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10 Questions to a Media Lawyer: Jeff Portnoy

Jeff Portnoy is a partner at Cades Schutte in Honolulu.

1. How'd you get into media law? What was your first job?

I had a journalism minor. I took a course at Duke Law School in the First Amendment and that led to the opportunity to become involved in media law.

My first job is where I am right now. I'm in my 48th year at the law firm of Cades Schutte in Honolulu where I specialize in civil litigation defense – primarily medical and legal malpractice, product liability, bad faith and other related litigation matters on the defense side. But my involvement in media law is really my passion. It's changed a lot over the years – local media became part of national media and the money available to attorneys to challenge media related problems has dried up. (Only about five percent of my work these days is media related.)

But out of law school, it was a different world and I was fortunate to join a law firm that represented the Honolulu Advertiser, the major newspaper at the time. I was asked to help the senior partner on a defamation case very early. Eventually I became their primary counsel. I've also represented virtually every television and radio station, magazine, and neighbor island newspaper in Hawaii.

2. What do you like most about your job? What do you like least?

Media law is my favorite part of my practice. It's also the most significant, it affects the most people. Most other cases I do affect the parties to that litigation. Yes, occasionally you make law one way or another that will impact other people, but none of the matters come close to having the statewide impact that the media cases do. Not necessarily defamation, which oftentimes only concerns the parties, but all of the access cases I've had over the years – access to courts, to state government meetings and records – those impact everyone. And several of those relate not only to statutory issues, but occasionally to constitutional issues as well.

What do I like least? Very little as it relates to media other than the drying up of opportunities. Virtually none of the media in Hawaii is now locally owned, and mainland operations just don't give the same support that we had. Things that would've been challenged years ago now go unchallenged. That doesn't mean that the media here, particularly the Star Advertiser, is not doing anything. But the television stations have virtually dropped off the map when it comes to First Amendment challenges on access and related issues. The magazines will occasionally write investigative pieces where they'll ask for pre-publication review. But overall the work has significantly dropped off.

3. What's the biggest blunder you've committed on the job?

It's not a media blunder, but the one that caused me the most angst was missing a statute of limitations. It was a personal injury case in my second year lawyering. I missed the deadline by about a week. I was devastated, thought it was the end of my career. But fortunately, Hawaii is a small town. I had a relationship with the lawyer on the other side, and after extensive discussions, they agreed to permit the matter to proceed. I was very lucky.

However, my calendar is now done in pen in a real book. It's backed up by the firm on its computer. But as I tell my staff, if it's not in my notebook calendar, it doesn't exist. And that came from that mistake 46 years ago.

4. Highest court you've argued in or most high profile case?

In the Ninth Circuit, I argued the Kamakana police misconduct case which deals with access to federal courts – when courts can be closed, when records can be sealed. It generated a profound decision on what federal judges need to do before they can either close a courtroom or deny access to records. It took over three years, but it was a total, convincing victory for the newspaper.

I've had cases at the Hawaii Supreme Court on fair comment, public figures, and defamation. There have also been several access cases in which the Hawaii Supreme Court has warned Circuit and District Court judges about failures to properly follow procedures.

5. What's a surprising object in your office?

It's not just an office, but an office and the conference room next door, now called my "annex." I've had several magazines write articles about it. It's filled with literally hundreds of pieces of memorabilia, mostly sports. As a sideline for the past 26 years, I've been color commentator for the University of Hawaii basketball on radio. I have autographed basketballs from almost every big-name basketball coach - from Mike Krzyzewski, Roy Williams, Dean Smith, Jim Boeheim and many others. I also have basketball net on a basket and a bunch of autographed photographs. I'm also a huge Dodgers fan so I've got a ton of Dodgers memorabilia as well.

6. Favorite sources for news – legal or otherwise?

I'm not a big computer person so I'm not on Facebook or Twitter. I mostly watch MSNBC and CNN at night and subscribe to the Washington Post and the Sunday New York Times.

7. It's almost a cliché for lawyers to tell those contemplating law school: "Don't go." What do you think?

I'm mixed. I'm asked the question a lot – not only by parents whose kids are considering law school, but also by law students trying to decide what to do with their degree. (I teach an advanced constitutional law course at the William S. Richardson School of Law in Honolulu.) I think the profession is changing dramatically, however I'm out in the in the middle of the Pacific so it's hard to comment.

It really depends on the person. There are so many paths: you could be a lawyer at a thousand-person law firm, or go somewhere much smaller, or do legal aid. When I was in law school I was convinced I was going into legal aid. I worked legal aid in Durham and had multiple legal aid jobs lined up when this job in Hawaii opened up. It was a fluke. But I took it and I'm still here. Maybe I'm a bit of a hypocrite.

I guess you just go where your passion is. And if you think your passion is the law – and there's a lot of reasons for it to be – then go. But I wouldn't go just to make a lot of money, although that's not a bad idea either.

8. Favorite fictional lawyer?

Joe Pesci in My Cousin Vinny. He showed you don't have to go to law school to convince a jury. In a more serious vein, Atticus Finch of To Kill a Mockingbird. He's a tremendous fictional ideal of what a lawyer can do. I see him relating to my legal aid background and the media work I do.

9. What issue keeps you up at night?

The position of the President and his Attorney General regarding executive privilege has turned the rule of law on its head. That's what keeps me up. We're in a terrible situation regarding leadership, separation of powers, and the rule of law. I think the bastion of this is the federal courts. Unfortunately, just as we most need an independent judiciary, it's becoming less and less so.

10. What would you have done if you hadn't been a lawyer?

I was almost a professional drummer. I was in a band in high school that made a record and I got to back up Tom Jones in concert.

I also thought about being a journalist. I was a journalism minor. But it's funny how it turns out. I applied to the Woodrow Wilson School of Government at Princeton and didn't get in. I applied to Northwestern's School of Speech to be an actor and I didn't get in. I got into lots of other schools. I got a political science degree and then was fortunate enough to get into Duke Law School. So that's how things worked out.

 
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