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From Wikipedia, the free encyclopedia

Richard Tofel is the president of ProPublica, a non-profit investigative journalism organization in New York City.

He was the general manager of ProPublica from its founding in 2007 until 2012, and became president on January 1st, 2013. Previously, he was the president and chief operating officer of the International Freedom Center. Tofel took over that position in October 2004.

Tofel served as a vice president of Dow Jones & Company from 1997 until joining the International Freedom Center, and as the assistant publisher of The Wall Street Journal beginning in 2002. In the latter capacity, the Journal's international editions reported to him. He was also a director on the joint venture boards of SmartMoney and Vedomosti, the leading Russian business newspaper. He played leading roles in the development of the forthcoming Wall Street Journal Weekend Edition, in the redesign of the Journal and the creation of the Personal Journal section in 2002, and in Dow Jones's response to the events of September 11, 2001.

Tofel's earlier roles at Dow Jones included assistant general counsel (1989–1992), assistant managing editor of the Journal (1992–1995), director of international administration and development (1995–1997) vice president of corporate communications (1997–2000), and assistant to the publisher of the Journal (2000–2002). Before joining Dow Jones, Tofel was an associate at the New York law firm of Patterson Belknap Webb & Tyler from 1983 to 1986. Mr. Tofel moved to the New York office of Gibson, Dunn, & Crutcher in 1986.

A native New Yorker, Tofel's previous public service includes stints during the administration of New York City Mayor Edward Koch as executive director of the Beattie Commission on reorganizing the Human Resources Administration and as a member of the Liman Commission investigating the Office of the Chief Medical Examiner.

Tofel earned a bachelor's degree, a law degree and a master's degree in public policy from Harvard University. He is the author of three books: A Legend in the Making: The New York Yankees in 1939 (2002), Vanishing Point: The Disappearance of Judge Crater, and the New York He Left Behind (2004), and Sounding the Trumpet: The Making of John F. Kennedy's Inaugural Address (2005). He is a member of the board of trustees of Wildcat Service Corp., the advisory board of the Knight-Bagehot Fellowship Program in Economics and Business Journalism at the Columbia University Graduate School of Journalism and the Joan Shorenstein Center on the Press, Politics and Public Policy at Harvard's John F. Kennedy School of Government.

Tofel has two children with Jeanne Straus, daughter of Ellen Sulzberger Straus and R. Peter Straus, whom he married in 1982.[1] The marriage ended in divorce. On December 12, 2010, he married Janice Nittoli.[2]

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  • Richard Tofel | 'Investigative Journalism in the Digital Age: A recovering lawyer reports'
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Transcription

DEAN MINOW: I have been really-- myself, personally-- so much of a fan of Richard Tofel that I just had to have him come back to campus. He is the president of ProPublica. How many people know what ProPublica is? OK! RICHARD TOFEL: So you're not just here for the pizza. That's great! DEAN MINOW: As you know, this is really the most, I think, innovative effort to deal with the crisis in investigative journalism. And by creating a non-profit organization that actually uses digital tools and figures out ways to support other journalists as well as the people who are there, I think it's really doing very important work. In addition, I think that many of you know that the mission of ProPublica-- and I'm quoting from its own words-- is "to shine a light on the exploitation of the weak by the strong and on the failures of those with power to vindicate the trust placed in them." And I wonder if maybe a little of that was something you've learned at Harvard Law School. Richard's 2012 book, Why American Newspapers Gave Away the Future, is a crucial window onto the challenges of contemporary journalism. And in his role as president now, he's building on the work that he did since the founding. He was the general manager at that time. He works on all of the business side. How do you keep it going? How do you raise the money? How do you manage the people? How do you manage the external communications and development? He's here to help us understand the prospects for investigative journalism. And I will let him do that, but not without saying we're so proud that he's our graduate as well as at the college and the Kennedy School. He practiced law at Patterson Belknap and Gibson Dunn. He served in the administration of Mayor Ed Koch in New York. He served in the Dow Jones organization, which is the publisher of the Wall Street Journal, as vice president, as assistant managing editor of the paper, as director of international administration development, and other fascinating jobs include being vice president and general counsel of the Rockefeller Foundation. And he has four or five more books including A Legend in the Making-- The New York Yankees in 1939. And maybe we'll get to that in Questions and Answers. RICHARD TOFEL: Right. Thank you, Dean Minow. [APPLAUSE] RICHARD TOFEL: Thanks very much. I'm happy to be here, and I very much appreciate Dean Minow inviting me. It's now been almost 32 years since I graduated. That's scary. And in that time, I practiced law full time for less than nine years and part time for another nine or so, including currently. So I've said that these reflections come from a recovering lawyer, but certainly not a recovered one. And I can say that while the five plus years of big firm full-time practice were a mixed experience, I've truly loved my legal work as the Wall Street Journal's first in