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Workshop:The Consequences of a Job Well Done
(Or, How I Had To Stand Up and Defend My Work- Giving A Deposition.)
by
Anne Phyllis Pinzow

Anne Phyllis Pinzow is a script writer who makes her main living as a newspaper reporter and editor.  

An article she wrote that could be classed as an expose embroiled her in a court case.  Here is the story, a cautionary tale to anyone launching a career in reporting.  

 

Date: Wednesday, May 05, 2004 11:18 AM
Thereís a reason everybody thinks Erin Brokovitch was such a gutsy lady. She
was, and Iíll be the first to state, Iím not.

Most of us arenít but Iíve had my nose rubbed in the fact that Iím not her,
could never be and really, donít want to be her. And the more this happens,
the more I admire what she did.

The movies, even film noir and docudramas canít help but romanticize
crusades, the underdogís struggle and the good fight.

But Iíve been living my life for the past few months on the edge of my
nerves, terrified that though I know I had done the right thing, that I did
a good job, that I may be paying the rest of my life, such as it is, for the
consequences of going that extra step for an article.

Our backgrounds are totally different. I donít have children, though I am
divorced, just once. I do have a fairly decent education but thereís no way
anyone with a sense of market value would put me in front of a camera.

The only thing I can think of that we have in common is that we went that
little extra distance, she a lot more than me. She won big. Iím not so sure
what will happen with me but the concept of winning is null.

Now that the obligatory throat clearing is completed, on to the story.

It was about four years ago when I was assigned to cover a beat that
comprised three small towns and one huge one, sprawled over two states.

This involved attending town board or council meetings, depending on the
state. It was at one such meeting that I met the mayor of a small town who
told me of a problem he was in the process of petitioning the state for
funds to check out.

A middle-aged man had told the mayor that when he was a kid, he worked for a
company that had buried 55-gallon drums in the back of its place of
business, which happened to be adjacent to a stream.

The man hadnít given much thought to it over the years but had recently
developed concerns that maybe, what was in the drums might be hazardous
waste.

Some soil tests were authorized and whatever had been in the drums
definitely did contain substances that had been found in 60 parts per
billion to be associated with cancer in tests with mice. (Note to readers:
Notice here the parameters Iím using to explain this. Youíll be tested
later.)

I wonít bore you with the details of the politics, finances,
environmental investigations, chemistry and biology of the whole thing,
which went on for more than a year.

Leave us say that by the end of this, more than 1,000 barrels had been
found, most of them corroded to the point of collapsing upon touch. Some
still had some of the substances still in them but the bottom barrels had
been crushed by the weight of the upper ones and the substances had entered
the soil and gotten into the ground water. A plume of material had traveled 
and had continued to be generated for some 30 years and there is no telling
how many peopleís lives had been touched by cancer because of it.

This turned out to be the largest underground toxic waste dump in the
country.

On the upside, most of the homes in the surrounding area had all been on
town water and so very few had been exposed. But there were those who were
and the results were horrendous.
Unfortunately, the perpetrator of these events was thought dead by all the
authorities.
Enter yours truly.
I got an anonymous tip. Now that part was pretty much like it is in the
movies: plain white envelope, a few cryptic words, signed with initials, no
postmark, no way of tracing where it came from.

I followed where the tip led and low and behold, I found the guy. He was
alive and living well across the country.

Being an avid fan of television drama, I wanted to make sure that I did not
damage any potential legal actions that could be taken against this person
so I contacted the mayor of the town, who told me later that he nearly
fainted when I told him my news.

He contacted the EPA and the DEP. I faxed them the tip and they crawled with
it.

Okay, up until this point I was just being a somewhat decent human being
doing what I hoped was a fairly decent job.  Then I decided to take the next
step. I asked the chief investigator if it would hurt the case if I called 
the guy and interviewed him. 
You see, he didnít yet know he was being investigated and I didnít want 
to be the instrument of tipping the stateís and federal governmentís 
hands. So maybe I was being over dramatic but hey, if I saw a
bloody knife sticking in the gut of someone, I certainly wouldnít try to
remove it, thanks to television. Would you?

To my shock, the investigator gave me the go ahead and I made the soon to be
infamous call during which the ďperpetratorĒ admitted to me over the phone
that he was the person who owned the factory and he had with full knowledge
buried the barrels.

