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Dahlia Lithwick on long-form, sob stories and the Supreme Court

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In this week’s Notable Narrative, we took a semi-quantitative look at how Dahlia Lithwick’s story on a wrongful conviction used one person’s experience as a narrative thread to present a bigger problem. The piece, which followed the exoneration of Bennett Barbour, is right up Lithwick’s alley. As a senior editor at Slate, she writes the “Supreme Court Dispatches” and “Jurisprudence” columns, and she edited “The Best American Legal Writing of 2009.”

We’re glad we caught up with Lithwick by phone this week – in addition to talking with us about her story, she had interesting news about the future of long-form journalism at Slate. In the following excerpts from our conversation, she talks about that news, the value of a good editor, and what rising journalists should do to save the field and get a job like hers.

How did you find out about Bennett Barbour’s wrongful conviction?

Two ways – first from the folks at the Innocence Project here in Charlottesville. I’ve written about some of their work before, so I’m always in touch with Deirdre (Enright) there to know what’s going on in the Innocence Project world. And then also, unrelatedly, Brandon Garrett, the law professor I cite in the story, sent me an email saying, “Wow, you should take a look at what’s going on with the DNA testing in Virginia.” So this actually came in stereo, where both he and Deirdre were responding to the Frank Green piece in the Richmond Times-Dispatch.

Did you debate with yourself on whether the story should focus on Bennett Barbour, the exonerated man, or Jonathan Sheldon, the attorney who is on a mission to get the names of the innocent?

Well, I kind of wanted to do both. I spoke to Barbour, and it’s just such a completely heartbreaking thing to talk to him, because he really is very, very sick, and he did lose this new marriage. He had this baby daughter; his life was wrecked by this. As I was writing at the end of the week two weeks ago, he was sent back into the hospital. This guy’s life is so shattered by what’s gone on.

And then at the same time, when I started talking to the Innocence Project folks, they said, “This guy John Sheldon is amazing. What he’s done really is sort of the pivot here.” And then I spoke to him several times and started emailing with him, and I think I realized that the part of the story that is an amazing new twist is that this guy singlehandedly took on DFS and has made it his crusade to get word to these folks.

You spend time on both of them, but you open and close with Barbour. Did you ever sit down and tease out exactly how you planned to structure the story?

I give huge credit to Will Dobson at Slate, who edited this story. By the time I turned it over, it was probably 1,000 words longer than it ended up, and I was very invested. And Will, more than anyone, sat down over the weekend with it, so I really can’t take credit for the final draft. The structure looked a lot different after his last edit. He really helped me bring it back to Barbour at the end.

Can you talk about how what you turned in was different than the final product?

When I turned in the draft – there were a lot of drafts. This is longer, quite a bit longer than the typical Slate form. The ordinary turn of events at Slate is that you file something at noon and it goes up at 4 – and this is not that kind of piece. So this was a big departure for me, in terms of really taking two weeks to write a piece instead of five hours. As the drafts went along, Will was really pushing, “Go back and talk to the Innocence Project people. Go back and ask Sheldon about this.” This was a real lesson for me in how you can take two weeks to write a piece and have it come out really significantly better reported.

I’m not slamming on Slate’s ordinary style. We are trying to be quick and to pivot fast. But for me going back and getting the second and third interviews with people made a huge difference. And at every turn, Will was saying, “Wait, wait, wait. Go back and ask this, too. Wait a minute – he defended the D.C. sniper? Just wait a minute.”

It went up on a Monday, but we had planned to run it the Friday before. We were trying to get a photograph of Barbour, and I got word that he was back in the hospital. You start to have that sinking feeling, understanding that the guy is really, really ill. And I think it was Will who rejiggered it so that the last paragraph went back to Barbour. It was almost completely a function of being reminded that there’s a person in the middle of this who’s very sick.

We get a lot of details about Barbour in passing, but you didn’t expand on his life – what he’s done since he got out, the details of the relationship with his daughter. Was that an attempt to streamline the story, or was it even a deliberate choice?