house newsroom lawyer, and as the first inside general counsel of the Rockefeller Foundation, and as the original newsroom lawyer, as well as the general business manager at ProPublica. So I'm not here as one of those people to tell you to throw off your chains and flee. And I'm happy to take any questions on any of those roles in a few minutes, or how I fell into them, which is the case in almost every one of those roles. I do have some words of caution for lawyers dealing with the press on behalf of clients as opposed to representing the press as clients. Because far more of you will find yourself, I'm afraid, contending with the press rather than aiding it. But I'm going to save those thoughts for later. Instead, I want to begin by telling you just a little bit about where we stand in my industry, the journalism business, and especially the investigative reporting side of that business. I want to warn you that this is not a happy story. The business of the press in this country has been in crisis for 10 years. It's worth remembering that the most profitable year in newspaper history in this country was the year 2000. And at that point, it still looked like the consumer internet, which emerged in 1994 and 1995, could usher in a golden age of the newspaper business and of the journalism business generally with free distribution to huge audiences and near 100% profit margin on incremental advertising sales. But since 2005, it's been increasingly clear that instead, the digital revolution is not just disrupting but actually destroying the business models that produced nearly all of the quality journalism of the quarter century following Watergate. You probably know this story, but just let me sum it up in a few quick points. Barriers to entry into publishing have largely collapsed. That's great for spanning a new wealth of opinion journalism and for facilitating consumer access to much greater flows of new. But it's also hell on profit margins generally. The rise of alternative news sources has-- entirely predictably-- eroded the audiences of incumbents from newspapers to magazines to broadcast television news. This cycle is far from done playing out. The supply of digital advertising has exploded, greatly outstripping demand. Just think about the number of new Facebook pages being created every day, and you'll immediately grasp this. You are, yourselves, as am I, undoubtedly part of the problem. When supply exceeds demand, prices, of course, fall. In this case, the price seems almost inexorably falling towards zero. Almost all the best investigative reporting in this country has long been done by newspapers. Yes, the muckrakers began in magazines, but they didn't stay there very long, and that period pretty much ended with the first World War. So where did these trends of the last 10 years leave newspapers and thus much of investigative reporting? Print circulation fell. Advertising revenue fell. Paid digital circulation, where possible, didn't come close to making up the difference, even though total audience size exploded to numbers previously literally undreamed of. When an industry faces trends like these, it retrenches and it jettisons loss-making activities whenever it can. For almost all newspapers, that meant less investigative reporting. Until a couple of years ago, essentially the sole exception in the entire country was the New York Times. Now the Washington Post, under a new, very rich owner, may be another. But that's pretty much it. Why did decline in business so seriously affect investigative reporting, perhaps more than any other area of traditional journalism? The reasons, I think, are also clear. Investigative reporting takes a lot of time and is thus expensive. It is risky in the sense that some stories just don't pan out. We talk about it ourselves as being a lot like drilling for oil and often finding dry holes. And it does not, generally, garner the highest readership of articles in a general interest publication. So while it is prestigious, and societally valuable, and even the people who are cutting it, I think, concede both of those points, it can also seem commercially expendable. This is a loss, of course. But not just for readers, I'd argue. It's a loss for democratic governance, which had come to depend on investigative reporting over the last 125 years as a critical check on the power of government, on business, and on other powerful unentrenched interests. The result is a rather classic market failure. That is to say that the market is no longer capable of supplying the desired quantity of a public good-- in this case, investigative reporting-- and other non-market sources of supply are needed. The question is what or who could fill the gap? ProPublica, I'm happy to say, has been one of the answers-- not in quantity. We have a newsroom of 45 today, a small fraction of the investigative jobs lost in the last 10 or 15 years. But in quality, I hope. We've been proud to win two Pulitzer prizes, the first ever awarded to an online news organization, and then the first ever for a material not published in print. We've also won a National Magazine Award, a Peabody Award, the highest honor in broadcast journalism, three George Polk awards, three Online Journalism awards for general excellence and a host of other designations. We were a finalist this year for the Kennedy School's Goldsmith Prize, and have been five of the last seven years. Our reporting on school resegregation is a finalist for the ABA Silver Gavel this year as well. Even more important, we've spurred real reform, real change, through our reporting. And that's what we're in business to do. As a nonprofit, that is our mission. The differences that reporting has made have ranged from police reform in New Orleans, to new nursing oversight in California, from tougher Medicare rules for prescribers, to a new system for identifying and repatriating the bodies of soldiers missing in