. Derailleur says:

    While I realize this is more or less a legal and law blog, the media does no better on science, aviation, medicine, or pretty much any other subject. They are in the business of selling advertisement space, not providing you with information.

    Thanks to reading Popehat, I was able to cringe at horrifically bad "news" stories about what a grand jury does.

  15. anne mouse says:

    The real problem is that "foreseeable" is a semantic nullity. There are times in the law when terms that sound like well-known English (like "actual malice" or "fair use") mean something rather different than they do in English, but at least the law provides something approximating a definition, and then there are other times, when the law pulls its underwear over its eyes and stubbornly refuses to admit that there is any need to provide a definition, because the alternative is to admit that no definition is possible.

  16. Chris says:

    I love that the last couple of commenters seem to have missed out on the joy of following the last link in your post, Ken. Well done. :-)

  17. PonyAdvocate says:

    Perhaps you think I am being a pedant

    Well, I don't think so, but to most newspaper readers (who probably take a livelier interest in the world than your average Joe Sixpack citizen who doesn't read newspapers), the subtlety of the distinctions you're drawing are probably lost. Suppose you re-wrote the story to be correct, then asked an everyman Denver Post reader to read both and explain the differences, and asked whether the differences matter. I would guess that even if everyman could explain the differences, the answer as to whether the differences matter would be "No", and that answer might be expanded to include comments about angels dancing on pinheads, picky fucking lawyers, and like that. There are many important things, some of them more important even than this, that newspaper readers don't care about being exactly right, and if their readers don't care, the reporters and editors probably won't care much, either. I'm not saying this is a good thing — I certainly wish people expended as much energy understanding current affairs as they do following the Kardashians and professional sports: we'd have a lot fewer Republicans in office that way — I'm just saying that's the way it is.

    Perhaps you could write a letter of protest to The Denver Post.

  18. lelnet says:

    The best way to undermine one's confidence in the media is to watch them report on a subject (with the _possible_ exception of a sporting event, and even that owing only to the large percentage of readers who will have watched the event in question occur in real time) with which you are already familiar.

  19. Phil says:

    I followed the SCO vs the world cases (IT IP dispute over Linux) from beginning to end. The major thing I took away from it was that most journalists get it wrong, badly wrong, to the point that if you assumed the opposite of what they said, you were nearer the truth. I suspect this is true in most legal reporting.

  20. Ken White says:

    Am now moody because I didn't write "Perhaps you think I am being a pedant. Au contraire."

  21. EAB says:

    "Can you trust the media to get complicated technical details right"

    FTFY. There is a subject in which I have serious professional expertise and have done a lot of media work in relation to it, at local and national levels. I'm routinely appalled at the lack of relationship between the facts and the newspaper story. In one case, I spent an hour explaining a concept to the reporter, and she basically wrote her story to say the exact opposite.

    It took me over a year of doing it, plus some formal media training, to get a handle on how to talk to reporters, break a complicated subject into appropriately-sized tiny bites, and basically give them the correct framing. Now, there is almost no media coverage on any subject that I don't read with major side-eye.

    Reporters are (debatably) good at the mechanics of journalism, not necessarily about deep-diving into the particular subject matter. That's fine when you want to track, say, the chain of events around Rick Perry's indictment. It's less fine when understanding the issues requires a thorough knowledge of the underlying topic.

  22. CaptBackslap says:

    When I was in high school, a team I was on won a state title, and there was a brief write-up about us in the local paper (the only daily in the capitol city of a large state, mind you). In those few paragraphs, I counted five factual errors.

  23. xtmar says:

    The only area where I don't think Gell Mann applies, and you can reasonably trust the media, is politics, because
    1. They are the ones who shape political narrative, it's more difficult to be wrong about something that you create.
    2. The media is an inherently political organization, so they are most closely attuned to political stories, as well as having the most knowledge of them, compared to other topics.
    3. The incentives of the media are most obvious and on display when it comes to politics. When you get into other areas, their motivations are harder to determine, and can be non-obvious.

  24. Aaron says:

    Yup, totally agree with the people saying it's mostly ludicrous to think the majority of the media get any complicated subjects right that are out of their area of expertise. Just like science reporting has gotten pretty horribly bad. Although some is the explosion of sub-specialties that literally takes multiple PHDs to make any sense of them. But those aside, the majority of reporting done is just really crappy.

    And I agree, that blogging (and similar) is finally giving some experts in their fields a way to communicate with the public (if they can be bothered to seek out more information) to correct and provide more expansion on the 'regular' media coverage. Thus, I enjoy Popehat, among others for that reason. Plus the snark. The snark here is a fine example of the art-form.

  25. Bob says:

    the defendant bent my Wookie
    – Ken

    Awesome

  26. OrderoftheQuaff says:

    I don't think you're a pedant, Ken, but I fear that the average American is now too stupid to parse the distinctions you're making. If you think generalist journos are mishandling legal stories, you should check out what they're doing to physics and math stories.

    Hope you get your wookie straightened out, lest you have to tell your wife "my wookie no workie no more."