I give huge credit to Frank Green who wrote these pieces on Barbour for the Times-Dispatch, because he had done a lot of that reporting. So what I was trying do was to take three steps back and look at the legal story. And I think the local NPR affiliate had also done a really good interview with Barbour, where they talked about how he was a chef and he became a good cook in prison.

There was a lot of great color that felt to me like it had already been reported. So I wanted to talk to the crime lab, and I wanted to talk to Sheldon, who hadn’t really been a central part of the story before. There was a feeling that this other material about Barbour, while hugely important, wasn’t as necessary for me. I wanted to tell the legal story. Some of that stuff felt like it would have been making this piece even longer, and what I really wanted to do was to get to how the system got set up and how it’s failing.

America’s courts are your beat. Do you have an overarching goal when writing stories about them?

Yes, I do. Sometimes I think that court reporting is so mystified, it becomes a form of science reporting, where it’s this obscure thing in which we have to spend a lot of time explaining the physics and how things work. My own sense of it is that this can’t be the way we talk about the courts, because the courts impact every single aspect of our lives. Things like eyewitness identifications that go wrong affect every single one of us. We pay millions of dollars into a criminal justice system that I think is fundamentally broken.

A lot of the overarching goal from the beginning has been to try to be an ambassador or a translator between the very lofty, and I think jargon-y, language of the court system and the average American, who is hugely interested but sometimes feels like the meaning has been obfuscated. So I try really, really hard, particularly in some of these criminal justice cases. Think of Thompson v. Connick, a big Supreme Court case also involving someone who was exonerated. People care so desperately about this, but you need to strip away the patina that this is too hard to understand, and really try to formulate it in ways that are interesting and also urgent, so that people can come to realize, “Oh my God, this is what we are doing in this country, and this is why it matters.”

That sounds awfully high self-regarding, but the objective is to do for court reporting what really good political reporters do, which is to say, “This seems like it’s way off in the ether, but it’s actually affecting every part of your day-to-day life.”

You also recently had a long piece in the New Yorker, a book review. Are you planning to do more long pieces?

I’m probably not the best person to talk about it, because I think it’s happening at the editorial level, but I think Slate is really rethinking its view of long-form writing. We have tended to say for many years that people just click off at 1,400 or 1,500 words on the Web. It turns out that that’s not true.

We had in fact thought because it’s so un-Slatey to run a 3,000-word piece on Barbour, we had thought that maybe we would break this story into two pieces over two days. But it was a piece that wanted to be one long piece, so we just put it up.

I think that editorially Slate is going to try to challenge the idea that folks simply can’t read X number of words on the Web, because we’re seeing in a lot of ways that that is no longer true, if it was ever true at all. It may have just been an assumption we all made at the beginning of Internet writing that was wrong.

I do think, certainly at Slate, that we’re going to see more long-form pieces. We all did those Fresca projects. And while the Fresca idea is just flat-out brilliant – to get out of your wheelhouse and do something you’ve never done – it was dominated by the idea we had to do three 1,400-word reported pieces because that’s what people read. I think the new Frescas are going to be a lot longer, and that’s a good thing. I think we had some mistaken assumptions about how readers read Slate.

Hopefully you’ll see more of it from me, but I think you’ll really see more of it from Slate. And as we think through what Web reporting is going to do, the idea that it all has to be quick and bloggy and newsy and that we leave long-form reporting to other sources, I think it’s going to start to go in the other direction, and that’s a great thing. Both the New Yorker piece and the Slate piece really benefited from going back and forth four or five times with an editor. Holy cow, it really is humbling how much better a piece can be when two people are working crazy hard on it.

How do you think of balancing human stories of people whose lives have been changed by judicial decisions with educating your readers about the history and process of the courts? Do you have ways you think about the language?