action. Even beyond the particulars of our own work, I think we and others have begun to demonstrate that news organizations funded mostly by philanthropy, including gifts large and small, can help ease the market failure and increase the supply of this public good of investigative reporting. Two last points before I move on to take your questions. First, people ask why all this great work can't support itself, can't become self-sustaining without donations. The answer in brief is that the numbers simply don't add up. Advertising online does not throw off enough money to pay for content almost anywhere. Indeed, it's hard to think of a single advertising-supported online-only publication that even breaks even. If Buzzfeed is an exception, that would only be because of its enormous scale. And it's worth noting that Buzzfeed has 10 times as many news staff as ProPublica, but only one fifth the investigative staff. Consumer payments are also simply not an answer. As the plateauing of online subscribers at the New York Times, which remains the best publication we have, after just a few years proves. But I also think this is the wrong question. Why can't a news organization, powered mostly by donations, be self-sustaining? Is Harvard self-sustaining? Yes, I think it is. I think we can all be relatively confident that late in the century, absent some nuclear disaster, or a meteor, or something, that Harvard will celebrate its 450th anniversary. But it wouldn't be able to get anywhere near that far-- it probably wouldn't get very much into the next decade-- without donations. The same is true of our great museums and other great cultural institutions. Why can't this same standard govern sustainability in nonprofit news? If it can be the standard, then we are getting there. In less than seven years of publishing, we've built a reserve fund of $5 million, reduced our founding funders from 95% of revenues to about one-third. This year it will be one-quarter, and we're headed down from there. Last year we had more than 2,600 donors. I hope you'll consider being one of them. Last point-- not really related to the rest of what I said, but I couldn't resist being here today and not raising it. Most of you, I realize, will not end up in journalism. But more of you than you may expect will end up dealing with journalists in your work. So I have couple of tips mixed in with a plea. First tip-- don't lie to reporters, no matter how much your client might like you to do so. It's not a crime to lie to the press. Elected officials do it every day. But reporters have long memories. And they'll have a very hard time drawing a line in their heads that you lied for one particular client, but that you're actually a truth teller in other contexts, or left to your own devices. Second tip-- don't do the next worst thing, which is to claim some obscure, technical legal reason for your position when you're just stonewalling. I've actually found in dealing with reporters over the years that by far, when you can't tell them or just don't want to, that if you just say, "I can't or just don't want to tell you," it's by far the best strategy. If you followed our coverage of the Red Cross, you know that began with the Red Cross taking the position that what they had done in response to Hurricane Sandy constituted a series of trade secrets. And they hired my old firm to take that position. That's the kind of thing that leads a news organization like ours to put two reporters full time on a story. It also tends to bring the law itself into disrepute with journalists, which is not good for society. And to come back to tip one, it can feel to reporters as if you're lying. Finally, a plea-- remember that in dealing with journalists, there are multiple legal interests all around us, and that these often need to be balanced. You may actually have one of those interests on your side, for instance, Seventh Amendment fair trial rights. Or the legitimate protection of trade secrets under the Freedom of Information Act. But acknowledging that there are other interests-- for instance, First Amendment and common law rights of access to the courts, or the Freedom of Information Act's principal mission of disclosure-- only enriches and respects the important exchanges you could and should be having with reporters. And with that I'd love to take your questions. [APPLAUSE] DEAN MINOW: So I'm still Martha Minow. One of the things that's interesting to me about the work of ProPublica is the tenacity in using legal tools like the Freedom of Information Act. So if you could reflect on how much the legal tools are helpful, how much the law is a problem for investigative journalism, how often do you hear things like trade secrets, and how much there are pay walls now that make it difficult for people to get access even to governmental information, that would be helpful. RICHARD TOFEL: FOIA can be enormously helpful if you have an agency that wants to help. And sometimes you have an agency that's just playing it straight. But I will be honest, it's certainly far better than if it didn't exist. But the law itself and the system under it is incredibly dysfunctional for a couple of reasons. One is, its time periods are never observed. I had an exchange with the President's first chief technology officer who was trying to open up the government. And I said, you know, if you really want to make a change, you could do it by issuing an executive order that says everybody's got to meet the FOIA deadlines, or disclose, or certify that the national security is endangered by this request, by our disclosure of this request because you clearly need some out like that. And he said, well, we couldn't do that. And I said, well, why not? He said, well, for instance there are health privacy laws, and all sorts of stuff would get disclosed. I said, yeah, but you know that health privacy law, it's a law. And the Freedom of Information Act, it's a law. And