  27. Hasdrubal says:

    Frankly, the reason I trust blogs like Volokh and Popehat is because they explain their reasoning and link to supporting material. I'm not competent to assess the quality of their reasoning or find competing references or to determine what they _didn't_ cite, (comments can help a lot with that, though) but I do get enough to see if there's logical consistency or obvious bias. That's far more that I can get from a news story.

  28. TerryTowels says:

    @XTMAR. Nope, can't trust the media on politics either. A long time ago (40yrs?) I was an intern in a high-up local government office, and we had to listen to government meetings on squawk-boxes so we'd know when our item would come up. I marveled at how the meetings I listened to, and the meetings reported by the media were so completely different. As far as government goes, watch the hearings, or, if local, attend.

    My issue is in finding good bloggers. I've got my science go-tos, I've got some legal go-tos; but how can I find good reporting on say, Ferguson, Iraq or the Ukraine?

  29. Devil's Advocate says:

    @Coyote
    business owners were screwed were screwed over by the tort system.

    Oh, I doubt that business owners are singled out for the screwing.

  30. Castaigne says:

    @Tim!:

    I'm glad I don't work where you work. It sounds horrible.

    It's just bog-standard Corporate America. *shrugs* You want money, you go where the money is.

    Do you find the world described in 1984 to be a compelling utopic vision?

    Nope.

    Sure it is. But much (MUCH) less desirable than flexibility, creativity, innovation, fun.

    I understand people like to put artsy-stuff like that on the top of their priority lists, but I prefer more realistic and objective measures, thanks.

    —–

    @ CJK Fossman:

    That statement says a lot about the way your mind is working today. I hope you have better days sometimes.

    My days are always just fine, so I don't know what you mean here. And that's how my mind always works.

    —–

    @OrderoftheQuaff:

    Did Castaigne (12:50 P.M.) really equate the police/citizen relationship to master/servant, with the citizens as the servants?

    No, the opposite. Citizens as the masters.

    —–

    @Matthew Cline:

    I think he's saying that if you want an analogy for the relationship between police and citizens, it should be something other than master/servant.

    Quite correct.

  31. Nicholas Weaver says:

    I think headlines are the worst part. Headlines being wrong is a practical tradition, and its shocking when you read a headline like this:

    A Fourth of Americans Think They Will Contract Ebola in the Next Year, Are Wrong

    where the headline actually accurately conveys the story.

  32. CJK Fossman says:

    About the dreadful SCO saga: the amazing part was how many media types did a cut-and-paste of SCOG press releases.

    About those Dan Rather memos: if memory serves, accusations arose because the memos were in a proportional font. The theory was that they could not have been produced on a typewriter because typewriters are monospace. Apparently nobody knew, or bothered to point out, that proportional spaced typewriters had been around since 1944.
    Here's a link.

  33. En Passant says:

    Where can I get some of this man gel stuff? Will it make my taint more snortable? Is it FDA approved? Is there a good balanced article on it anywhere?

  34. Lagaya1 says:

    You dare to use your french on us?

  35. Jeff Ryan says:

    Getting back to the assmunch scenario for a minute, couldn't the plaintiff claim that the act of breaking Chewie was the intentional infliction of emotional distress, because of your deep (if bizarre) emotional ties to Chewie? Just asking.

  36. Mike says:

    The flip side is that we (society as a whole) would not pay the amount it would cost to get news generated by experts who would get it right(er). The news we have is the news the market will bear. Journalists don't get paid like lawyers.

  37. Dion Starfire says:

    Hate to break it to you, Ken, but, technically, you're a member of the media, too. And you're pretty trustworthy, from what I've seen so far.

    Lately, whenever I read a news article about some legal issue, I find myself wondering what you (and the commenters) would have to say about it.

  38. Matthew Cline says:

    @Phil :

    I followed the SCO vs the world cases (IT IP dispute over Linux)

    Ahhhh, good times, good times.

  39. Matthew says:

    Perhaps you think I am being a pedant

    While I was working for an engineering firm, I heard the following phrase as a businessman was explaining the difference between cost and value to a rather dense colleague. The stuck with me: "I'm not trying to be pedantic, I'm trying to be precise." Precision is key in law and ought to be key in reporting. Thanks for clarifying the matter.

  40. htom says:

    CJK Fossman — There were what were called (advertising) proportional spacing typewriters then, but no one has shown that any of them available then could have produced the spacings and letter shapes in the "leaked" memos. The spacings between letters and words is much rougher (the size of the steps in the variation of the size of a space is larger) with those typewriters than with modern word processing equipment — which does exactly reproduce the documents.

    Any topic in which I have more than a passing interest, the "media" do not get it correct. The more technical the field, the more glaring the errors. The worst are usually any stories that have any numbers (let alone logic or math!); it seems that seeing a digit turns on a special "I don't understand so I'll babble" field.

  41. Terry Towels says:

    @htom– it seems that seeing a digit turns on a special "I don't understand so I'll babble" field

    *snort* So, so, sadly true.

  42. PonyAdvocate says:

    @Mr. White

    Am now moody because I didn't write "Perhaps you think I am being a pedant. Au contraire."

    To borrow phrasing from an earlier post, I'm not trying to be pedantic here, I'm trying to be precise. I think the "Au contraire" in this formulation would mean, or could be taken to mean, "No, you do NOT think I am being a pedant." And how could you assert such a thing? What evidence could you have about how members of your unseen and possibly large audience were thinking about your pedantry, or lack thereof? A more precise formulation would be "Perhaps you think I am being a pedant; let me assure you that I am not."