Those of us who went to law school and then turned to legal writing, we just get so bogged down with the jargon. We really have this notion that if we use all this jargon we used in drafting briefs, that it’s somehow better, and that really long sentences are really good because they seem to be good in the law. I do think you have to do this dual project of draining a lot of the legal, what looks like loftiness but what is in fact kind of wordiness, out of your writing. That is really a hard thing to unlearn after law school – that more words isn’t better.

At the same moment you’re draining it out, there’s a real secret shame in legal writing of passionately caring about something, about making it urgent and important. There’s that dispassionate distance that you learn really works when you’re drafting memos or documents for court, because judges read things differently. But the American public desperately cares if an innocent man is in jail for many years. They desperately care if Garner and Lawrence weren’t having sex. These things matter.

It’s a little bit of unlearning what you thought made legal writing important with a capital “I” and then relearning that fostering these connections and creating a sense that if something is unjust, it’s okay to say it’s unjust.

I come at this largely as a Supreme Court reporter. When people walk into the Court, they’re always surprised that the plaintiff has fallen out of the case. You’re lucky if they’re sitting in the courtroom; more often than not, they’re not there. If they are in the courtroom, nobody references them, nobody pays attention to this person whose whole life for five years has been this case. They evaporate into very highfalutin’ talk about the Dormant Commerce Clause, or whatever we’re talking about.

I think the trick is to loop them back in. I’m lucky – I come out of this tradition. Nina Totenberg is all about that, Adam Liptak, Joan Biskupic. There’s a whole host of court reporters who have very much dedicated their writing to the idea of “Hey, meet the person at the center of the case, who you won’t hear about for the next two hours.”

When you’re paying attention to making it human, do you ever worry about veering into melodrama?

Yeah, that goes back to that shame. Lawyers aren’t supposed to care about personal details, and  they’re not supposed to tell sob stories. Justice Scalia is always the first person to say, “If the opinion starts, ‘Little Mary Jane was walking back from school,’ you know where this is going.” It is a yank at the heart strings, but I think it’s important to realize that the Supreme Court justices deploy that all the time. We like to pretend we’re dispassionate automatons, but even at the Supreme Court level, we constantly dip in and out of the language of real life and real people. What you do depends on which ends you’re trying to serve.

It’s incredibly important to remember to remember that what all courts have to do at some level is disaggregate the human drama from the rule that they’re going to create going forward, and that little Mary Jane walking home from school only goes so far in solving workable problems for the future. But for my purposes, a story is always the best way in, the best way to get a reader to care, to find something familiar.

In a deep way, that’s what the Lawrence case, that book review, was about, the concentric circles that become doctrine. It does no one any good to start a case from the dry, dry legal rule and hope that people will become passionately engaged. I think you have to walk that line, between not manipulating your readers but helping them understand that this could have been them. That Bennett Barbour could have been them. That Lawrence and Garner could have been them. The courts touch every single part of our lives, and yet we think they’re out in the stratosphere doing God’s work.

Is there anything else we should know that we wouldn’t from reading the piece?

One of the heartbreaking trends in the media right now is the demise of the local court reporter, the local crime reporter, folks who used to sit around courthouses and watch every single trial. At the most local, basic level, this beat is disappearing around the country. Thank God for Frank Green, who is doing this in Virginia.

When young reporters call me and ask, “How do I get a legal job?” my advice is to do almost exactly what I’ve done with this Barbour story. Find an amazing story that gets sloughed away as a local story, and tell it.

What we have come to think of as legal reporting is really crime reporting, some fantastic crime story. But that’s sort of cable news driving this beat. I think that this beat needs to be driven by amazing young reporters who are obsessed with the law and who realize that every single day in every courthouse are incredible stories that we need to go back to telling, even if that means sitting in on some trial in Winnetka and figuring out why this has implications around the country. I think this is a form we need to bring back, because it does no good to report only big national crime stories and think that we are monitoring our courts.

*Photo of Dahlia Lithwick by John Looney




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