if you're the President, part of what you get to do is when there are two laws and only one of them can get enforced, you get to decide which one. That's one of the cool things about being President. But somehow in the government there has come to be a completely universally accepted notion that if two laws come into conflict, and one of them is the Freedom of Information Laws, that one should be violated. And every agency does every day, hundreds of times. Second problem is agencies, when they deny requests-- because frankly, they have the resources, and it doesn't cost them anything-- always litigate. They just say no, and then they lose, then they litigate. Then they litigate again, and they appeal. So what I would say to reporters is we file requests all the time. But in terms of litigating them, we have to decide if the subject is really important to us, so we're going to spend a considerable amount of money, and if it's going to be important to us, not just today, but years from now, which is when we would win. We have a state law case going, for instance, with the New York City Police Department, which is a particularly antediluvian agency in this respect, who bought a bunch of the-- you know the x-ray machines that they had in the airports that they took out because they were unsafe, which was actually a result of our reporting on them. So we discovered that New York City Police Department has bought a certain number of those machines and is driving them around New York in vans and pointing them at things to try to find terrorists. And we know that's true. They've admitted that's true. We don't know how many vans. And we don't know what their guidelines are. And they won't tell us what their health guidelines are for using them. So we sent them a request. Zero documents. Can't disclose anything. Can't disclose the safety manual. Can't tell you how many vans we have. Can't tell you where we've ever used them. So we litigate this in the New York State Supreme Court-- not the nation's most efficient tribunal. It takes two years to win. We win with the help of the clinic Floyd Abrams set up at the Yale Law School, by the way, which does spectacular Freedom of Information work. The PD is now appealing. I mean, it will be five years and two or three mayors before we get them to tell people what they're doing with this-- frankly, I think-- crazy machine that was taken out of prisons years ago because it was unsafe and then finally taken out of the nation's airports, but is still, I believe, cruising the streets of New York. Sorry. Yes? MICHAEL LINHORST: Hi, I'm Mike Linhorst. I'm a 1L. Can you just talk a little about how you fell into being a newsroom attorney and journalism in general? RICHARD TOFEL: So first thing I always say when I give people career advice is that the smartest observation I ever read about how your career actually progresses in real life was President Kennedy was asked once how he became a war hero. And as you may know, being a war hero and John Hersey writing about him as a war hero got him elected to the Congress at a very young age, and the rest is literally history. So how'd you become a war hero. And he said, "It was easy. They sank my boat." Which is to say, it was an accident. And that's true. I think most career developments that end up making a difference are accidents. I became a newsroom lawyer in sort of stages, all of which were a series of accidents. I wanted to do it, but there were frankly a lot more people who wanted to do it than people who could do it. I went into city government for six months on leave to do a non-press law thing-- help reform the welfare administration in New York as a young associate, which Patterson Belknap was great about letting me do. I came back out, and they needed somebody right then new on that team, so I got put on that team. Then a year later, the partner who was doing that work decided to switch firms. It's Bob Sack, who's now on the Second Circuit. And he had a whole team of people, five people or so, of whom I was the most junior. The most senior associate decided he was right on the cusp of making partner at Patterson Belknap so he thought it was too risky to leave. He was probably right because he's now the managing partner of Patterson Belknap. The next associate had had a personal tragedy. Her husband had died within days of her baby being born. And she just decided she couldn't disrupt her life in that further way, which made sense. The next associate decided that she had a personal problem that precluded her going with Bob. So I went from being the number four associate on this fairly large body of work overnight to being the number one associate. And I was less than three years out of school. So that was, frankly, just an accident. But a huge break. And then I loved the work I did for the press at both firms. At both Patterson Belknap and Gibson Dunn, I frankly didn't love the other part of the work I did, which was about half. And I finally got to the point where I though liking half your work was probably not great, so I went looking for a job. And I went to talk to the general counsel of Dow Jones, whom I knew. And this is the mid '80s and sort of a classic story of how work got brought inside to big companies. He said, how much of your work are you doing for us? And I said about half. And he said, and in hours that would be? And I said about 1,000. And he said, do you mind my asking what the firm is charging us for that? Well, it wasn't a secret. It was on the bills. And at that point it was $250 an hour. So the firm was charging them a quarter of a million dollars a year for half of my time. This is 30 years ago. And he said I think I have a better idea. So that was sort of an accident, too, because he hadn't-- they'd never had an in-house newsroom lawyer. But he realized he could buy 100% of my time for a heck of a lot less than that. And then the managing editor of the journal