    Just kidding — I know what you mean. ;-)

  43. CJK Fossman says:

    @Tom

    I don't know what you're describing. I do know about IBM Executive typewriters, though. The escapement pawl block in an IBM Executive typewriter contained 8 escapement pawls, which allowed for a 7:1 width ratio between an uppercase "M" and a period.

    Unfortunately I don't have the memos, nor an IBM typestyle catalog of the day. A visual comparison of those two items would go a long way toward clearing up the matter. That catalog, by the way, was pretty thick. I suspect that "no one has shown" exists because no one has looked. I say that because my recollection is of the talk radio blowhards claiming that typewriters were not capable of proportional spacing. That claim is BS. I regularly took service calls at customers that expected their typewriters to produce text generally indistinguishable from printed matter.

  44. htom says:

    Yes, the IBM Proportional Executives printed with a variation that used seven different widths for a character, from one for a period to seven times that for an "M" Modern software prints with variations a tenth to a hundredth (or less) than the smallest step size on the Executive or Selectric Composer. They (the IBMs) do not reproduce the memos. The spacing of the characters does not make the line lengths in the memos. Because no one has found a way to create the memos does not mean it could not have been done; we know, though, that it was not done with that hardware at all. Maybe something else was in the TXANG offices that could have done so. I suspect if they're genuine a time machine is involved.

  45. Moo Moo the Sympathy Duck says:

    I didn't find a mention in the judge's order; does anyone know if the "gun-free zone" was part of plaintiffs' argument?

    I'd have expected them to argue that, by banning the most effective tools of self-defence, Cinemark specifically created the conditions for a lunatic who wants to shoot at people who can't shoot back?

    Or even if a gun-free zone can't be shown to attract shooters per se, that by preventing self-defence against even rare events, they've created a duty of care that was breached by failing to provide security?

    I'm not suggesting that it's necessarily a colourable argument, but I'm curious to know if it was made.

  46. John-David Filing says:

    I'm personally loving the twitter feed of the Denver Post writer, as linked by the Denver Post website: twitter.com/john_ingold

    Now, if someone could please translate for me…

  47. @ TerryTowels: "My issue is in finding good bloggers. I've got my science go-tos, I've got some legal go-tos; but how can I find good reporting on say, Ferguson, Iraq or the Ukraine?

    I realize that your question goes more to a method than the specific topics you mentioned. I don't have a one-size fits all topics method. But for Iraq and the Ukraine, if you're curious about views other than mainstream media's and the White House's, I recommend starting by subscribing to the daily newsletter at http://www.informationclearinghouse.info/. It's a one-man show, but Tom has developed quite a network of people who send him links for those topics and others related to U.S. government shenanigans in Eurasia and northern Africa. His interests run to some other topics too, e.g., Israel-Palestine, bank fraud, the NSA disclosures, police racial discrimination in the U.S. Every day it's a somewhat eclectic collection of links with 2-3-line summaries of the linked pages, but Tom seems to have a very good eye for articles that are reality-based but clash with mainstream media coverage. His newsletter is very good for catching both blog content and non-blog articles that occasionally pop up in his areas of interest.

    An independent reporter named Pepe Escobar keeps watch on all of Eurasian Pipelinestan and those from elsewhere who attempt to affect the course of history there. He publishes in a variety of publications, but they always mention that he writes for Asia Times, so a Google Alert brings me links to his articles as they appear. The query is "pepe escobar" AND "Asia Times". I've never caught Escobar being wrong and he's got a lively writing style.

    Tony Cartalucci blogs at Land Destroyer. He tackles more of the globe but his focus is on clandestine U.S. government ops aimed at defeating self-determination of national governments. He's written a potentially explosive series of articles over the last couple of months on U.S.-Israeli-Gulf Coast state involvement with ISIL in Iraq and Syria.

    Drop me an email at marbux at gmail dot com and I can provide you more resources on the situation in Ukraine and Iraq/Syria.

  48. Dan says:

    WRT the memos, there's also an Occam's Razor issue. If you pulled up MS Word from ~2000, left everything at its default setting, and started typing, the results would be identical to the memos presented to the public. It's certainly possible that some technology, extant in the '70s, would also produce a very similar result, but (1) that technology hasn't been demonstrated yet, (2) any such technology would have to be shown to have been present in either the TXANG office in question or other TXANG offices at the time, and (3) the technology would need to have been simple enough to use that someone would have used it to prepare a quick memo for the file. Rather's supporters (Bush's opponents) were plenty motivated at the time, but failed not only to show the memos were authentic, but even that they were plausible.

    The simplest explanation is most likely to be correct–the memos are (very sloppy) frauds.

  49. Stephen H says:

    I work in accounting, but sometimes get involved in dealing with contracts. I remember several years ago having a boss who just could not deal with the fact that when she asked questions I gave the most accurate possible answer.

    One day she asked me for "just a yes or no answer" to a question, and I refused to play that game. If you rely on the information I provide, then you need to know the ifs, the buts and the maybes.

