Andrew Longstreth reports on The American Lawyer's Litigation Daily blog that longtime cameras-in-the-courts champion Jonathan Sherman is trying to open a federal courtroom to video cameras. The showdown will be decided by tomorrow, when Boston federal district judge Nancy Gertner is scheduled to hear a motion to dismiss the race-discrimination lawsuits against subprime-mortgage provider Countrywide Bank. What gives Sherman, a Boies, Schiller & Flexner partner, the notion that camera access in federal trial courts is an open question? Longstreth's story, and the briefs by both sides that AmLaw posted here and here, explain. First, Sherman argues that the Judicial Conference of the United States' opposition to cameras in trial courts doesn't necessarily trump a local rule. And the district's local rule gives a judge wiggle room on the cameras question. Next, Sherman tries to undercut all the usual arguments by noting that his client, Courtroom View Network, wants to record an entire hearing (no sound bites!) featuring legal arguments only (no witness or juror intimidation). Perhaps the most intriguing argument by Sherman is that the recording will be "narrowcast" by CVN, thus countering concerns of mass-media sensationalism. He writes in his brief:
The Internet provides a forum for newsgathering entities such as CVN to cover cases of less interest to the general public -- by definition, presenting less risk of sensationalism -- but much more interest to constituents that have uniquely particularized stakes in the proceedings, and which seek accurate and complete information about court proceedings. The Internet acts as a virtual overflow room, making feasible a business model that can reach these sorts of stakeholders -- for example, financial journalists, Wall Street analysts, members of the legal profession, plaintiffs in MDL proceedings, and, as here, putative class members -- but without the risks that traditional media coverage is thought by some to pose to the dignity and operation of courts.
CVN's audience varies according to the case that it covers -- sometimes only the participants in that case, sometimes a broader but limited legal audience (in partnership with AmLaw's parent ALM, which the story might have noted). No matter what, though, it's for subscribers only. Elsewhere in the brief, Sherman again distances his client from traditional televised journalism:
. . . [O]ur message here is principally that CVN is not television and does not provide television coverage. It is part of a new form of information gathering—using the Internet in effect to expand the traditional notion of the overflow room to persons unwilling or unable to travel or get to the courtroom but whose interest in the proceeding—the entire proceeding—is professional or educational rather than related to “entertainment.”
Countrywide's lawyers from Goodwin Procter responded forcefully, calling the request unprecedented and tarring CVN with profit-minded motives:
There is no "public interest" here, and CVN's commercial advancement and that of its analyst client base is no reason to undo this District's long-standing policy against courtroom cameras.
Regardless of how the judge rules, it's clear to me that this set of arguments by CVN could do the trick eventually to crack federal courts' obstinance on cameras. Do I wish the media didn't have to make such arguments in the first place -- essentially slamming popular media to win the day? Of course, and I'm sure Sherman (whom I know from his days at Cahill Gordon, representing Court TV) would agree. But whatever it takes to break down those walls, I say go for it.