left-- Norm Pearlstein, who's now the editor in chief of Time Inc. And Paul Steiger, who had been his deputy, became the managing editor. And the publisher, whom I had gotten to know through my legal work, said to me, I think Paul needs help down there running the news department as a thing. So I want you to go be assistant managing editor of the paper, essentially, managing editor's chief of staff. You know, accidents after accidents after accidents. I will just tell you one more much later, how I became the first general counsel of the Rockefeller Foundation. So I go to interview with the present of the Rockefeller Foundation, Judy Rodin, for the job as vice president for communications, which was something that I had done at Dow Jones and had some experience in. And we're sitting there and she says to me-- at this point, I haven't practiced law at all for 14 years. And she says, how would you like also to be the general counsel? And I said, you know, I don't know if you noticed on my resume, but I haven't practiced law for 14 years. And she said, no, no, no, of course I noticed that. She said, so here's what I know. She said, as it happens, I have two fairly close personal friends who are justices in the United States Supreme Court, which she did. She said, I don't think it's all it's cracked up to be. Boom. Yes? JESSICA: Hello, Jessica [? Voskergen. ?] I'm a 3L. So I have two questions, both relating to content selection. First, ProPublica, as you said, receives sometimes very large donations. And I wonder what structures are in place to make sure that these donors don't have undue influence over what investigations are made. And secondly, ProPublica covers a wide breadth of issues but is leanly staffed. Investigations are very time intensive. So I wonder how the organization decides which investigations to follow. RICHARD TOFEL: OK, those are both great questions. On the first, the relationship between donors, it's a very important issue. But I have actually found in the years we've been doing this that almost all the answers to that come by analogy to the appropriate relationship between advertisers and the news in the traditional media. Things that would be inappropriate for advertisers are generally inappropriate for donors. And things that would be appropriate for advertisers are generally appropriate. Now, there are people who don't agree with that in our business. There are people who will take money to do things we will not. I mean, the principal distinction is we will not take money to do a particular story or a set of stories. Just like you would never at any decent newspaper tell advertisers-- somebody says, I want to advertise in the New York Times business section on Sundays, and I would just like to know what's going to be on the cover for the next four to six weeks. It's actually a fair question for the advertiser in that it would be relevant to their business. And they may not be trying to undermine your integrity, but there's too great a risk that they would be, and they wouldn't in a million years tell you. We don't take money for stories. We do take money to fund beats-- health care, education, even some beats that you would describe with greater specificity. So we've had a beat supported by the Ford Foundation for a couple of years on inequality in race. But they had no idea until the stories were published that the first year under that beat, we decided to do work on housing discrimination. And the second year we decided to do work on school resegregation. So I think that works. The related issue is the relationship between the governing board, many of whom are donors, and the news. And there we've sort of had to forge our own way because this is sort of a case of first impression. Basically, we use the same rules. And the critical one is, although I work for those people and so does my partner, Steve Engelberg, our editor in chief, we never tell them what we're going to publish until we do, at all. So our board chairman called me yesterday, who's also our largest donor and our founding donor, and liked the story we did on a juvenile facility in California that we published yesterday. And he knows that the farthest he can go is he sends notes to people, trying to-- because he's also an active fundraiser for us, thank goodness. And he said, when's the next big story coming? Because I don't want to bombard people with notes. And I said next Wednesday. And that's-- I'm happy to tell you that. Next Wednesday. We've got a great story coming on Wednesday. And in his case, because he knows the people involved, I started saying it's something that Ryan and T-- and I get that-- you know, who are two of our reporters-- and he goes, don't tell me! I said, Herb, all I was going to say is Ryan and T have been working on this for months. That's it. Because he understands I am not supposed to tell him what it is about, and I never do. Second part of your question was how do we pick stories? That's Steve's department rather than mine. But the shortest answer is we're always looking to do stories that pursue our mission. So we're looking for things that other people are not writing about that we can write about, and where we think we have some chance to spur some change. And then we pick our partners based on that. Most of our major stories we do publish with partners. We've had 120 publishing partners over the years, 120 different publishing partners, which means pretty much everybody in American journalism and which means you've got to be willing to work at least 120 different ways. But that's OK. But it's all-- I hope, and we try to tie it back to the mission as much as we can. Yes? YASIN AL DEEK: Hi, my name's Yasin Al Deek. I'm a second year law student here. Thank you for taking the time to come speak with us. RICHARD TOFEL: Thank you. YASIN AL DEEK: I wanted to ask a question in regard to the point that you had made as a piece of advice to blossoming