    Suffice to say we did not get on particularly well – but I left the place on my terms, when I had done what needed to be done, and better than when I started there. I did learn, as I learn from every job. This time, the lesson was to tell people early and often that I am a pedant. Encourage them to make use of it rather than try to undermine one of my chief skills.

    It is a great shame that reportage does not value pedantry and accuracy.

  50. NickM says:

    I don't even trust them for sports stories anymore.
    I have a copy of a Tampa Tribune with a front-page, above-the-fold headline from 2 months ago (June 22) about the Rays no-hitter the night before.
    It wasn't a no-hitter. The opposing team only had 1 hit, but it was a clean single in the 4th inning and was immediately scored as a hit.

  51. NeilB says:

    "Is Any Headline With a Question Mark Ever Answered With 'Yes'?"

    No.

    There, saved you many clicks.

  52. simon says:

    Those in power would like us to believe traditional media outlets because those outlets can be controlled. An individual with a blog, who makes no or little money from the blog is more difficult to control.

  53. I Was Anonymous says:

    Everyone should know the media gets it wrong. Just look at how they portray ponies as cute and sweet, instead of the ineffably evil beings that we know them to be!

  54. CJK Fossman says:

    @htom

    I acknowledge your knowledge exceeds mine on that topic. Thanks for filling in the gaps for me.

  55. ngage92 says:

    Eh, at least the readers of the Denver Post are only passive consumers of the news in question, so ultimately their misunderstanding isn't that big of a deal. The jury on the other hand….

  56. Robert What? says:

    I don't understand the part about the judge saying "a jury might find it foreseeable if they believed the plaintiff." Isn't that a truism in any court case? If the jury believes the plaintiff (or defendant) they will find for that person. Why bother stating the obvious? I think it just confuses people. Am I missing something?

  57. anne mouse says:

    Robert What?,

    Yes, you're missing the whole point of a motion to dismiss. Let's say I sue you for copyright infringement, because I have a registered copyright on the phrase "I don't understand the part about the judge". I have evidence in my favor: a registration from the Copyright office, a story about how that phrase came to me on a snowy night in 1983 and I immediately wrote it down and published it soon after, copies of the publication, witnesses, and so forth.
    Now, there are two roads you might go down:
    1) Try to prove that I'm lying. For this, you'll need evidence of your own – maybe a certified letter from the copyright office that says there's no registration, evidence that me and my witnesses have previous convictions for perjury, and various other evidence.
    That's a "dispute of material fact", and the only way to decide it is to ask the jury (or judge if it's a bench trial) to weigh the evidence and decide whether or not they believe me.
    2) Point out that the short phrase "I don't understand the part about the judge" cannot be copyrighted under US law, for a couple of reasons which aren't important since this is just an example.
    That's a point of law, and the judge can decide it without actually weighing anybody's evidence.

    Option 2) can (and should, in this case) win for you in a pretrial motion, but option 1) can't – it can only be decided at trial.

    What the judge is saying here is that whether the shooting was "foreseeable" depends on what the cinema owners knew or should have known. To decide what they knew or should have known, he'd have to look at the evidence. But he's not allowed to usurp the jury's chance to weigh the evidence. Instead he's required, for purposes of ruling on this motion, to view the plaintiff's evidence in the best possible light, and ignore the defendant's evidence. So as long as the plaintiff has *some* evidence, and it doesn't have to be much (the judge in this case is making it clear that he doesn't think it's at all convincing), that the cinema knew or should have known that there was a risk of a shooting inside the theater, then the case will continue.

  58. OrderoftheQuaff says:

    @Robert What?: No, you're not missing anything, the standard for a summary judgment motion (no triable issue of fact) is high. I am sufficiently imaginative to raise a triable issue of fact on any pleadings you might care to plead. I practiced law for 15 years, never filed such a motion and defeated the three or four such motions made against my clients (which had absolutely no bearing on the ultimate outcome after trial).

    There's a rabbit 100 yards away from you. Can you hit it with a standard dart, as you might find in a tavern? That's a summary judgment. If it's a pony instead, maybe Ken could hit it.

  59. En Passant says:

    @htom, @Derailleur, @Aaron, @davnel, regarding science and technology reporting.

    Representative of the sort of lines I recall from news stories over the years. Not direct quotes because I've forgotten them, but close. So representative:

    10,000 Volts of electricity surged through his body, charring him beyond recognition.
    (No. Just. No.)

    Pressures at such depths exceed thousands of pounds.
    (Say what?)

    The airplane stalled because it ran out of fuel, but the pilot managed to land it safely.
    (Possible, but only by coincidence. Reporters often confuse engine outages with stalls, ie: the wings losing lift due to flow separation at too great an angle of attack.)

    The fiery glow of the comet will light up the sky tonight.
    (We are probably in very deep trouble.)

    Legal:

    Mr. Smith sued Mr. Jones, and the jury agreed, convicting Mr. Jones of …
    (No. Just. No.)

    After being arrested in bloodsoaked clothes while carrying a human head in his backpack, the alleged killer pled innocent at his first court hearing today.
    (No. Just. No. He pled not guilty at arraignment. Did anyone expect otherwise?)

    According to allegations by police he was allegedly charged with allegedly killing his alleged wife.
    (OK. I exaggerate. But misuse of "alleged" is rampant.)

