Susan L. Turley*
You talkin' to me? You talkin' to me? You talkin' to me? 2
For lawyers doing scholarly research, the answer frequently is "no." Legal researchers often seem wedded to the memorialized, printed word, leaving them reluctant to look elsewhere.3 While valid reasons support a general preference for documents as source material, legal writers do themselves, their audience, and the profession a disservice when they fail to explore all research options.
One of those options is the interview, defined as, among other things, a "conversation, such as one conducted by a reporter, in which facts or statements are elicited from another."4 Lawyers at times relegate interviews to client intake or counseling sessions or to witness preparation— or they view them, as does the dictionary, as the purview only of reporters and others charged with newsgathering.
Such a perspective, however, ignores the similarities between the law and journalism. It also overlooks the realities of what legal writers should hope to accomplish through legal research and writing and how interviewing can help achieve those goals. This article posits that interviewing people is a valuable yet underutilized research tool. To do so, it briefly examines the parallels between journalism and the law and explores why the law often seems to prefer print over people. It then discusses how and why interviews have proven worthwhile in legal research and how they can be even more useful. After looking at the interviewing training (or lack thereof ) that lawyers receive, the article closes with suggestions for effective interviewing, including examples from the author's own experiences.
Parallels Between Law and Journalism
Almost 50 years ago, writer Norman Mailer said, "Once a newspaper touches a story, the facts are lost forever, even to the protagonists."5 While perhaps some would apply the same sentiment to lawyers, that quality is not where the only similarities lie.6 Ultimately, both professions are—or should be—about storytelling.7 Journalists have for years clung to the "just the facts" theory of objectivity, but even with that premise, the most compelling news reports are those that harness narration's impact.8 The very act of choosing which facts to report and how to report them not only influences the article's slant, but shapes its narrative power.9
For lawyers, the field abounds with tips on using storytelling to enhance advocacy.10 Depending on the forum, a lawyer may be free to choose which facts to highlight, or he may have to decide how to impart or control unfavorable or unpleasant information. Again, the very ways an attorney obtains and conveys the facts will impact both his advocacy's message and its result.
Both the legal writer and the journalist have numerous constraints: deadline pressures, restricted time or space in which to convey information, concerns about the data's accuracy, and a limited attention span on the part of the recipient, who often knows little or nothing about the subject at hand—and sometimes cares even less. Persuasive storytelling, rooted in efficient research and preparation, can overcome many of these obstacles for both professions.
News reports (as opposed to analysis, opinion, or other similar articles) seldom rely on anything other than first-hand accounts, quotes the reporter obtained directly from the source and the occasional official government document (e.g., police reports or court filings). Reporters understand that the best way to harness the power of storytelling is to find someone with a good story—and have him tell it.
To practice law, all attorneys have to gather stories from people, most fundamentally clients and witnesses. Recognizing this, most law schools offer training in client interviews.11 Outside the clinical setting, however— for example, in scholarly research—legal writers seem hesitant to cite conversations with living, breathing sources in their footnotes.12
Preference for Print over People
This hesitance, to some extent, grows out of the legal profession's dichotomy between preferred sources for in-court proof and substantiation for scholarly writing and research. In court, advocates seek the "best" or "primary" evidence—generally the original;13 when it comes to testimony, the law explicitly favors hearing from the original source in person.14 Outside the courtroom, live "testimony" will admittedly not always be the "best evidence" for legal scholars. Yet, just as courtroom advocates must evaluate and select from a number of tactics for presenting their case, legal scholars should also—but generally do not— assess whether to use interviews in scholarly research and writing.15
In some cases, of course, a researcher cannot conduct an interview because the source is dead or otherwise unavailable.16 One way to resolve the debate over what Thomas Jefferson meant when he wrote about "building a wall of separation between Church & State"17 would be to ask Jefferson himself. Lacking that ability, scholars generally rely on published materials. Another reason legal writers may depend exclusively on written documents is the justifiable priority given to the sources of primary authority—"statutes, constitutions, administrative regulations issued pursuant to enabling legislation, and case law"—that are binding on courts (and thus most compelling).18 This rationale, however, loses validity when applied to secondary sources or materials.
Consider the Bluebook's order of secondary sources within each signal. Books are second, followed by journals, while newspapers are a middling seventh. Interviews do not merit even a specific call-out but fall under "unpublished materials not forthcoming," which occupies the penultimate slot (surpassing only electronic sources).19 What makes a book or journal more authoritative than an in-person interview?
One response might be that books and journals, before publication, were scrupulously researched by the authors and rigorously reviewed by editors, and afterwards, withstood public scrutiny and gained public acceptance. Or put another way, age and examination equals reliability— just as the longer a decision has stood even after being reviewed and the more often others have cited it as authority, the greater the precedential value.