attorneys about remembering the importance of being honest when speaking with reporters. And you had made a suggestion that even if you do feel a certain pressure from clients or perhaps other attorneys with whom you're working, to not violate the ethical obligation that you have to being honest. And so I wanted to just ask you-- many of us are ambitious and young, and we're certainly impressionable. And how do we preserve that integrity as we move into a field where our successes in large part is dependent on our mentors? And how do we retain what Professor Tomiko Brown-Nagin would call the courage to dissent in the workplace? And if you just had some advice that we could keep in mind as we move forward with our legal professions. RICHARD TOFEL: Yeah, that's a heavy question. Well, I certainly deserve it for having opened the subject. I guess the first thing is pick your mentors carefully if you're serious about that. Because the ones you really ought to be wanting to work with and for probably won't ask you to do that. But even if they are, they'll be open to talking about it. And then it's not so much, I think, the courage to dissent, although that can be certainly true in extreme cases, as just the somewhat lesser but still real courage to just push back, right? That says you know, if we don't want to tell them, why don't we just tell them we don't want to tell them? I've spent a lot of time as a student studying the presidency and the press. And I had the opportunity to work in the White House Press Office when I was very young, briefly. And I still believe-- maybe because I was there at the time, but I actually think I could back it up-- that the best modern presidential press secretary was Jody Powell, who was President Carter's press secretary and-- for two reasons. The most important reason was he was by far the press secretary closest to the President. So he knew the most. He basically knew everything. And the second thing was-- so some people would say, well, that could become a problem, right? Because if you know everything, you know everything they want to know. And they know you know. And it wasn't a problem for him because almost every day at the White House press briefing-- which then, thankfully was not broadcast, but it was still a well publicized session, and there were transcripts being made every day-- he would say to them, I know the answer to that question, and I cannot tell you. People would just go, you know, OK. Not that they gave up on trying to find out, but they weren't getting it from him. So I just think it's smart. And I think people who think they are smarter than that are usually actually not. WAIDE WARNER: Waide Warner, senior fellow in the Advanced Leadership Initiative. As a fellow baseball fan, I know you must know Branch Rickey's famous quote that luck is the residue of design. RICHARD TOFEL: Yes. WAIDE WARNER: Looking back at the arc of your career and the number of accidents you had, what was the organizing principle that helped you design and make your own luck in those circumstances? RICHARD TOFEL: Wade, great to see you and Cynthia. We were soccer parents together on a travel team. And for those of you who have done any of that when you were kids, that's a big-- and this travel team lasted a long time. So these people were family to me for many years. You know, I think that the design, if you would call it that, was that every time I got-- I'm sorry, this is not going to sound great here, but want to be honest with you. Every time I got to a fork in the road where it said go this way to spend more time with lawyers and this way to spend more time with reporters, I took this way to spend more time with reporters. I have a lot of good friends who are in my law school class. Some of them even practice law. Many of them actually practice law. And they've done very well with it. I mean, just in my section, my roommate ended up being the general counsel of the SEC. And the guy I spent the most time with in the section at that time is the United States Attorney for the District of New Jersey. And Tim Cane is in the United States Senate. So they were wonderful people. But in general in life, I find reporters to be more interesting than lawyers most of the time. MARK KILSTEIN: Hi there. So jumping off your last comment, I'll introduce myself as a journalist. My name is Mark Kilstein. My partner here is a 3L, a law student. But I'm a radio reporter, a radio producer for the BBC. And I know ProPublica has done some really fantastic partnerships with radio programs. And so a bit of a personal question-- I'm curious what you see as the future of investigative journalism in the radio medium. There's a lot of talk about the future of investigative journalism in the digital age. Radio has somehow kind of bucked the trend. And, at least personally, I see it as a thriving medium today, even though it is a rather traditional medium. So yeah, I'd love your thoughts on that. RICHARD TOFEL: We have found that radio, interestingly-- this surprised me, at least going into it, that radio is enormously powerful as a medium for investigative journalism, AND frankly, much more than television. I've never been in the radio business myself, and so I'm not an expert on this. And I'm not 100% sure that even I know what I think about this. But here are some random thoughts. There is something about radio that stays with people in a way the television does not. Television, I think, unfortunately, in many cases is you laugh, you cry, and then you change the channel. And it's just over. We find radio moves people to action, and to thought, and to conversation much more. Second point-- there happens to be-- so we've had a great experience in PR and with others. I should not address this topic without briefly mentioning that I think that Ira Glass individually-- and I don't know how many of you listen to This American Life-- is just a true genius, a word I try not to