  60. Brian says:

    Can You Trust Popehat To Get a Legal Analysis Right?

    No.

    1) The defendant might win the defamation claim if the court found (correctly) that it doesn't matter whether or not the defendant called me an assmunch, because that's a statement of opinion rather than one of fact and can't be defamation.

    If so, then the plaintiff did not properly allege a claim for defamation, and that cause of action would be dismissed on a Motion to Dismiss.

    2) The defendant might win the intentional infliction of emotional distress claim because, as a matter of law, being called an assmunch is nowhere near outrageous enough to support the tort.

    Again, this is a case of legal sufficiency (or insufficiency), not factual insufficiency. Because the plaintiff did not property allege the clause of action intentional infliction of emotional distress, that claim would be dismissed on a Motion to Dismiss.

    3) The judge might grant summary judgment on the grounds that California does not recognize the tort of trespass to Wookies.

    Ditto. If there's no recognized tort alleged, then were dealing with legal sufficiency, which is grist for a Motion to Dismiss.

    The guy wearing a hat much like the Pope adopts a somewhat pompous tone when he lectures others, but that backfires when he gets his own analysis wrong.

    And another thing. Being a lawyer does not make you smart. We're not dealing with molecular biology or nuclear physics here (and I'm not a biologist or a physicist either).

  61. CJK Fossman says:

    @Brian

    Are you a lawyer?

    Because you seem to know all these big lawyerly words and stuff, so I thought I would ask.

    And IANAL, but I thought a motion for summary judgment was equivalent to a motion to dismiss.

  62. David C says:

    And IANAL, but I thought a motion for summary judgment was equivalent to a motion to dismiss.

    They're slightly different. IIRC, in a motion for summary judgement, the judge is allowed to consider some evidence, while in a motion to dismiss the judge is limited to what's actually in the pleadings. Or something. They're similar enough that a judge will sometimes convert a motion to dismiss into a motion for summary judgement, if he needs to look at that other evidence.

  63. PonyAdvocate says:

    @David C

    in a motion for summary judgement, the judge is allowed to consider some evidence

    In the seventh paragraph of Mr. White's initial post, the first sentence is

    A motion for summary judgment doesn't ask a judge to weigh evidence.

    Also, David C, you say

    They're similar enough that a judge will sometimes convert a motion to dismiss into a motion for summary judgement

    If the differences are as stark as Mr. White seems to imply, then how such a "conversion" could take place is unclear to me: it seems as if it would be like "converting" an apple into a cabbage.

    Obviously, there is, even here, some confusion (or difference of opinion, at least) about the legal subtleties. Given the fineness of some of the distinctions under discussion, I think it's unsurprising — not desirable, not excusable, but unsurprising — that a publication addressed to and consumed by a general audience gets some of the subtleties wrong. I doubt that to the producers and consumers of The Denver Post, these distinctions are as important as they rightfully are to those directly involved in the lawsuit.

  64. Dan says:

    The legal standard for summary judgement under the federal rules (specifically, FRCP 56) is that there be no "genuine issue of material fact", and that the moving party is entitled to judgment as a matter of law. State rules vary, though by and large they're very similar to the federal rules.

    On a SJ motion, the parties need to show enough competent evidence to raise an issue. The judge is not going to weigh the evidence, but he (or she) is going to look to see that there is some evidence. If Ken's heroin addict said, "I wasn't there, but I still know what happened", and that's the only evidence Ken presented, he loses (the defendant wins the summary judgment motion), because his witness isn't competent. But if he can show some competent evidence, that will create a "genuine issue of material fact." That's the extent to which the judge can look at evidence: there must be some, and it must be competent.

  65. David C says:

    If the differences are as stark as Mr. White seems to imply, then how such a "conversion" could take place is unclear to me: it seems as if it would be like "converting" an apple into a cabbage.

    I don't believe he actually gave ANY opinion in this article as to the difference between a motion to dismiss and a motion for summary judgement. My comment was in response to another commenter.

    Anyway, according to this, rule 12(d) states that "If, on a motion under Rule 12(b)(6) [to dismiss for failure to state a claim] . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56."

  66. PonyAdvocate says:

    @David C

    Mr. White's statement

    A motion for summary judgment doesn't ask a judge to weigh evidence.

    seems to me to be (at least somewhat) inconsistent with your statement

    in a motion for summary judgement, the judge is allowed to consider some evidence

    I realize Mr. White didn't address the difference between a motion to dismiss and a motion for summary judgment (I don't think he even mentioned motions to dismiss), but your statement about one metamorphosing into the other seemed to me at odds with the tone of Mr. White's initial post, which to my lay understanding implied that there are rigid and non-overlapping ways of dealing with these issues that are preliminary even to initial considerations of the evidence (and that The Denver Post misleadingly reported the situation). From what you (and others) have said, though, it sounds that there is some elasticity, and even not complete agreement among legal professionals, about how the law addresses these issues; and the subtleties of the distinctions important here are usually below the threshold of observation of those who are not legal professionals. Hence, my confusion, and, possibly, hence, also, at lease in part, the less than completely correct reporting in The Denver Post.

