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Letter to a Newer Media Lawyer: If a Farm Girl in the Midwest Can Have a Media Practice, So Can You!

By Robin Luce Herrmann

Yep. I was raised a farm girl. Out of respect for my vegetarian and vegan friends, I will spare you the gory details of my chores and activities on my grandfather's farm. (If you are morbidly curious, we can discuss wethers and barrows over drinks.) I practice law in the Midwest – not exactly the epicenter for the media or the practice of media law. And I do have a media practice, indeed we have a media team! So, if you don't practice on "the coast," or have a journalism background, or an already developed media clientele, hopefully my experience and approach will provide some helpful ideas.

Fertile Acreage Is An Advantage, But Not A Must

My path to becoming a media lawyer (like many) was not exactly planned or straight. After college, I earned a paralegal certificate so that I could work in the law before taking the law school plunge. I was hired at Butzel Long as a litigation paralegal. I worked on anti-trust cases, labor and employment cases, breach of contract – any and every kind of litigation I could get my hands on. One of the first cases I worked on involved 60 Minutes in a defamation suit brought by a Michigan doctor. Our team was led by Dick Rassel, who was responsible for expanding our media practice beyond representations of local media entities. I admit that I was a bit star struck initially by the thought of representing Ed Bradley, but I didn't actually meet him for years, and in the meantime, working on the case was mostly a lot of pure (and typical) litigation slog.

I certainly benefitted from working with seasoned media lawyers with an established media clientele. But the practice of law has changed tremendously since the 1980s. Few attorneys are "lifers" like me – and clients no longer commit to the same attorney for life. Clients are also increasingly aware and concerned about the diversity of their litigation teams and are routinely evaluating and changing their representation to better fit their corporate goals. Most importantly, the entities needing First Amendment experience have also changed. Then, "media clients" were broadcasters (TV and radio) and print (newspapers, magazines, books). Now, "bricks and mortar" clients need content advice as well. Almost every business and individual is a content provider, whether through their social media accounts, blogs or websites. Over the last decade my team has developed many new clients, including drug companies, hospital/health care companies, educational institutions, and even tooling manufacturers. As a result, today when you think "media client," instead of thinking print or broadcast, think "content provider." Throughout the rest of this article, when I refer to media clients, I really mean content providers.

When you consider the brick and mortar clients with whom you interact, you may want to think of them differently. Research their on-line presence – what sort of content are they generating? Do they have effective Terms of Use and Privacy policies? Does their social media content raise areas of potential concern? Are they one of those companies that seem to post any photo or video they can access on the internet without any concern for copyright or trademark infringement? If the answer to any of these questions is "yes" then you've found some potential media clients. You could offer to do a free lunch time seminar on best practices for on-line content, or publish a client alert on best practices or on a new decision that might be of interest. You can also educate your colleagues, enabling them to issue spot and call on you to help their clients. The point is that the clients in need of this expertise are much more varied today and there are many more of them than in the past. You can use this to build a practice.

Don't Put All Your Eggs In One Basket

It is extremely difficult for most newer lawyers – particularly those not at a firm with a very robust media practice – to do only media work. And that may be a good thing. Judges usually don't see many First Amendment cases. And when they get them, they like to hang on to them. Why? Because media cases tend to be more interesting than the run of the mill insurance and breach of contract cases judges usually see. They can be more challenging intellectually and they often generate publicity. Some TV face time can be helpful to a judge facing re-election with limited campaign funds.

Like most states, Michigan has heightened standards for defamation claims and the protections provided by § 230 of the CDA are counter-intuitive to many judges. One of your primary jobs as an advocate is to educate the court (without lecturing) on your client's behalf and it is very helpful to have some experience in, and understanding of, the more "usual" cases in order to persuade the court that early dismissal is appropriate and warranted in your case.

In addition to general litigation experience, there are other types of cases that can be extremely helpful to a media practice. Early in my career, I worked on a lot of non-compete cases – we were actually developing Michigan law on the subject due to a recent statutory change. This was great training because the cases involved TRO's, preliminary injunctions (including evidentiary hearings) and were extremely fast paced. This training provided a great foundation for the gag orders, prior restraints and last-minute subpoenas that come with a media practice.

