Lie? Isn’t that a strong word? Yes, and by catholic catechism definitions, maybe the media does not lie. But when institutions do not give the truth when they claim that they do, the effect is the same. This piece seeks to explain how that happens.

No self-respecting news organization will print fake or distorted news. Instead, they will print “the facts.” They will relentlessly pursue “the facts” with mind-numbing specificity until they find them. And if they find that previously reported facts are not correct, they will correct themselves, even if that correction is rather embarrassing. (Most of the time, anyway.)

An example of this relentless concentration on “facts” is this story about Sean Spicer coming from the bushes. One story said that he came “from” the bushes to speak to reporters, implying that he was hiding in the bushes. Later, it was corrected that he came from “among” the bushes. This more accurately reflected “the facts.”

This vigorous truth-telling obscures the way that lies happen. To explain this, I need to use an example.

How to Talk and Write Like a Lawyer

I am a lawyer who has done some litigation. I love it. But one of the things I’ve noticed is how much people who are not lawyers do not understand the job of lawyers in litigation. People think we are bad because we don’t tell the truth. Well, often we don’t. That’s because it’s often not the job of the lawyer to tell the truth. Of course, we can’t lie by telling a false fact, but remember the example of attorney-client privilege: our job is often to not tell the truth.

For attorneys who litigate, our job is not to “tell the truth,” its to tell our client’s story in the best way possible. Sure, that’s going to involve the truth, but the truth is really hard to find. “My client punched him” is just a fact. “And it was/wasn’t justified” is the difficult part of the truth.

A one-sided view of the facts is not the truth. On the other end, overwhelming amounts of information also hide the truth. It’s the different attorneys’ job, in tandem and often at odds with each other, to figure out the important information that gets at the truth and present that to those who make a judgement on the truth. It’s either the judge or the jury’s job to find the truth from what they are given by attorneys.

Meanwhile, it’s my job to tell the best dang version of the story my client has, without committing perjury. That’s because the other side is going to tell the worst dang story my client has, without committing perjury. Sure, we might quickly mention bad facts, only to move on to all the good ones where we wax eloquently. But it’s the system that finds the truth, not me.

I remember the first time I did this in practice. I was given my first assignment to respond to a motion for summary judgement (basically, making us lose before trial) that said our complaint was filed after the 3-year statute of limitations, the time limit on bringing a lawsuit (regardless of guilt/liability). The issue came down to whether my client “realized” or, based on the facts, “should have realized” that she was financially injured by the defendant. As soon as she knows or should have known, the clock starts.

My boss, an excellent lawyer and a wonderful man, came to me and said, “Caleb, I need you to write a brief about why she didn’t know about this until April 24th. Now, you may remember being in law school where you read cases and try to think of ‘the right answer’ to the problem. Yeah, we don’t do that here. We have clients. April 24th, we’re good. April 23rd, we’re screwed.” I smiled. “I’m on it,” I said.

Truth be told, I had no idea when our client “realized” she had been injured. As far as I knew, our client was as dumb as a rock on that question. It was also a good question as to when an average reasonable person should have realized that they were injured based on the ambiguous emails and other seedy actions of third parties (who unfortunately had no money, so couldn’t be sued).

But dog-gone-it, I wrote one heck of a story, using true facts, about how our helpless and innocent client was completely caught off-guard by this unconscionable breach of fiduciary duty until….oh, you know….exactly three years to the day before we filed the complaint.

Why? Because that’s my job as an attorney. I tell my client’s best story, and my knowledge of the law helps me know what “best” actually means. I’m supposed to know how my client feels and what she wants. I use my skills and knowledge to push for that in a system that doesn’t care what she wants or feels. It only cares about the law (which is often ambiguous) and the facts (which are often hard to make sense of) to uncover the truth.

The truth? That’s the judge’s job. He never digs into the facts, because he doesn’t have time for that with his docket. He only knows what we tell him. I tell my story, the other side tells theirs. The law sets the rules. He makes the call. The system as a whole finds the truth. (Most of the time, anyway).

I love being a lawyer because, despite the messiness of real life, I know my part in the ultimate goal. My boss wasn’t telling me to “lie.” He was telling me to know who I am, and who I am supposed to have sympathy for. He was telling me that I don’t have to take the other side’s version of the story at face value. He was telling me to dig into the emails and depositions for myself, and do my job.

In short, he was telling me to be a good lawyer, because we have a side.

How to Write Like a Bad Reporter

Seeing this work of a plaintiff’s lawyer from the inside has really painted my view of reading news reporting. So often, news only comes from “one side.” Sometimes, it’s quite blatant.

Exhibit 1

For example, in this story about a student/administrator/police officer altercation, the only source of information is a plaintiff’s lawyer. Sure, the headline says “attorney says,” but that is overwhelmed by the substance of the article.

What the article does is guide us through a black underdog vs. aggressive white authority figures by commentary from a plaintiff’s attorney, representing the black student. The attorney is positively identified as a “civil rights attorney,” instead of what he describes himself as on his website: a normal general practice and personal injury attorney who does hourly criminal law practice (to make payroll) and commission-based personal injury (to roll the dice on a payout). Facts are presented in such a way to make the black student seem as if he has been wronged, and the white officer and administrator as if they have stepped over the line.