However, neither publication nor a wide readership makes a written work infallible. The New York Times, considered by most other media to be the "most revered newspaper" in the United States,20 had to admit in 2003 that one of its reporters had plagiarized, lied or otherwise deceived the newspaper and its readers in about half the articles he wrote.21 On the other hand, The National Enquirer, considered by many to epitomize tabloid journalism, claims to be "the best selling newspaper in America," with a readership of more than 9.7 million.22 The Enquirer, the newspaper asserts, "has been getting it first, getting it fast and getting it right for over 70 years,"23 yet lawsuits for defamation, libel or other inaccuracies against the tabloid are a frequent occurrence.24
Similarly, the passage of time may mean only that the flaws in a written work have not yet been discovered. It took more than 25 years for some cases of plagiarism by Steven Ambrose, author of Band of Brothers, to surface.25 James Frey's purported memoir, AMillion Little Pieces, hit the publicity jackpot—Oprah Winfrey's selection for her book club—before it was exposed as a lie three years after it was published in 2003.26
It is simply specious to argue that works that were written decades or even centuries ago are, simply by virtue of their age and apparent public acceptance, somehow more authoritative, reliable references. The truth is people lie,27 cheat and steal—and they have done so for hundreds of years.28 The corollary is that some lies and inaccuracies have become accepted as truth only because earlier societies lacked the tools to expose them, whereas today's technology has made it easier—and quicker—both to deceive or take literary shortcuts and to catch the perpetrators.29
While it may be an interesting intellectual exercise to imagine how many "classics" might lose that title if the Internet had existed when they were written, this article is not intended to attack the validity of published materials as source documents. Nor will every research and writing endeavor benefit from interviews. The point is that printed works should not be the lawyer's only research references, because interviews offer unique advantages that attorneys should at least consider when they begin their research.
1 The word origin for interview reveals this meaning: "French entrevue, from Old French, from feminine past participle of entrevoir, to see: entre-, between (from Latin inter-; see inter-) + voir, to see . . . ." American Heritage Dictionary of the English Language (4th ed., Houghton Mifflin 2009) (available at Dictionary.com, http://dictionary.reference.com/browse/interview).
* © Susan L. Turley 2010. Attorney-Advisor, Legal Information Services, Air Force Legal Operations Agency. Special thanks to Colonel Pete Marksteiner, U.S. Air Force, and Steve Feldman, Army Corps of Engineers, for their encouragement and comments on early drafts of this article; and to the Journal's editorial staff, especially Ian Gallacher, for their extremely useful critiques; and most importantly, for their willingness to publish an article by someone outside academia. The views expressed are those of the author and do not represent the official views of the Department of Defense, the U.S. Air Force, or any of its organizations.
2 Taxi Driver (Columbia Pictures 1976) (motion picture).
3 While it is difficult to prove a negative, see e.g. Roy M. Mersky & Donald J. Dunn, Fundamentals of Legal Research (8th ed., Found. Press 2002); S. Ill. U. Sch. of L. Lib. Research and How to Guides, http://www.law.siu.edu/lawlib/guides/ (accessed Dec. 16, 2009). Neither discusses interviewing as a legal research method. One research text does provide a short, indirect mention, noting that sometimes "it may be more efficient to send an e-mail or make a telephone call" as a beginning research step. Morris L. Cohen & Dent C. Olson, Legal Research in a Nutshell 16 (8th ed., West 2003). "The ABA describes legal research as, among other things, including a familiarity with, and relationship between, the following: case law; statutes; administrative regulations and decisions; rules of court; restatements; and secondary legal materials such as treatises, digests, annotated code compilations and loose-leaf services." Patrick Meyer, Law Firm Legal Research Requirements for New Attorneys, 101 L. Lib. J. 297, 299 (2009). Interviews are not on the list, nor are they discussed anywhere in the article, which focuses on issues such as "the need to take an integrated approach to research (not relying solely on online research, but using print and online sources interchangeably) and to learn why and when to use secondary sources and finding aids." Id. at 303.
4 See American Heritage Dictionary, supra n. 1, at "interview."
5 The Quotations Page, Quotations by Subject: Journalism, http://www.quotationspage.com/ subjects/journalism/(accessed Dec. 17, 2009).
6 An online search for "lawyer turned journalist" returns crossovers such as CNN staffer Jeffrey Toobin, a Harvard Law School graduate who notes his surprise that "there are people going to law school because they want careers on television." Diane Clehane, SoWhat Do You Do, Jeffrey Toobin, Author? www.mediabistro.com/articles/cache/a9909.asp (Oct. 10, 2007). On the flip side, the general counsel of Gannett Co. is a former journalist who became an attorney. Gannett Co., Kurt Wimmer Named Gannett Senior Vice President, General Counsel, http://www.gannett.com/news/pressrelease/ 2006/pr072506b.htm (July 25, 2006).