throw around a lot, and is doing some of the most important journalism of any kind being done in the English language today. And every time we work with him, it seems that amazing things happen. And amazing things don't always happen with our work. So I take it that it must have something to do with him. And I'll just give you one example. He came to us with an idea about five years ago and said, so I know all the people that lost money in the financial crisis. I'm interested in your doing a story and then bringing it to us about somebody who made money in the financial crisis. And we went off, and we thought that was a great idea. And we found this hedge fund, Magnetar, that had constructed derivatives that were so successful on such a scale that ultimately we concluded they had literally delayed the financial collapse themselves, and then exacerbated it and contributed quite materially to the failure of Merrill Lynch and a bunch of other things. And they had done this by creating these securities-- or causing to be created these securities, which they then bet against, making a fortune, something that has ultimately been held to be not strictly illegal, but certainly a little tricky. So we brought it back to Ira. And he goes, for some reason I feel a musical coming on. Really? And then at the next meeting, he goes, I've got it. It's the producers! And he was right. It was. And he commissioned from Robert Lopez, who went on to write The Book of Mormon, a Broadway show tune to accompany this story called Bet Against the American Dream, which was the first time I had done prepublication review for a song. I will tell you, by the way, it's pretty much the same except if you want to change a word, you need another word of the same number of syllables that rhymes. And we ended up winning our second Pulitzer Prize off that story. So there is a level of creativity, I think, also in the best of radio today-- to come back to your question-- that makes it just a wonderful medium for us. Yes? ELYSSA SPITZER: Hi, my name is Elyssa Spitzer. I'm a 1L. So I spent the year before coming here at the Manhattan DA's office and was constantly stunned by how backwards the technology was. It was straight from the 1970s. To bring a case to the Grand Jury, there's sort of a yellow carbon slip, and then a pink one, and the different ones go different places. And individuals have case files that literally go in a cart that goes up and down the elevator to arraignments. Because you've seen an industry transition from that sort of paper files, handwriting mode to more digital information flow, et cetera, et cetera, I'm wondering what you think about the legal profession and how that might happen here. Because it needs to. RICHARD TOFEL: Yeah, you know, of course, in the place where they have resources, it's nothing like that, right? That's not really, I think, a question about the legal profession. It's a question about the financing of government. ELYSSA SPITZER: So that's similar to what you've confronted? RICHARD TOFEL: Yeah. I haven't been there even to visit in years. But I'd be very surprised if Cravath has green and yellow and pink forms and files that move up and down the elevators as opposed to zipping from place to place on shared drives and password-protected things. We woefully underfinance the government. I mean, if you wanted to say what is the uber story of probably 90% of our stories, it's a government agency has not been given the funds sufficient to do its own job. And here's what results. I mean, of the stories we write about the government, that's at some level the story. And we've been in this phase is in this country. I think it's a long-run historical phase, but I don't think it's the nature of the beast. But for the last 35 years, people have believed we spend too much on the government, except when they want to enjoy its benefits themselves in which case we're spending too little-- too little on the program that helps me, too much on all of the rest of it. And this is what you get. I mean, when I did spend those months in the city trying to reorganize the city welfare administration, one of the first questions we asked them was, can we have a map of where all your facilities are in town? No. They didn't have it. Well, can we have a list, and we'll make our own map? Uh, no. And so we went and created our own list and made our own map. This is sort of unbelievable. My wife helped create something called [? Childstead ?], which is a fairly advanced computer system to track cases at the Agency for Children Services in New York. But that was eight or nine years ago, maybe 10 years ago. Before that, they were literally tracking child abuse cases on index cards. That was it. DEAN MINOW: So I have a follow-up to that question, because I think everything that you say about the underfunding of government sounds absolutely right. But there's still a further question about the disruptive changes of doing business because of technology. And so that's a lot of why your organization exists. And I'd be interested to know what the crowd sourcing of data does or being able to put data out. How do you do journalism differently? And also, if you could speculate back, what does that mean that lawyers could do? Because simply digitizing what lawyers have done historically isn't taking advantage of what the technology could be. And people are beginning to crowd source contract language, for example. Or to meet the needs of low income people, to figure out ways that you can have remote advice, but also groups of people helping each other, rather than one by one by one legal advice. RICHARD TOFEL: So two things. Crowdsourcing, per se, is tricky. And I think we're still learning how to do it effectively. The most effective experience we've had, I think, with it is in a formal sense with something we called Freed the Files, where we did a bunch of reporting in early 2012 on the fact-- records kept