I printed the story. I was in the spotlight for my obligatory 15 minutes and
even had major news networks calling me. Hey, I was even given a civic
award. Nice. It didnít change my life, no one was begging me to come work
for them, and for a time people were actually comparing me to dear EB.

That was then, this is now.

The case has finally gotten to the point were depositions are being taken
and thatís when the phone calls started.
The investigative and legislative arm of the state dealing with the 
pollution had its representatives calling me about giving a deposition, 
a precursor to testifying in court.
 

For those of you who have never had this experience, when you give a 
deposition, you are placed under oath and though no judge is present, 
you do this before the lawyers of all involved and for all intents and 
purposes you are testifying in court. There is even cross examination.
Iíll tell you, when I wanted to get a statement from the higher ups I had to
settle for the lower downs nine times out of nine.

Now, the higher ups were calling me.
First they wanted me to testify.

Then they said they didnít need me to testify.

Then they wanted me to testify.

Then one said no and another said yes.

Then I was asked why I wouldnít testify???????

Then I was told I would definitely not need to testify.

I think you get the picture.  I could count on a call a month about this.

What I didnít count on was a call from the mayor of that town asking me to
testify and then telling me that all the other reporters, on the
instructions of their newspapers had declined.

Did they know something I didnít? Undoubtedly.  So I emailed said former
employer to find out where I stood legally in all this.

What I got back was another fairly cryptic email telling me that since I
didnít work for him, he couldnít tell me what to do. He also said that his
lawyer had fought a subpoena on grounds that it violated First Amendment
Rights (darned if I could figure that one out, but Iím not a lawyer) and
that if I did testify I would no doubt make trouble for myself and for him.

Just what I needed: more threats and ambiguity.

As Iíve stated in previous articles about journalism, people will only tell
you what will in some way benefit them, what they want you to hear.

Iíve rarely met anyone who will actually tell you something that will help
you without benefiting his own agenda.

I did some research and came up with the shaky conclusion that unless I was
willing to place myself under another stateís jurisdiction (weíre talking
civil litigation, not criminal), then I really couldnít be subpoenaed to
testify in another state, but I may be wrong.

Libel laws, depending on the state, do have a one to four year statute of
limitations but thereís tons of case law and parameters defining a plethora
of situations which in no way am I capable of unraveling.

There was no way in this lifetime I could afford an attorney (knight in
shining armor type person) to make any sense of all of this.

Then I got a cryptic phone call from my former editor.

The paper would stand behind what I had written (actually, they paid for the
articles and printed them so they really didnít have much choice in that.)
However, did I know that the plaintiffís lawyers were suing everyone who
testified against them and my life, as I knew it would most likely be at an
end if I did testify.

Hmm, is that a bad thing?

I had not run a surveillance staying out to all hours of the night eating
cold take-out with a chain-smoking partner (secret super hero depending on
genre) who I secretly loved but was waiting for him to come to his senses
and dump his dumb skinny blond amour.

Never had I chased a drug-dealing scumbag or unreliable source to the ends
of some Middle Eastern hellhole in search of that one elusive fact that
would save the world, only to be captured and tortured for information I
didnít have.

Well, okay, I had spent literally dozens of the wee hours on the Internet
from the comfort of my home computer searching for the elusive polluter, but
a girlís got to have some fun.

In short, I did not think I deserved this grief.

After several more phone calls of the ďyes you do,Ē ďno you donítĒ variety,
an appointment was made for the ďyes you do,Ē and then cancelled.

Then another appointment was made and I was told to bring a snack, or lunch
because I was likely to be there a long time, but it probably wouldnít be
more than a couple of hours.

Wasnít that clearer than mud?

To say that I was a nervous wreck would be like saying, well, I was a
nervous wreck.

But the fun had only just begun. Me in a tiny room with seven lawyers and
none of them mine. If any one of them bore any resemblance to any of the
dashing romantic leading men who have played lawyers, I was really way too
nervous to notice. I did say I was nervous, didnít I?

For the first 45 minutes I was questioned about my education, my work
history, my arrest record (that was fast since I donít have one) my drug use
(ditto), my marital status, my social and political affiliations and if
there was any reason I could think of why I would lie because of some
previous oath I had taken. (I do pledge allegiance to the flag of the United
States of America and the republic for which it stands, every once in a
while, did that count?)

I felt like I started out like a bug, which had been unceremoniously wiped
after being squashed on a windshield and had to cell by cell, prove my
worthiness to be alive.