    To summarize, these concepts are clear, even simple, after three years of law school and several years of legal practice. Someone without that background will find these concepts more difficult to understand, and even more difficult to explain effectively to a lay person who is reading about them over his French toast, and who probably doesn't care that much about them, anyway.

  67. David C says:

    Well, I'm not a lawyer. But I think it's possible to bring in evidence that can not be reasonably disputed, and thus can be used at summary judgement.

    Let's say there's a defamation action where the allegations would support defamation, but only if the plaintiff were a nonpublic figure. But the defense brings evidence to show that the plaintiff has done 57 in-depth TV interviews on major networks and was named "Man Of The Year" by Times. Unless the plaintiff somehow disputes that evidence, I think the determination of whether the plaintiff is a public figure could be made by the judge, based on that (undisputed) evidence, in the summary judgement phase, resulting in the granting of the summary judgement. So evidence is considered, but *disputed* evidence is not. And since it's evidence outside the pleading, it would maybe have to be summary judgement instead of a motion to dismiss; but that part doesn't matter so much.

    Or something. Again, I'm not a lawyer. I just read about them on blogs.

  68. Steve Simmons says:

    The media has, for better or for worse, long engaged in the process of making issues simplified so that the reader understands them in a sentence or two. It's not legal issues, it's *all* issues. I cringe every time I read a report on computers, security, or pretty much any other field where I'm moderately knowledgable. If it's not explainable in a two-sentence paragraph, it gets simplified, reduced, and modified into a two-sentence paragraph. Accuracy is subordinated to brevity and making the reader feel like he understands.

  69. Devil's Advocate says:

    @Dan

    WRT the memos, there's also an Occam's Razor issue. If you pulled up MS Word from ~2000, left everything at its default setting, and started typing, the results would be identical to the memos presented to the public.

    I'm pretty sure that Times New Roman was the default setting for font in MS Word from that era, and the memos were clearly not typed in Times New Roman. Compare the bottom half of the lower case c's and e's in the memos to that from your Word output. Times New Roman has thick lines in those spots, while the memos have much thinner lines.

    Occam might also wonder why if it's a forgery someone would go to all the bother of doctoring the image to make their forgery look like it's typewritten, but not bother to change the font to something more like Courier.

  70. davnel says:

    Let me throw in one point: In RE Legal blogging, and the like, there's a very good legal discussion program on Leo LaPorte's TWiT.TV called This Week In Law ( http://twit.tv/show/this-week-in-law/272 ), hosted by Denise Howell and Evan Brown. They cover many interesting and important subjects. The reason I bring it up is because both she and Evan are practicing attorneys, and call on many other lawyers and law professors to explain the subjects of the program. Excellent viewing, even for legal dunces like me.

  71. Dion Starfire says:

    Pressures at such depths exceed thousands of pounds.

    The airplane stalled because it ran out of fuel, but the pilot managed to land it safely.

    Mr. Smith sued Mr. Jones, and the jury agreed, convicting Mr. Jones of …

    (…) the alleged killer pled innocent at his first court hearing today.

    Hate to break it to you, En Passant, but most of those sound perfectly reasonable to my layman's ear, and I consider myself better informed than most (people I read about in the media :P).

    It's only since I started reading Popehat that I'd spot the 'civil suit = conviction' error. Using "stalling" for an airplane engine is perfectly understandable for non-aviators since that word is quite commonly applied to automotive engines.

  72. Matt says:

    After Ken's older post about sentencing guidelines vs reality vs what's reported, and re-emphasized here, I was wondering what the reality might be if they manage to convict Rick Perry of the 2 felonies they charged him with. I suspect it wouldn't even be close to the 109 years I saw reported all over as possible… I mean, different states, I grant you, but using Illinois governors as a guide (hey, 4 convictions is somewhat of a data point), I would assume practically speaking something in the 5-10 year range, maybe 15 at the outside.

    As far as here, I see somebody mentioned a high bar for summary judgement, I would have assumed it would be fairly high, in almost a "when in doubt, leave it for the jury, it's their job anyway" kind of thing.

    ETA: @Dion Starfire: Just to nitpick (or be a pedant?): It would be thousands of pounds *per square inch* of pressure, and unlike cars, airplanes stall when they don't have enough airflow to provide lift, while I'm pretty sure it is (or used to be) "flame out" when they run out of fuel.

    @NeilB – I forget the name, but there's a "rule" for that too, how headlines that are questions can generally be answered "No"…

  73. JustSomeGuy says:

    I hardly think it's fair to besmirch the reputation of felons and heroin addicts by lumping them in with Congressmen. Hell, if you hadn't proved yourself so good at handling vexatious litigants, I'd probably sue you on their behalf :-)

  74. MickS says:

    Can You Trust The Media To Get Stories Right

    There fixed it for you.

    When I've read a media article about something that I have knowledge of the stories invariably contain errors.

  75. David C says:

    Just to nitpick (or be a pedant?): It would be thousands of pounds *per square inch* of pressure

    To be even more nitpicky and pedantic, it would be correct the way they phrased it, too, since the surface area exceeds one square inch. It would sort of be like saying my car can be driven in excess of 65 miles and leaving off the "per hour" – although the "per" was probably intended, it's technically still correct even without it.