I also worked on many default judgment cases. Typically, they involved a pro se plaintiff who filed a case and submitted paperwork suggesting that the defendant had been served (they weren't) and the court would then issue a default judgment. Getting these judgments set aside could be a procedural nightmare and neither the plaintiffs nor the judges liked our efforts, but it was helpful experience in dealing with pro se litigants, who we often see in media cases. Another valuable lesson was that even cases with not-so-sexy labels (like "default judgment") can present a valuable opportunity. Because of my expertise in this area, I was asked to work on a case for a communications/advertising client. In that case, our client was dismissed in an initial motion, and the plaintiff subsequently obtained a $21,000,000 default judgment against an unincorporated subdivision and assumed name of our client, and holding our client liable to plaintiff for the default judgment. Among other things, we had to obtain a stay bond – a very expensive stay bond – which we then attempted to get reduced. Ten years after the case was filed, an appellate court set aside the default.

42 USC § 1983 cases also provide an especially good opportunity for newer media lawyers. They involve constitutional claims which are usually great experience in and of themselves. In addition, prevailing plaintiff's counsel can obtain fees in 42 USC § 1983 cases. This is good experience because obtaining fees is much more complicated than one might initially think and the more practice you can get in this area, the better. Also, judges generally prefer working with an attorney (no matter how inexperienced) than a pro se plaintiff, who can often drive chambers to distraction. These cases provide great opportunities to get yourself before a judge and garner some valuable hands-on experience. As a first-year associate, I represented a three-time incarcerated armed robber who alleged he had been beaten by police. I took the depositions of the police officers involved, interviewed potential expert witnesses, took the case before a mediation panel, briefed and argued all motions. I requested – and obtained – discovery sanctions against the city and ultimately obtained a settlement for my client for the benefit of his young children. These cases are winnable!

As a newer media lawyer you should seek out these kinds of cases. I found the experience I gained to be tremendously helpful in litigating claims against media clients, and I think you will too.

Take The Bull By The Horns (Be Brave And Confident)

A recurring refrain in these letters to newer media lawyers is to take advantage of all the opportunities presented to you. I couldn't agree more, and I would add to that advice that you should also look to create your own opportunities.

In that 60 Minutes case early on in my career, I started as a paralegal. I took it upon myself to find ways I could contribute above and beyond document management and also learn along the way. The pertinent events recounted in the broadcast occurred in 1972, the broadcast was in 1983, and the trial occurred in 1992. Because of the nature of the claim, we were essentially litigating a medical malpractice claim within a defamation claim. As a result, we had to be able to relate in 1992 the state of the applicable medical standards from 20 years earlier. I spent a lot of time in libraries with hard copies of the Reader's Guide to Periodical Literature (Google it) to research various issues because – well, it was before the invention of the internet. Eventually my research led to identifying a medical expert for trial who testified that he had never before appeared as an expert, and did so here only because he was so moved by what had happened to the teenage boy in the case that he could not stand idly by without speaking up. (He testified to this, by the way, while openly weeping – what a great witness!) In addition to factual research, one of my principal responsibilities was to analyze the medical records. After many, many hours of scrutiny, it became clear that there was something seriously off with the records and we successfully presented this evidence at trial. With this case, one of my very first, I established a reputation for being able to handle complex, document-intensive cases and effectively manage a litigation team. As a result, I was from then on asked to be involved in the majority of complex litigation matters within our firm. The lesson is, no matter what your "official" role in a case may be, take the initiative to immerse yourself – you will be a valuable contributor.

