Litigation Journal

A Life of Letters

The deputy general counsel for the New York Times explains why lawyering for the paper is not for the shy.

David E. McCraw

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My brief brush with Internet fame—and brief is exactly what you want when it comes to Internet fame—began with a letter I wrote one Thursday morning in October as the newsroom lawyer for the New York Times. The Times had just published a story detailing the accounts of two women who claimed that Donald Trump had groped them years earlier. I had reviewed a draft of the article. I found it well reported, a story that deserved to be told in the midst of a heated and often ugly presidential campaign.

Safe to say, Mr. Trump and his lawyers failed to share my enthusiasm for the piece. A few hours after the story went online, they publicly released a letter demanding a retraction and threatening to sue the Times for libel.

Lawyering for the Times is not for the shy. As soon as the Trump letter went out, the Internet began churning, with news stories and tweets and random postings, all speculating on how we would respond, what we would say, what the odds were of a lawsuit, and whether it would be the libel suit to end all libel suits.

So I sat down that Thursday morning between a meeting on our company’s emergency contingency plan and a conference call about a new patent case and typed out a terse three-paragraph response. The letter closed with these sentences: “We did what the law allows: We published newsworthy information about a subject of deep public concern. If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.”

Chutzpah? I never thought so. We were confident of our legal position. We don’t like to be threatened. Days or weeks of swapping lawyer letter after lawyer letter with the other side was going to achieve absolutely nothing. So I sent the letter, and the Times pushed it out on the Internet.

A Transparency Lawyer

I consider myself mainly a transparency lawyer. I devote most of my time to helping Times reporters get access to information that government agencies and others want to keep secret. I have filed more than two dozen Freedom of Information Act suits over the past eight years. But I didn’t realize just how big a believer I was in transparency until someone pointed out that my phone number and email address were on the version of the letter that the Times had publicly posted.

Not that I really needed to be told. My phone began ringing instantly. In the first 90 minutes after the letter went public, I received 90 emails. And that was when the pace picked up.

Within 48 hours, more than a million and half people had read the letter on the Times’s website. Millions of others read the letter through Twitter and Facebook and Instagram or found it posted on other sites or got it from friends. More than a thousand people sent me emails. Lawyers wrote to me from Canada, England, and Australia, and from across the United States. A few of them—hard core and old school to the end—wanted to know why my letter didn’t cite a single case.

But most were like the Indiana lawyer who praised it as “one of the most succinct, punchy and eloquent pieces of legal writing I have read in my career. I am an admirer and advocate of good writing in all forms (as my kids are tired of hearing).” Or as a California attorney wrote:

I just want to share my glee, as a retired lawyer from a motion picture studio who had to write a lifetime’s worth of low-key responses to my industry’s jerks, that your day-to-day hard work was rewarded with this rare opportunity to write what you truly feel and believe. . . . It’s a fine day when people in casual conversation are praising a corporate legal department.

That note, of course, captured the reality of the more typical play-by-play for those of us who are in-house lawyers and regularly on the receiving end of threatening letters. Muted corporate responses meet frothing incoming tirades. Lawyers who write to complain about the Times’s coverage can’t seem to help themselves. Words like “malicious,” “deliberate falsehood,” “impugn,” “utterly lacking,” and “reckless disregard” must be hot-keyed on their laptops. Never mind the client’s recent indictment. Never mind the videotape, the recordings, the documentary evidence, the 27 sources, the federal investigation, or the damning admissions. Never mind the First Amendment.

Do those sorts of flame-throwing letters, fact-free and blind to the law, count as chutzpah? Perhaps. But here’s the better question: Do they work? They may impress clients. In fact, I often think the most important words in a ranting complaint letter are the two that come right after the cc: the first and last names of the lawyer’s client.

But I learned early on in my career at the Times that there is almost a direct correlation between the speciousness of the complaint and the level of audacious self-righteousness contained in the letters I receive. I once got an impassioned letter from a lawyer complaining about how one of our local newspapers had covered the arrest of his client. Outrage poured forth, interspersed with protestations of his client’s innocence. What was odd—or perhaps telling—was that the lawyer never once mentioned exactly what his client had been arrested for.

I tracked the article down. It was a routine police story based on the police logs. The client had been accused of masturbating while his car was stopped at a red light next to a vehicle driven by a woman. When the police caught up with him, he assured them that it was all a tragic mistake. Nothing like that had happened. He was, he told the cops, just checking for tick bites. Perhaps a client with that kind of chutzpah deserves a lawyer with chutzpah too.

Audacity may be fun—who really wants to spend a life writing letters that begin “I am in receipt of your recent letter regarding Acme Chemicals, Ltd.”?—but the dreary truth is that saber rattling rarely works all that well. Maybe there are industries in which lawyers wilt in the face of empty threats and bombast, but I have yet to find one. In my case, the “big bad wolf” letters come rocketing in, promising to huff and puff and blow our house down, but in the end the house is still standing, the curtains barely moving.

