Tuesday, September 5, 2017
Reading closely is a highly valuable skill for both lawyers and law students. But reading closely is not the only key to getting the most out of reading materials. Often, knowing what to look for can help us discern what we're really being told. An article at LawFare, How to Read a News Story About an Investigation: Eight Tips on Who Is Saying What, by Benjamin Wittes, does a nice job of providing some tools to help read news stories more carefully, and perhaps accurately, especially when it comes to sources. Note that this piece applies to reputable reporters, not everyone who has written something about current events.
One solid takeaway:
Reporters publish what they know. If a story describes a series of interactions between a witness or a subject of an investigation and the investigators and the story contains information about one side’s thinking but not the other’s, that’s a powerful sign of where the disclosure came from.
Many of the skills here would translate into other settings, too. For example, Wittes' first rule: The Words Describing a Source Should Be Presumed Accurate. He says, "Always start with the precise words the journalist is using to describe her sources. An ethical journalist will never write a sentence that is not on its own terms true." This should be true of a SEC filings or other corporate disclosure documents, too, but it does not mean that the words will clearly communicate the same thing to all readers.
Wittes' Rule No. 2 also applies: Don’t Make Hasty Assumptions About Vague Sourcing.
While the words have to be true, they emphatically do not have to be evocative of some larger truth. While the words have to be true, they emphatically do not have to be evocative of some larger truth. The conventions associated with sourcing stories like these permit a certain degree of misdirection about which the reasonable reader should be savvy. Reporters have a duty to inform the public; they also have a duty to protect their sources. These goals often conflict, and the solution is sometimes to inform the public in a fashion that is technically accurate but is not what a naive reader would expect certain words to mean.
As to this rule, I would not say that "misdirection" is permitted in SEC filings, but this last part seems generally true of many SEC disclosures: they inform the public in a "technically accurate" way but not necessarily in a way that "a naive reader would expect certain words to mean." I know some people will disagree with my cynical view on this, but that's my take. The closing advice: "Read sourcing sentences both literally and broadly." Same with disclosures.
I recommend reading Wittes' piece for its intended purpose and to see what you might take away for application in other settings. It's a solid and thought-provoking overview, whether you agree with my assessment or not.