I mean, brilliant story-telling. The work looks familiar. ….too familiar. I mean, is this a legal complaint or a news article?

Exhibit 2

Remember that old story about Stereotypically-Southern Paula Deen being racist and calling black people the n-word?

What was the particular admission about using the n-word? If you dig into other articles, you can find it. The only instance Paula Deen can positively remember using the N-word is in the 1980s when she recounted being held at gunpoint by a black bank-robber to her husband in the privacy of her own home. She also “may have used it” when repeating the conversations of black employees.

Why is this even a story? I’ll tell you why. Because “I Used the N-Word, but Don’t Condone Racism” is a click-bait ready title that makes Paula Deen look stupid. By association, it also makes conservative Southern whites look a little ridiculous. The only thing that would make this worse is if we paired it with a picture of her actually looking ridic– oh wait. They already did. Also, the information came from a deposition, which is when a plaintiff’s attorney is questioning a defendant to draw out information that helps the plaintiff’s case.

I mean, with all that wasted news-coverage based on clicks, which was the cause of upending Deen’s career, most people probably didn’t even know that Plaintiff Lisa Jackson is actually a white lesbian woman who worked for Deen for 5 years before quitting due to panic attacks and who pretty much lost her case after half of it got completely thrown out by the judge because you can’t file a discrimination suit on behalf of unnamed third parties.

Etc., Etc.

I wish incidents like these were the exception or exceedingly rare. Unfortunately they’re not. Perhaps you’d like to read in the New York Times about how white Americans vote against their interests based on partisanship? That’s not necessarily an moot conclusion, reading it has some strange traits. It sees working-class Trump voters as outsiders who are interviewed, but never understood on their own terms. They are diagnosed, but they are not given sympathy.

Perhaps you’d like to read about White Privilege from a blog within the Washington Post. It is written by a black writer in Washington, D.C., and while the topic is not exactly off-limits, it does seem to be completely ignorant of the inter-race dynamics that can erase the privilege of certain lower class whites. Additionally, I bet if you could also write a 400 page book on the concept of “White Trash.” Oh wait. Someone already has.

Maybe you might have run across the initial reports of white on minority incidents of violence that are widely reported and shared at the outset, but then slowly and quietly end up getting debunked as time progresses.

Maybe you’d like to see a cheer-leading story about women in the Senate where such comments that accent a “good side” and “bad side” come out such as “so they say they’re ready to tackle big issues like jobs, transportation, immigration, but it’s their male counterparts [emphasis in original] who keep opening Roe vs. Wade, contraception.” Or maybe this gem: “You know, I think the thing is, I think every man wakes up in the morning, looks in the mirror and says ‘I could be President.’ I think every woman looks in the mirror and says ‘What can I get done for my country today?'” Oooof. Wow.

Maybe you read the much-hyped book and writing tour “The End of Men” and saw, despite attempts to be somewhat objective, lines like “Are men literally obsolete? Of course not, and if we had to prove that we could never win. For one thing, we haven’t figured out a way to harvest sperm without them being, you know, alive.” Oooof. That’s not insulting……right? At least it came from the partisan hotbed of….wait….Time magazine?

The list goes on, and on and on and on.

Objective Journalism From a Side Is Just As Bad As Lying

Facts are facts, and though they are often difficult to determine, they are what they are. But that’s not the end of the story about truth. Choice of facts reveals the “side.” And people are picking up on it.

People can read an article and easily understand which facts are celebrated, which facts are blandly presented, and which facts the author revels. For instance, regarding the Sean Spicer story at the beginning: Why were the bushes even mentioned? What is their significance? Do they add anything but flourish to the central point that the Trump administration was trying to answer questions about the Comey firing? No. It does not. It reads like narrative, the type of narrative that I would use as a lawyer if I were trying to tell the worst version of the other side’s story.

The “How” of the lies of the media is writing like a lawyer, while claiming they are not like a lawyer.

There are no deliberate misstatements of facts, but there is a highly strategic, whether deliberate or implicit, presentation of those facts. In conservative circles, this idea is communicated with words like “the narrative” chosen by networks, and “media bias,” and “liberal media” and other forms. The useless retort is that these are “just the facts.”

That is why these days, “facts” matter less than knowing whose “side” you are on. In general, if you are white instead of minority, heartland instead of coast, male instead of female, pro-enforcement instead of pro-immigrant, conservative instead of liberal, religious instead of mainstream, or Republican instead of Democrat,  it is extremely easy to get the sense that the facts are not being told by someone who is on your “side.”

And that is why “side” is becoming all the more important. Why are fact-free conspiracy theories so prevalent? Because “facts” have taken on a strategic quality, and “side” is a powerful antidote. It’s no accident that the Alt-right is an “anti-Muslim, anti-immigrant, anti-women” confederation of “young white men who see themselves first and foremost as champions of their own demographic.” There are consequences to institutions not doing their job.

 

If we want to end the partisanship, we need a steady dose of the truth. But the truth is trickier than just “the facts.” Nobody cares about the facts apart from which facts are important enough to print, and what those facts mean. That’s a moral question, not a factual one. If we are going to be a good judges of issues in this republic, we need news institutions with the talent and resources to tell more than just one side.