The Civil Process
Reporting the Civil Process
As in other areas of the law, problems lurk in reporting civil matters. Chief among these problems is the handling of petitions. None of the paper work in the civil process is privileged until they become part of the record of the trial itself.
A general rule is that the filing of a pleading is not in itself privileged for publication as the proceeding in a court and that the court must act upon the pleading to incorporate it into the trial before privilege exists.
However, civil suits may be newsworthy at the time they are filed and the immediacy of news dictates that something be reported.
Put more directly, the question is: What can be published safely (without libel) about a civil case when the defendant has not had the time to reply by way of his or her own petition of response?
If the intent is to publish a limited story without specific reference to the allegations of the pleader, the problem becomes academic. Such a story would give the nature of the action, who filed it, against whom. The careful writer would couch the story and avoid specific allegations.
Such an approach could be used in reporting the original petition and subsequent pleadings—first amended original petition, second amended, etc., or first answer, etc.
If the use of specific allegations of the pleader is desired the problem becomes more complicated. Used directly from the pleadings alone, allegations could be libelous.
The obligation, ethically and legally, is to talk with the defendant and ask for specific responses for every point. This is not as easy to do as it sounds. In some instances the defendant may not know that a suit has been filed or may not want to respond.
If the defendant chooses to respond, he or she must be given an opportunity to answer every allegation made by the plaintiff and used in the story. By providing the right of reply, a defense is created.
Some news organizations practice a policy of saying that they are unable to get in touch with the defendant. That statement does not absolve them of their responsibility to get the other side when reporting accusations. Such statements tell the critical readers, listeners and views just how poor the organization is at reporting.
If the defendant is informed and chooses to say “No comment,” that may be considered a response. However, a “No comment” should be gotten for every allegation used in the news story.
When every attempt has been made to locate the defendant and he or she cannot be found, a specific assessment as to the nature of the search should be used with the story. And the search should continue so that the defendant will be afforded an opportunity to respond.
Since anyone can file a suit on anything, reporters should be careful about what they decide to use in the original story. That a petition has been filed is no guarantee that a trial will ever occur. The petition could be withdrawn, a settlement could be reached, a judge in whose court the case is assigned could simply dismiss it.
On the other hand the suit may be eventually decided in behalf of the defendant. Therefore the media may be under at least ethical considerations to report on the dispensation of such a case when a story was used about the original petition.
The pleadings in the case are the papers the parties in a lawsuit file to establish their positions on the points at issue. The original petition is the first filing by a plaintiff, and that is the petition that initiates the suit. The defendant then must respond. Amended petitions may follow on both sides.
The pleadings are generally available. However, they are not privileged until they become part of the court record.
What takes so much time in the civil process is discovery. Under law, parties to a lawsuit are entitled to learn things from opponents and other witnesses.
This is done through both written questions, known as interrogatories, and transcribed and/or videotaped interviews under oath, known as depositions. Again, nothing in the process is privileged.
Rules of Civil Procedure provide that certain discovery materials are not to be filed with the court. Instead, they are held by the lawyers involved in the case. However, the rules provide an exception if the court deems certain discovery materials should be filed with the court. These rules were adopted in response to the storage problems of the clerks of trial courts.
Access to the discovery materials not filed with the court may be dependent on lawyers in the case. When access is not forthcoming, reporters may ask the judge to order the materials to be filed. If the judge refuses, a mandamus with an appellate court may be necessary.
Case law has yet to determine if interrogatories and depositions are privileged. Until that happens, the news media should proceed with care in the reporting of information based on those documents.
Mediation and Arbitration
The filing of a suit may lead to a negotiated or arbitrated settlement.
These proceedings, unlike trials, are not public and might or might not be confidential. For that reason, reporting about the process must take that into consideration
In mediation, the process is confidential. The parties may decide to agree or not. If agreement is not reached, a trial may result. If a mediated settlement is reached, the parties may consent to dismissal of the case. The terms of agreement could be confidential. But absent that confidentiality, the agreement will become part of the court record.
Arbitration can be either voluntary or court ordered. The process could involve one to three arbitrators. Arbitration usually is not open to the public.
Typically arbitration is binding. If the proceedings were ordered by the court, the court will enter the findings and they become part of the record of the case. Depending on the nature of the dispute, an agreed-upon arbitration might not be part of the public record.
The media are often guilty of placing too much emphasis on the amounts of money mentioned in original petitions. In many instances no specific money damages are mentioned. When they are, they sometimes are not realistic. The plaintiff is going to have to prove that he or she is entitled to the money before it is awarded. And, the judge may reduce the amount a jury awards.
The reporter should write the story about the original suit with emphasis on the points of controversy. If the amount of money is so staggering that the editors will think it worthy of inclusion in the lead, the reporter should include both the issues and the money near the beginning of the story.
Editors and headline writers should also be careful they do not fall into the trap of placing too much emphasis on obviously inflated money requests.
Another example is the nuisance suit. One of the ways the nuisance suit succeeds is that the media fall for it. The reason it’s called that is that the defendant has to go to some trouble getting the suit dismissed.
The examples of amounts in petitions and nuisance suits point up the responsibility of the media in handling petitions and pleadings. Willy nilly reporting can cause undue injury to a person or a business. Of such are libel suits made. Even if libel suits aren’t forthcoming, news media have to keep in mind ethical considerations. Otherwise, they can be considered to be irresponsible. That in the end affects the credibility of the media.
Implication of wrongful conduct in civil matters requires careful handling of evidence. Remember that before the trial these are merely allegations. Even when such allegations are proved in a trial, the result involves civil penalties and not criminal ones. Avoid using the terms guilt or guilty in a civil case.