And if you haven't been handed a role or responsibilities, you should look for ways to create your own opportunities. On July 13, 1995, about 2,500 employees of Detroit's two primary newspapers (members of six different unions) went on strike. As a new media lawyer, I took it upon myself to start knocking on partners' doors asking to get involved. I saw it as an opportunity to learn more about the business side and to interact with management in a way that I normally would not be able to do. As a second-year associate, I worked on an injunction to protect our client's facility so we could continue to print. I crossed picket lines and routinely was out interviewing witnesses and obtaining affidavits at two and three o'clock in the morning to document instances of violence, larceny and intimidation. I was the lone female attending weekly security meetings with former Special Forces troops and Marines, as well as the top executives of the client. I ended up managing all of the evidence gathered at multiple facilities – dozens of internal reports, videotapes, and police reports every day – and doling out any of the follow up work I didn't do myself. I coordinated the dozens of cases, both civil and criminal, that resulted from the work and sat second chair at trial on one of those civil cases. Eventually the amassed evidence resulted in our bringing a civil RICO claim with more than 250 predicate acts – and thus my civil RICO practice was born.

Most importantly, I became a familiar face to each of the executives and in-house attorneys for the client and established trusted relationships that continue to this day. (As an added plus, my mom was impressed when she thought she saw me on CNN during a particularly violent and harrowing night at our client's printing plant. I actually don't think it was me since I was more likely running away to safety at that moment, but she was very proud!)

Ultimately, actively seeking out work you'd like to do is critical. It might be because you want to work with a particular client, or get experience on a particular kind of case, or perhaps you want to learn from a particular colleague to get the benefit of their experience. Whatever the reason, knock on doors to create the opportunities you want and then seize the opportunities you find.

Achieving a Bumper Crop

In addition to identifying current clients who provide content and may need your expertise, there are other things you can do to build your client base and establish your credentials. Remember that you are always investing in yourself and in your career. The following are some of the things that I and my team have done as part of our media practice.

If at all possible, get involved with and attend MLRC or ABA Forum on Communications Law events (even if you have to fund some or all of it yourself). It can be intimidating at first, walking in to meet a group of people, some of whom have known each other for more than 25 years. But know that this is a relatively small media bar made up of people who have a vested interest in encouraging new members with new energy into our ranks and when you make even a small effort, we are very welcoming. There are special events for first time attendees and mentoring efforts to pair first time attendees with more seasoned members of the media bar. There are also additional opportunities to get involved if you are willing to dig in and contribute: newsletters, webinars, and regional events, etc.

Closer to home there are very likely other, perhaps less expensive opportunities that you should also pursue. Getting involved with your state and local bar committees can be a great way to enhance your name recognition, lead to speaking and/or writing opportunities, and serve to get the word out about your expertise.

Attend events held by the Society of Professional Journalists (SPJ), Investigative Reporters and Editors, Inc. (IRE), or other journalism events (educational or otherwise) to meet journalists and to learn what issues are top of mind for them. You will meet many freelance journalists who would welcome meeting an attorney they could call on when they have an issue. These organizations also frequently need speakers on legal topics and these connections will help to put you on their radar when they are in need.

Look for organizations like the Association for Women in Communications and local tech or mobility companies. They regularly look for speakers and authors with expertise on topics related to social media, privacy, Terms of Use and related issues to present to their members. The same is true for trade associations. Organizations like BBB and "crime stoppers" also regularly need legal advice and you could be just who they are looking for.

There are many individual activists who encounter issues attempting to access records/meetings under state sunshine laws. Businesses also encounter issues obtaining public records. The former, in particular, would welcome the assistance of an attorney in these efforts. You could do this pro- or low-bono or, if your state allows the recovery of attorney fees for a successful case, you can obtain your fees after you win.

Be on the look-out for opportunities to lecture or teach at local educational institutions. Most journalism schools have a "law of the press" class and they may welcome a guest attorney lecturer. Writing an amicus brief is another way to establish expertise in the field and can add to your resume while you are learning an issue in detail.

Bring Home the Bacon

No matter where you practice, it is unlikely that a partner will simply fill your plate with the media cases of your dreams, and you will then be set for the rest of your career. Clients change counsel. Colleagues pursue other opportunities. Take the time to invest in yourself, contribute your time and effort to the media bar, pursue opportunities to build your expertise, and seek out non-traditional "content providers" as clients. If a farm girl in the Midwest can build a media practice this way - so can you!

Robin Luce Herrmann is a Shareholder based in Butzel Long's Bloomfield Hills, Michigan office, a former Practice Department Chair of Butzel Long's Litigation practice and the head of Butzel Long's Media group.

 
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