  76. En Passant says:

    Matt wrote August 25, 2014 at 8:19 pm:

    ETA: @Dion Starfire: Just to nitpick (or be a pedant?): It would be thousands of pounds *per square inch* of pressure,

    Exactly. Units matter. Although I'm partial to stones per square furlong.

    Likewise with "volts surged". Volts don't flow or "surge". The Ampere or "amp" (units of Coulombs per second) is the unit for flow of electrical charge.

    Where can I get one of those pendants? Do they have little pony images?

    and unlike cars, airplanes stall when they don't have enough airflow to provide lift, while I'm pretty sure it is (or used to be) "flame out" when they run out of fuel.

    Or for reciprocating engines, stopped, quit, or died. Although either can ruin your whole day, recovery from a stall is much more immediately urgent than recovery from an engine outage. When an airplane stalls, it falls. When its engine stops, it glides (usually, except for coincidence).

  77. Devil's Advocate says:

    @En Passant
    Stones per square furlong is not a unit of pressure. ;) Perhaps you really meant Newtons per square furlong.

  78. Dion Starfire says:

    and unlike cars, airplanes stall when they don't have enough airflow to provide lift, while I'm pretty sure it is (or used to be) "flame out" when they run out of fuel.

    I'm not arguing that the use of "stall" for engine failure is technically accurate when talking about airplanes. I simply meant that people without any background or education in aviation probably would not be confused by that usage. It's no different than calling the internet the world wide web, saying a program crashed because it's non-responsive, calling a supercharger a turbocharger, or any of the other millions of fine distinctions that most people are ignorant of.

    Do you really want to live in a world where everybody has an expert's knowledge of every field they interact with? If you think unemployment is bad now …

  79. Dion,

    Are you saying we should excuse reporters from technical accuracy because some of their readers are simpletons? It's true that some people may not know what a "stall" is in relation to aircraft, but in that case a reporter should say an airplane ran out of fuel or suffered engine failure. Both could be technically correct and understood by a layman without making a significant error that anyone with an understanding of aircraft would cringe at. It's not a fine distinction.

    When a reporter makes such an error, it signifies to anyone who does have moderate expertise that the reporter doesn't have a clue what they're talking about. And it damages the credibility of that reporter and the editing team responsible for publication.

    This is WHY our media has such low credibility. Because they seemingly can't be bothered to get gross distinctions correct, such as the difference between denying a motion for summary judgement and affirmatively granting that the plaintiff's theory has merit. They didn't just get a fine distinction wrong. They changed the entire meaning of the ruling into something it's not. And they wonder why people are getting their new from bloggers — experts in the fields in question — rather than journalism school grads who don't know the difference.

  80. Jacob Schmidt says:

    Are you saying we should excuse reporters from technical accuracy because some of their readers are simpletons?

    I'm not sure why you imagine lack of understanding of technical fields constitutes being a simpleton.

    In any case, I'm perfectly willing to let technical inaccuracy slide, so long as the inaccuracy is not important to the substance of the matter at hand. Reporting a plane crash, the possible cause, how many were injured, who's responsible, etc, while using the word "stall" incorrectly? Nah, not gonna care. Accuracy is better, of course, but minor or irrelevant inaccuracies are trivial.

  81. Kratoklastes says:

    The best general rule of thumb is to view all journalistic output as entertainment rather than information.

    Even Jefferson quipped that men who read newspapers are less informed than those who don't read at all. (T-Jeff was only talking about white, property-owning, slaveholding men, obviously).

    If you science-y and law-ish dudes think that the media gets your shit wrong, try being in economics or quant finance: the reportage on that is so far beyond retarded that it would make a good episode of The Twilight Zone.

    Sidebar: for all his obloquy of newspapers, T-Jeff would still prefer a society with newspapers and no government, to one with government but no newspapers.

    https://www.goodreads.com/quotes/search?utf8=%E2%9C%93&q=jefferson+newspaper&commit=Search

  82. En Passant says:

    Devil's Advocate wrote on August 26, 2014 at 10:57 am:

    Stones per square furlong is not a unit of pressure. ;) Perhaps you really meant Newtons per square furlong.

    Ah, the old debate that weight is actually the force generated on a given mass in Earth's surface gravitational field, g. And a stone, like a pound, is a unit of weight, not mass. OK, be a pendant. ;)

    I'll confess that due to living more or less on the surface of the Earth, I get sloppy about these things. But I do think the expression of g as furlongs per fortnight per fortnight is a much more impressive number than the measly 9.81 meters per second per second of SI units.

  83. Czernobog says:

    @Jacob Schmidt: But it's not a minor inaccuracy, that's the whole point. The difference between a plane stalling to it's engine quitting is akin to the difference between a driver losing control of their vehicle to rolling to a halt.

  84. Devil's Advocate says:

    g = 71.35 x 10^9 fur/sq. ftn

  85. En Passant says:

    @Devil's Advocate

    I got 79.08 for the mantissa. But I was using astronomical fortnights (== 14.77 days).

    Likely still botched the arithmetic though. Just another tribulation of replacing MKS with FSF (Furlongs Stones Fortnights).

