SF lawyer accuses former employer of 'wrongful termination' p.18

By: M.L. Stein A San Francisco reporter-lawyer who was fired by his editor for refusing to contribute to a series highlighting best and worst judges in the area, has accused his former employer of "unethical journalism" in a damage suit for wrongful termination and breach of contract.
Martin Kassman, who continued to practice law while working for The Recorder, a legal affairs daily, is seeking damages and reinstatement in the federal court action against American Lawyer Media of New York, the Recorder's owner.
In the complaint filed by attorney Bruce J. Highman, Kassman says he initially tried to carry out executive editor Scott Graham's assignment given to him and nine other staffers for a story on the best and worst judges in the Bay area. Kassman, who covered San Francisco's civil courts for the paper, was told to write separate stories on the best and worst judges on his beat based on "subjective, anecdotal evidence, and we will be up front about that in the story."
Graham's memo goes on: "This will not be a scientific survey. I don't care if seven people say Judge X was the worst but three said he was good, while five people said Judge Y was the best but four said he was good. I want you to exercise your judgment based on the comments and stories you hear plus your own impressions. ?"
Responding to grousing from some reporters, Graham issued a second memo in which he said it had been tentatively decided that the word "worst" will not be used in the headline for the series, adding, "What we will do is something more along the lines of 'Five judges you don't want on your case.'"
The published head read: "Bottom of the Bench" with the overline, "Warning: 'These judges may be hazardous to your case or mental well-being." Photos of five judges accompanied the story.
Kassman recalls that he picked judge David Garcia as the best active judge in the San Francisco civil court system but informed Graham and another editor, Peter Scheer, that, based on his own observations and interviews with various lawyers, he concluded that no active judge on the civil courts bench "was a bad judge who deserved to be maligned, and that, moreover, to write the proposed bad judge article would be unethical."
Kassman says he attempted to persuade the editors that the entire series was unethical. Graham, according to the complaint, gave Kassman 45 minutes to agree to write the piece or be fired. Kassman refused, and the series was taken over by another reporter. In the series, Superior Court judge Carlos Bea in the civil division was named as the one of the worst Bay area judges.
In an interview, Kassman says, "My primary objection is that it would have been gratuitously insulting of me to name a bad judge when I could find no one who deserved that designation. In addition, I felt the series was flawed in concept as well as in execution."
The complaint invokes the Society of Professional Journalists' (SPJ) Code of Ethics to support Kassman's case. Citing the code's preamble that calls for journalists to be fair, truthful, and honest, the suit states: "It would not have been honest or fair for the plaintiff to have written an article maligning a judge ? when [Kassman] had concluded that no judge on the San Francisco civil courts was at a performance level where he or she deserves to be maligned."
The eventual Recorder series was described in the complaint as dishonest in that it did not say the paper had predetermined before conducting the investigation that it would select one judge from each of five courts "to be the five judges residing near the bottom of the bench in the Bay area."
The voluntary SPJ code was again referenced to allege that the Recorder also was unethical by not using a bar survey of many attorneys, "but instead in an effort to sell newspapers, it pandered to lurid curiosity by deliberately predetermining to malign one judge from each of five courts as being near the bottom of the bench and it selected which judges to malign based on interviews with a very small number of attorneys."
Kassman, the complaint contends, was hired as a reporter "and not as a columnist to write opinions."
To make his point, Graham, in his second memo, drew on an article in the publication The Hockey News, which chose five "underperforming players" and explained why they fell short. "?[A]re they the MOST underperforming players in the league?" Graham asks. "Maybe, maybe not. It does not purport to be scientific. ? And it's a good story. ? And I don't find it ? irresponsible. Don't tell me that sports is entertainment and what we cover is much more serious, more important. Given the power that judges hold over lawyers and citizens, it's all the more reason to shed some light on the weak links in the chain."
Last December, the San Francisco Examiner published a four-part series evaluating "the strengths and weaknesses" of judges in the local municipal and Superior courts. Naming judges, the stories by staff writer Scott Winokur resulted from a survey of 4,738 lawyers, who were asked to rate the judges on six criteria, including their grasp of the issues and knowledge of the law, handling evidence, degree of bias, and ability to communicate.
A former judicial colleague called Judge Bea "One of the best on the bench," but another respondent portrayed him as "arrogant," "sexist," "obnoxious," and "extremely biased," while a third attorney ranked him "at the bottom for judicial temperament and bias. Lawyers in the know avoid him if at all possible." Winokur also quoted Bea as retorting: "No one accuses me of mediocrity. It is either high praise or high dudgeon."
In the Recorder series, Bea got a generally unfavorable review from the anonymous sources, who depicted him as "arrogant," biased on behalf of plaintiffs, and "just going through the motions" since being passed over for a federal judgeship. Bea replies, "My plate is full and I love what I'm doing."
Kassman also claims in the suit that co-operating in the series would have violated the state's Business and Professional Code by wrongfully besmirching a sitting judge. He further asserts that the Recorder breached a contract with him by terminating him without "good cause." Damages are sought "according to proof."
Neither Graham nor the Recorder's attorney, Jeffrey Wohl, would comment on the suit, citing company policy on pending litigation.
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?(copyright: Editor & Publisher February 6, 1999) [Caption]