7 See e.g. Richard K. Sherwin, The Narrative Construction of Legal Reality, 6 J. ALWD 88, 93 (2009) (discussing the "heightened sensitivity to the importance and persuasiveness of storytelling in the law"); Nancy Levitt, Legal Storytelling: The Theory and the Practice—Reflective Writing Across the Curriculum, 15 Leg. Writing 253 (2009).
8 A good example is the opening of this 2008 Pulitzer Prize winner for breaking news reporting: BLACKSBURG, Va., April 16—An outburst of gunfire at a Virginia Tech dormitory, followed two hours later by a ruthless string of attacks at a classroom building, killed 32 students, faculty and staff and left about 30 others injured yesterday in the deadliest shooting rampage in the nation's history. The shooter, whose name was not released last night, wore blue jeans, a blue jacket and a vest holding ammunition, witnesses said. He carried a 9mm semiautomatic and a .22-caliber handgun, both with the serial numbers obliterated, federal law enforcement officials said. Witnesses described the shooter as a young man of Asian descent—a silent killer who was calm and showed no expression as he pursued and shot his victims. He killed himself as police closed in. Ian Shapira & Tom Jackman, Gunman Kills 32 at Virginia Tech in Deadliest Shooting in U.S. History,Wash. Post A1 (Apr. 17, 2007) (available at http://www.pulitzer.org/archives/7803).
9 Consider the difference in describing hundreds of people as a "large group," a "tightly packed crowd," a "teeming mob," or a "huddled mass." See also Christopher T. Caldiero, Crisis Storytelling: Fisher's Narrative Paradigm and News Reporting, 9 Am. Comm. J. (Spring 2007) (asserting that reporters use certain "narrative types . . . regardless of the specific crisis being covered").
10 E.g. Faculty, The Judge Advocate General's School, U.S. Army, The Art of Storytelling, Army Law. 30 (Oct. 1999); John D. Mooy, Advocacy and the Art of Storytelling, (NITA 1991) (DVD); Symposium, Once Upon a Legal Time: Developing the Skills of Storytelling in Law, 14 Leg. Writing 1 (2008); see also sources cited in supra n. 7.
11William and Mary Law School, for example, has a "Legal Skills Program" in which students conduct an initial (simulated) client interview, document the results, draft a memo, and then conduct a follow-up interview with the client. William & Mary Law School, Legal Skills Program, Curricula Details, Legal Skills I Criteria, http://newlaw.wm.edu/academics/ programs/jd/requirements/legalskills/curriculardetails/index.php (accessed Dec. 22, 2009). See also Roy Stuckey et al., Best Practices for Legal Education: A Vision and a Road Map 62 (2007) (stating that interviewing skills are one of the fundamentals of the "craft of law"); infra nn. 77–90 and accompanying text.
12 See Michael DeStefano Beardslee, Advocacy in the Court of Public Opinion, Installment One: Broadening the Role of Corporate Attorneys, 22 Geo. J. Leg. Ethics 1259, 1263 n. 9 (citing a study in which the "editors mention interviews of lawyers, judges and journalists but fail to explain any details, interview methodology, or the number of interviews"); Robert Richards & Nancy Ross, Practical Issues in Assignments for the Benefit of Creditors, 17 Am. Bankr. Inst. L. Rev. 5, 5 n. a1 (2009). In that footnote, Richards and Ross similarly acknowledge "the valuable input from interviews with many others about their practical experiences with ABCs" (assignments for the benefit of creditors). Yet they do not cite a single interview in their ninety footnotes. That is not to say that the sources they do cite are lacking—they are not, as they consist almost entirely of case law, statutes, and law reviews. However, it does leave one wondering what "valuable input" these interviews in fact provided.
13 See Black's Law Dictionary 160 (6th ed., West 1990) (discussing "best evidence" and the "best evidence rule").
14 Id. at 722 (explaining hearsay's "weakness" under the law and thus its general inadmissibility).
15 A Westlaw query for the word "interview" in the Harvard Law Review over the last three years returned 42 results, of which only seven involved interviews the authors themselves conducted with sources. Search conducted Sept. 8, 2009 (results on file with Author). Results of the same search in the Stanford Law Review were similar—out of 45 articles, only eight used author-conducted interviews. Id. A search among all U.S. law reviews and journals published in the past five years on Lexis for "interview" in the same sentence as "research" produced 1544 articles. Id. Not one dealt with interviewing as a research method outside of the witness or subject interview (for example, forensic interviewing of child victims). Id.; see also supra n. 3 (noting the lack of discussion of interviews as a research method in several texts).