Agree or disagree with the Times, our journalists are not character assassins willy-nilly impugning the reputations of companies or individuals as part of some thriller-worthy conspiracy. We sometimes get it wrong, but inevitably the mistakes are the product of honest errors in reporting or writing or editing.

Libel Suits Are Rare

And then there is the legal reality. We haven’t settled a domestic libel suit for money in at least five decades, going back to the Supreme Court’s groundbreaking decision in Times v. Sullivan, and perhaps even further. Sullivan opened the door to hundreds of other decisions in both the state and federal courts expanding the protection the press enjoys against libel suits, even when articles are inaccurate. The result has been exactly what the Sullivan court hoped for: Libel suits are rare; winning ones are even rarer.

That is why the letters that give me pause come from lawyers who have actually spent some time thinking strategically—about who we are, what is likely to move us, what the law says, and what they realistically can hope to achieve for their clients. I have spent hours with Wall Street lawyers going over financial records and getting schooled on accounting and securities law. It’s a decidedly bluster-free (and fun-free) session, and no one walks away thinking it is all some lawyer’s bluff. Published corrections tend to follow.

Too often, though, lawyers play it just the opposite. I came back from vacation once to find a sternly worded letter from a lawyer who complained that a Times story had falsely portrayed her client as having engaged in commercial fraud on the Internet. “Your paper’s personal attacks . . . are reckless, without any basis in law or fact, and constitute libel per se,” the lawyer wrote.

Freshly returned from vacation, I was in no mood to learn that we had somehow royally screwed up a story. And that was when I found online the consent decree that the lawyer’s client had entered into with a state attorney general. The one with the client’s signature affixed to the bottom. The one in which he personally agreed to stop engaging in a variety of deceptive practices and to refund money to everyone who filed a complaint. It was not going to be quick work. More than a thousand consumers had contacted the Better Business Bureau.

It was an easy response to write. There may have been some post-vacation glee involved. “Perhaps your client did not provide you with the attached documents from his litigation with the attorney general,” I suggested helpfully at one point.

The urge to be audacious undoubtedly blossoms when disputes become public. A few months before my Trump letter went viral, the Times found itself in a very public standoff with the National Football League (NFL). We had run a story tracing how the NFL’s response to research on concussions resembled the tobacco industry’s response to research linking smoking to cancer, and we reported on some of the connections between the tobacco industry and the NFL. The league posted a long lawyer letter saying it intended to sue us unless we retracted the story and took it down from the Internet. I responded with a letter of my own, pushing back on the league for—as I saw it—trying to silence critics and keep fans in the dark. Sports being sports, and lawyers being lawyers, the Internet loved the exchange. It was the first time I ever found my work being handicapped by both legal blogs and sports columnists.

In drafting my response, I had been struck by the letters that the NFL’s lawyers had sent, in particular, a reference to how odious the tobacco industry was. For the Times to associate the NFL with such corporate pariahs was egregious, the lawyers said. Only, I remembered that a few years earlier the same law firm had represented one of the big tobacco companies in the famous Racketeer Influenced and Corrupt Organizations (RICO) suit brought by the Department of Justice over the tobacco industry’s misrepresentations of smoking’s health risks. The lawyers had never mentioned that connection in their letters to the Times. I couldn’t let it pass. “While your earlier letter to The Times called the tobacco industry ‘perhaps the most odious industry in American history,’ you somehow fail to mention in either letter that it was your firm that represented Philip Morris in that RICO case.”

Chutzpah? Enter two guilty pleas on that one.

But that is not my usual approach. I rarely find it useful to respond in kind to the flaming lawyer letter. Just the opposite, in fact. More typically, I invite the lawyer on the other side to talk through the facts, and I try to be sympathetic. If we got something wrong, we should set the record straight. In some cases, the conversation and letters can flow for weeks on end. I know this approach often puzzles or disappoints my clients in the newsroom. They prefer the curt “see you in court” response. And so would I—if I didn’t have to care about what actually worked in the real world.

Years ago, in a taped interview, a famous businessman told one of our reporters that I had a “great bedside manner.” How so? the reporter wanted to know. The businessman had intended to sue the Times over a story, he explained, but I had “lulled” his lawyer into complacency for weeks by having pleasant phone conversations about the story and the possibility that we could do a correction if only the lawyer could provide a little more documentation. The phone calls went on and on. Finally, the lawyer had heard enough and asked the businessman whether he wanted to go ahead with the lawsuit.

There was just one problem. The businessman couldn’t quite recall what we had written in the story. “I have a photographic memory. I have a great memory,” he told the reporter. “[But] I don’t even remember what the [expletive] you said . . . and I’m the object of the story. So I say to myself, if I have this unbelievable memory and I had to think back to what it said. . . . What the. . . .” And that was the end of it.

No suit ever came. But a decade later, that businessman did become the president of the United States.

As far as I know, he has never been accused of lacking chutzpah.

David E. McCraw

The author is vice president and deputy general counsel at the New York Times Company.