The use of lawyers and law professors as commentators continues to increase. Although reporters have long used experts to explain and evaluate, in the last decade legal commentators have become a fixture in news stories about legal proceedings. A decade ago, when the McMartin Preschool case filled the news in Los Angeles, scarcely a commentator was used. A few years later, when the officers who beat Rodney King were tried in state court, daily legal commentary was absent. In sharp contrast, commentators were used on a regular basis during the federal prosecution of those officers. The subsequent trial of two individuals accused of beating Reginald Denny was accompanied by the continued, and even increased, presence of commentators.
The O.J. Simpson criminal prosecution exponentially increased the use of legal commentators.2 No trial in American history received the sustained media attention that was devoted to this case. Television shows were devoted on a daily basis, both nationally and locally, to analyzing the latest events. Every television network broadcast the opening and closing statements in their entirety, and three cable networks broadcast the full trial. All this created a tremendous demand for commentators to explain the legal proceedings, to analyze the strategy and events, and to sometimes just fill time. ...
Rather than repeat what we said in our earlier articles, this Article focuses on topics not previously addressed. Overall, our conclusion is that there is a need for more nuance in defining the ethics of commentators and more attention to the particular setting and role in which a commentator serves. Part II of this Article reviews the basic standards for commentators that we explained and advocated in our earlier articles. Part III discusses the need for attention to roles in developing and applying the standards for legal commentators. Part IV considers the need for attention to setting in developing and applying the standards for legal commentators. Part V examines the need for attention to training the profession, the media, and the public about the role of commentators. Part VI addresses concerns that a code of ethics is unnecessary or, perhaps worse, that it inappropriately discriminates against voices who wish to provide commentary.
We regard this Article as part of a continuing effort to encourage the development of a code of ethics for commentators and to help shape its content. We applaud the groups, such as the National Association of Criminal Defense Lawyers and the American College of Trial Lawyers,
Chemerinsky, Erwin and Levenson, Laurie
"The Ethics of Being a Commentator III,"
Mercer Law Review: Vol. 50:
3, Article 4.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol50/iss3/4