Which is an interesting commentary on our justice system when a witness who
basically volunteered to come forward is first assumed to be the scum of the
earth and prove that she isnít for anyone to believe her.

Then came the problems with the law.  Another revelation is that lawyers
argue law, not truth, justice or the American way, but law.  Iím no lawyer
so I have no hope of dealing with that except that it took another chunk of
time. There was some question as to the time period between when the
subpoena was issued, when I received it (sorry, I didnít check Greenwich
when I took the envelope from my mailbox) and the date of the deposition.
Then came questions that bore some relevance to the issue.

Itís safe to say that at this point in my life Iíve written several hundred
articles that have been published in various places from local news rags to
internationally published organs as well as appearing on the Internet.

These articles were not the high point of my life and I donít mean that in a
sarcastic manner but more comparatively.

Most times when a person has to testify, the issue at hand is probably the
most traumatic and memorable event of their lives, be that good or tragic.
The facts will stick with them.

These articles were neither to me.  They were just more articles that I had
to research and write and so held no more significance to me at the time,
than any of the other hundreds of articles Iíve written. Sure, I wanted to
do a good job but I can say that about everything Iíve penned.

In short, I could not and would not say, ďI remember it as if it were
yesterday.Ē  I just did not remember. The articles were used almost like a
quiz. ďDid you say this, did you talk to so and so, and why did you ask that
question?Ē And if I got it wrong my writing was slammed into my face in an
effort to prove me to be a liar.

Actually it felt like a pop quiz for which I was totally unprepared. The
only thing I can definitly do, and was doing constantly was thanking G-d for
my first professional newspaper editor who slammed into my brain the need
for attribution, research, that opinions were anathema to good news
reporting and to always keep an eye on the goal of being totally objective.
Itís a lot harder than it looks.

What is also hard is to keep in mind sometimes that while I do my homework,
there are others who donít.  All seven of these lawyers, who get paid a lot
more than I ever did, had no idea that they were basing their arguments for
and against this multi-million dollar law suit on about one tenth of the
evidence on which I had based my articles.

I had written about 10 articles on the investigation, they only had
ďuncoveredĒ one.  I suggested they check out the local library.

They could not be bothered so I was strongly requested to make available to
them any notes, tapes, etc. I had. All it required was a quick search with
Windows for a few key words and I printed the lot and sent them off.

So, at this writing Iím waiting for the other shoe to drop.  Will I be sued?
Well, I never had any business dealings with the alleged polluter, though
they did try to prove that I did (disgruntled ex-employee.) The truth is the
best defense to libel and everything printed was attributed to expert
sources and I refrained from putting forth speculations and opinions. Also,
the assistant DA did finally tell me that so far the only third parties
being sued were companies, not individuals.

So much for agendas and trust.

Finally the ordeal was temporarily over and I left there shaking, yearning
to get back to knowing lawyers only as I see them on television.

I could never be a criminal. I couldnít take the interrogations, and this
was supposed to be friendly, or comparatively so.

But if thereís one thing that is clear to me it is that no matter the
outcome of these proceedings, which will probably go on for several more
years, this squashed bug may be wiped away, but she sure does leave a smear.

With apologies to ďKarate Kid IIĒ
Rule one: Be sure of your facts.
Rule two: First learn rule one.
Readya,
Anne
The shortest distance between two points is a complete understanding of the
Cabala
 
 

 

HOMEWORK:

Roam the internet and find a newspaper or magazine article exposing some illegal activities or corruption in high places.  (or low as the case may be with pollution)

Read that article for any wordage that could be opinion, substantiated or unsubstantiated.  Figure out what that reporter would be asked in court.  Figure out what they might have to produce in defense of the facts purported in the article.

Set the article aside, and write it yourself from memory.  Set what you have written aside aside for at least two weeks.  Read it over and search for any wordage that could get you in trouble if you had to defend what you wrote in court -- or if you were sued for libel.  If you can get a third party to review what you've written for objectivity, do so.  

Repeat the exercise until you can produce an article that is objective and defensible. 

Before you set out to write your first article for pay, set up a file system on your computer, and a backup system that would insure that articles you write and all the attendant research material will be available to you instantly (no matter how rattled you may be emotionally when such items are demanded), should you ever be questioned or have your computer siezed by the F.B.I..  

 

Read the other lessons by Anne Phyllis Pinzow.  Especially her Rules for good reporting.  

 

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