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Bar News - January 18, 2013

Criminal Law: Life as a Legal Analyst for FoxNews


When people find out Iím an on-call legal analyst for FoxNews, they usually ask one of three questions.

1. Have you met Bill OíReilly?
2. How did you get that job?
3. How do you handle the nerves associated with live national television?

The answers are: No, complete luck, and as for the third, I try really hard NOT to think about the potential size of my audience should I stumble. The reality is that the worries and fears I face before appearing on FoxNews are the same ones I face before making opening statements to a jury in a New Hampshire courtroom. Luckily, the skills needed to overcome those fears are the same in both arenas. In essence, you need to be able to retell a story to someone who is completely new to the facts and boil down complex legal concepts into simple terms for those unfamiliar with them.

I prosecuted murder cases while working at the NH Attorney Generalís Office for five years, and people, including the media, have wanted to discuss many of those cases ever since. In my first year in private practice after leaving the attorney generalís office, I was contacted by a Discovery ID Channel show called Deadly Women. The show ended up featuring two murder cases I had worked on, The State of New Hampshire v. Nicole Kasinskas and The State of New Hampshire v. Sheila LaBarre. Both episodes were filmed by a crew from Australia that was in the United States. They scheduled far in advance, allowing for extensive review and preparation. Because we were shooting footage that would be edited into a time-specific show, we had the luxury of shooting re-takes and fixing misstatements. I have done a number of forensic-type shows since then, and the ability to get a "mulligan" is invaluable.

When the shows aired, a booking agent from FoxNews saw me and contacted me about doing a test appearance for their legal panel. The luxuriously slow-paced work I had experienced with television shows didnít prepare me at all for live television. While the car service and hair and make-up teams in New York are truly lovely perks (that hide hundreds of appearance flaws, tame my often crazy mane and allow me to optimize the insanely brief time I am given to prepare for a segment), you only get one shot at what comes out of your mouth once the cameras start rolling.

My first appearance was one of the few "remote feeds" I have done in the last two years for FoxNews. It was shot at a completely empty and incredibly hot studio at Saint Anslem College. I had an earpiece in, to hear what the moderator and other analyst in New York were saying, but I couldnít see them and was left to stare into the white abyss of intense studio lighting. I was determined to show the producers and the audience how smart I wanted them to think I was. Not how smart I actually am, mind you; I wanted to give the impression that I was a legal savant. I should have just gone with the good advice Iíd been given: "Be yourself."

A man had been arrested under a New Jersey firearms law with a minimum mandatory sentence, and I was slated to take a position in support of the law. I spent the precious two hours between the notice of topic and airtime reviewing not only the relevant statute and case law, but also the legislative history. Do you think I used any of that? No. I started to form the words "legislative intent... " and the moderator was smart enough to cut me off and shift to the other analyst, who was hitting bullet points about the facts and law involved in the case. Then I remembered some simple lessons that were as relevant to my new television role as they were when I learned them in my first few years of prosecuting:

Remember Your Audience

Although trial attorneys focus on their file for months, the fact-finder is often brand new to the circumstances surrounding the event that brought everyone into court. This is true when working as a legal pundit as well. While the headlines may be familiar Ė Casey Anthony, John Edwards, the Colorado theater shooting Ė the legal concepts that I am discussing are new to the audience. So, I tailor my preparation to the specific needs of the discussion by explaining concepts such as "beyond a reasonable doubt" and charging discretion, providing simple outlines of campaign finance laws or the difference between competency challenges and an insanity defense.

Prepare for Curve Balls

Both in the courtroom and in front of the cameras, it is important to take some time to think about what your opponent will say or do. Switch hats and try to look at the issue from the opposing perspective. If you anticipate the weaknesses in your point of view and are ready to address them, it goes a long way in showing that you have a complete grasp on the issue.

Perfect Your Non-Answer Answers

These are deflection answers, ways to put out some general knowledge that is helpful and informative to the public, without getting mired in a topic you either donít want to or arenít prepared to address.

During one appearance on FoxNews, to discuss an American citizen who was under investigation for a murder abroad, the moderator asked me if the FBI could bring charges against the suspect in the US. I had prepared to address the merits of the charge and the strengths and weaknesses of the case, but had not even considered the potential for broader charges to link the alleged crime to US soil. More importantly, I was hardly well-versed on international extradition. So, I discussed the importance of co-operation of law enforcement during investigations and the critical role that the FBI was playing in the international investigation.

Stay Calm and Rely on Sound Legal Foundations

One of the hardest things in serving as a legal analyst and in trial work is playing a role in an adversarial process, typically dealing with emotionally charged facts, and keeping your case firmly planted on sound factual and legal ground. I have appeared on FoxNews to cover cases that evoke strong emotional responses, and it would be easy to get caught up in them, but it is the lawyerís job to advocate for her position while not baselessly inflaming emotional sentiments.

Sometimes, itís difficult to take an unpopular stance, but often we are required by oath or duty to do so, and to calmly explain why our position must prevail. Similarly, it may be easy to ride an emotional public outcry, but one which isnít supported legally. Taking the time to objectively assess the legal merits of your position is a critical step in both trial work and when appearing before television cameras. It gets to the root of what we are there to do: provide clarity and guidance on issues about which we are knowledgeable.

Whether you are making opening statements before a jury, appearing in front of the cameras, or just interacting with a friend, child or colleague, the ability to communicate clearly and effectively is paramount, and there is always room for improvement. For me, working as a TV legal analyst has been a challenging new way to sharpen this essential skill.

Kirsten Wilson was a prosecutor at the NH Attorney Generalís Office from 2004 to 2009. After three years in private practice, she now works as an assistant Rockingham County attorney and an adjunct criminal justice professor at Plymouth State University. She is also a ski-racing instructor.

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