  86. Dion Starfire says:

    @Brad
    If you're not a lawyer, look up the different types of intent recognized by the law. (AIUI, there are at least two types)
    If you're not a techie, research why calling any physical device a "printer" is incorrect.
    If you're not a fan of sailing, look up the difference between between ropes, lines, halyards, and stays.

    The list goes on and on. Every field of study has it's specialized meanings for everyday terms, and explaining them would turn any news story into a tangent-ridden mess. How many people would follow the news if every story read like a legal text?

  87. Jacob Schmidt says:

    The difference between a plane stalling to it's engine quitting is akin to the difference between a driver losing control of their vehicle to rolling to a halt.

    Indeed, however "engine quitting" is essentially the common definition of the word "stall." The error, in this case, still gives the correct impression. And given that the report was likely for mass consumption, not consumption within the aviation field specifically, calling the use of the term "stall" an error is questionable in the first place. At worst the error is trivial, and not a one misleading in any meaningful sense.

  88. Czernobog says:

    No, the error does not give the correct impression, unless the reader is ignorant of it's meaning within the context of Aviation. Relying on the readers' ignorance and thereby propagating it is lazy, at best. Even if we accept your assertion that the average reader is that ignorant, which I do not. I'm not a pilot, and yet I know what it means for a plane to stall. Pretty sure I learned it from one of a gajillion movies involving planes.

    And the writer didn't have to explain the definition of stalling to his readers, because the plane didn't stall. All he had to do was use a different word, one which doesn't have a specialized meaning in context.

    Similarly, it would only require a minimal effort to use "Amps of current" instead of "Volts of Electricity" to write a sentance that would be correct and meaningful to anyone who remembers the rudimentary physics they learned in school without actually creating a need to explain anything to those who don't.

  89. Jacob Schmidt says:

    No, the error does not give the correct impression, unless the reader is ignorant of it's meaning within the context of Aviation.[1] Relying on the readers' ignorance and thereby propagating it is lazy, at best. Even if we accept your assertion that the average reader is that ignorant, which I do not.[2]

    1) Or, y'know, the reader has a fifth grade capability of using words with more than 1 definition.

    I mean, look at this: "The airplane stalled because it ran out of fuel, but the pilot managed to land it safely." Is there any confusion as to which definition is being used? It's seems blatantly, obviously, how-the-fuck-could-you-possibly-screw-this-up clear what's being said, here. Now, had the report simply said, "The plane stalled," I would probably have a problem with that. Given the elaboration, however, this get's filed away under "trivial."

    2) 'Course you don't. You can't accept my assertion if I haven't asserted it. One might hypothetically accept such an assertion asserted by another (indeed, I think it has been asserted by others), but it has no real bearing on my point.

    To recap: technical accuracy is preferable. I'm going to let minor inaccuracies slide, particularly if those inaccuracies cease being inaccuracies under more common definitions.

  90. nartreb says:

    "The airplane stalled because it ran out of fuel, but the pilot managed to land it safely." Is there any confusion as to which definition is being used?

    There is indeed. I can't tell if you're telling me that

    a) the airplane stalled in the aerodynamic sense and that this was somehow related to running out of fuel (a sudden loss of thrust could cause a stall, if the airplane was in a slow climb, for example), or

    b) the engine stopped working because it ran out of fuel, but for some reason you've chosen to report that in the most confusing terms possible.

    The first leaves me a bit perplexed because it raises more questions than it answers – a stall due to a "bingo" is possible, but not the first thing you'd expect.

    The second seems to be what you intended, but why didn't you just say what you meant?

    There are so many better ways to remove ambiguity in that sentence, that any ten-year-old could have seen.

    You could say "the engine stalled, but the pilot managed…" – that's clear enough, though still distracting.

    You could say "the airplane ran out of fuel, but the pilot managed…".

    Note that it's not so easy for a good journalist to write "the engine stopped because it ran out of fuel…" Typically a journalist is getting third-hand reports from the pilot's family, the bartender where the air-traffic controller hangs out, or (worst of all) government spokespeople. When on a tight deadline, they're lucky to get any reliable source to confirm that the engine stopped. Establishing *why* the engine stopped is something that might have to wait for the next day's edition: was it an empty fuel tank (with no reserve)? A blocked fuel line? Something unrelated to fuel (blocked air supply, defective spark plugs)?

    When a reporter writes "the airplane stalled because it ran out of fuel", right away you know that they're not even asking the right questions, never mind trying to check the answers.

  91. Micha Elyi says:

    Q. "Can You Trust The Media To Get Legal Stories Right?"

    A. Can't trust 'em to get any stories right.
    __________
    Question Authority. (Ask me anything.)

  1. August 23, 2014

    […] The judge there held within the realm of foreseeable the one-in-a-million act of a crazy, because the worst, most bizarre, least foreseeable possibility was, in his view, foreseeable.  Lenore saw worst-first thinking at work.  Notably, Ken White at Popehat thought the judge was correct. […]

  2. August 23, 2014

    […] mass shooting rampage at its Aurora, Colo. theater two years ago. [Deadline Hollywood] Ken White at Popehat corrects some media misapprehension about the difference between a summary judgment motion and […]

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  4. September 17, 2014

    […] newspaper ain't going to get it right, especially if the reporter is someone who doesn't have any understanding of points 1-6 […]

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