16 See Social Work Research and Evaluation: Quantitative and Qualitative Approaches 248 (Richard M. Grinnell Jr. & Yvonne A. Unrau eds., 7th ed., Oxford U. Press 2005) ("An obvious limitation of research interviews is that the investigators may have a hard time getting to the interviewees.") For many footnotes, I have deliberately used non-legal sources because interviewing is a well-accepted research method within the social sciences. See infra nn. 71–75 and accompanying text.
17 Ltr. from Thomas Jefferson to Nehemiah Dodge et al., (Jan. 1, 1802) (available at http://www.loc.gov/loc/lcib/ 9806/danpre.html).
18 Mersky & Dunn, supra n. 3, at xxxiv.
19 The Bluebook: A Uniform System of Citation 51, 148 (Colum. L. Rev. Assn. et al. eds., 18th ed., Harv. L. Rev. 2005).
20 Paul Harris, America's Most Revered Newspaper Is Latest to Be Hit by Financial Woes, Observer, http://www.guardian .co.uk/media/2009/jan/11/new-york-times-credit-crunch (Jan. 11, 2009) ("It is hard to overstate the place that the New York Times holds in American journalism.").
21 Jayson Blair wrote for the newspaper for nearly four years. During that time, "[h]e fabricated comments. He concocted scenes. He lifted material from other newspapers and wire services. He selected details from photographs to create the impression he had been somewhere or seen someone, when he had not." Times Reporter Who Resigned Leaves Long Trail of Deception, N.Y. Times N1 (May 11, 2003).
22 The Nat'l Enquirer, 2009 Direct Response, http://search.rja-ads.com/pdfs/demographics/natenq-demographics.pdf (accessed Dec. 29, 2009).
24 See e.g. Iver Peterson, The National Enquirer Cuts Back on Sensationalism, but Is Still Haunted by Its Past, N.Y. Times D11 (Sept. 8, 1997) (noting that celebrities had recently filed six lawsuits against the paper).
25 Ambrose was first accused of plagiarizing passages in his book The Wild Blue. Fred Barnes, Stephen Ambrose, Copycat, The Wkly. Stand. 27 (Jan. 14, 2002). Later, reporters discovered four other cases of plagiarism in that book and other Ambrose books written between 1975 and 1997. David Plotz, The Plagiarist: Why Stephen Ambrose Is a Vampire, http://www.slate.com/?id=2060618 (Jan. 11, 2002).
26 See Evgenia Peretz, James Frey's Morning After, Vanity Fair, http://www.vanityfair.com/culture/features/2008/06/ frey200806 (June 2008) (discussing the events leading up to the publishing scandal and Frey's life afterwards). These examples are just two of the more public incidents of deliberate deception in published works; space does not allow compiling an exhaustive or even representative list.
27 Apparently they lie not only in the books they write, but about the books they read. A 2009 survey found that two-thirds of British readers have misrepresented their reading habits. The most lied-about book was George Orwell's "1984," while the Bible came in fourth on the top 10 list. Most Britons Have Lied about the Books They Read, Reuters (Mar. 5, 2009) (available at http://uk.reuters.com/article/lifestyleMolt/idUKTRE5244Q220090305?sp=true).
28As Samuel Johnson supposedly said in the eighteenth century: "Your manuscript is both good and original. But the part that is good is not original, and the part that is original is not good." The Samuel Johnson Sound Bite Page, http://www.samueljohnson.com/apocryph.html#3 (accessed Dec. 22, 2009). Ironically, the site also notes that this comment is not found in any of Johnson's works or biographies. Id. Admittedly, many well-respected authors have found themselves accused of plagiarism. For example, Clausewitz's "On War," written between 1815 and 1831 (Carl von Clausewitz, On War (Peter Paret & Michael Howard trans., Princeton U. Press 1976)), is perhaps one of the most revered works in American military studies. See e.g. Christopher Bassford, Clausewitz in English: The Reception of Clausewitz in Britain and America, 1815–1945, 3 (Oxford U. Press 1994) (calling the book "the bible of many thoughtful soldiers" and a "major, direct influence on American military doctrinal writing"). However, a contemporary, Swiss military theorist Antoine-Henri Jomini, accused Clausewitz of plagiarizing his works. Antulio J. Echevarria II, Clausewitz and Contemporary War 19 n. 31 (Oxford U. Press 2007) (noting that Jomini called Clausewitz an "unscrupulous plagiarist, pillaging his predecessors").
29 See e.g. Andrew Beck et al., Communication Studies: The Essential Introduction 19 (2002) ("Widespread access to the Internet has made plagiarism more prevalent in some academic disciplines."); Kimberly Chase, Teachers Fight against Internet Plagiarism, Christian Sci. Monitor 12 (Mar. 2, 2004) ("Across the country, educators have become savvier about using a combination of in-class writing samples, Internet search engines, and antiplagiarism technology to beat the cheating scourge.").