in television stations at the behest of the FCC on political advertising. And we and others I think managed to pressure the FCC in the middle of 2012 into finally releasing some of these records. But largely at the industry's behest, they then decided to release them all in PDFs. So you basically couldn't do anything with them. But some of our technology folks said, you know, what we need to do is we need to review every one of these scores of thousands of documents just to categorize them in various ways and code them. We can't do it, but it's actually not hard to do. It's just a question of time. So we asked people to help us, and they devised a system. Please look at this thing and answer these five questions about it. And they created-- which the miracle part of this to me is they created a thing where it would serve up the document to you randomly. And then it would only count the answer if another person who had been served up the same document randomly gave the same answers because you wanted to prevent people from gaming the system. And then it would download it. And we pulled in hundreds of thousands of records that way and were able to do some very important reporting. For instance, the best story we got out of it was that we were able to prove that much before the election, that most of the money being spent on both sides of the United States Senate race in New Mexico was dark money. And what that means, by the way, if you just think about it for a moment, is somebody's going to be elected United States senator from your state, and you have no idea to whom they are indebted. And here's the important thing. You have no idea. They know exactly who it is. So for that kind of thing, crowdsourcing is great. The original notions of crowdsourcing in journalism were, we're going to ask people to do journalism. And that is like citizen brain surgery. Journalism, like anything else, like the law, it's hard, and there are people who are really good at it, but actually not all that many. And it takes some training and experience. So that stuff doesn't work. Then to go back to the data point. I think what's turned out to be the most powerful is national databases that are localizable-- if that is a word-- where we can invest and have a lot of time, a lot of resources, in creating something that tells a picture across the country, and we'll write a national story about it. But then we've been quite intentional, and I think we've learned how to do this pretty effectively. To tell local news organizations and to help local news organizations, we create what we call Reporting Recipes and we have conference calls so that-- for instance, we just did this with workers' compensation. We're doing a lot of work right now on workers' compensation. And the thrust of that work is basically to two effects. One, that there has been a very dramatic decrease in the payout through workers' compensation in the last 10 or 15 years in this country, which means there's a huge transfer of wealth going on from workers to employers. Now, that may be good. It may be bad. You are entitled to your own views about that, but it's a fact. And it's not a widely recognized fact. The second thing is there are-- because workers' comp is a state by state system, there are incredible disparities. If you lose an arm in this state, you get-- I think it is 20 times as much as if you lose your arm in the state of Alabama. Now that just makes no sense. And I think everyone agrees that it makes no sense. Whether the number in Massachusetts is the right number or not, we could have a fight about it. But the real point on local localization, or whatever you want to call it, is the Boston Globe or anybody else can do that story here in a day. To say here's how Massachusetts compares to Rhode Island, Connecticut, Vermont and New Hampshire-- boom, boom-- and take our year of work into a couple of reporter hours and produce a good story. And they're doing it. And that makes a big difference, then, in the reach of the stories, the impact they have. It's made a big difference, I think. Yes? JENNIFER CHUNG: I'm Jennifer Chung, second year law student I was wondering if you'd be willing to talk about some of the stories that didn't pan out and at what point you realized that a story wasn't going to effect the change that you were looking for or didn't lead to some hypotheses you'd had originally. I don't know how much you can tell us. RICHARD TOFEL: Sure. There are lots of stories that don't-- first of all, most stories don't actually spur change. I mean, one of the critical things in our business, as in, I think, every business, is if you're evaluating your own success, you have to have some sense of how often you should be succeeding. You know, I'm a big baseball fan, so I sort of think about this as batting average. I think it's actually helpful because for those of you who know baseball, and I'll try to make it so the rest of you can follow along, the bottom line here about baseball is if as a hitter if you can succeed four times in 10, you're the best there ever was. If you fail, that is to say, if you fail six times in ten, you're the best there ever was. If you only can succeed two times out of 10, they will not let you participate at the highest levels. So this is a very narrow range. They have a lot more experience because they've got 125 years and thousands of people and all of that. We don't know that much, but I know enough to know that in our business you will actually not succeed most of the time. Philanthropy, for instance, is another business where you will not succeed by any reasonable notion most of the time. You have to know that to evaluate whether you're succeeding. You also have to have some rough sense of how often should we be succeeding. So that's one thing. We usually sort of poke around a little bit before we make a major commitment to a story. If we do that, there's usually some story. It just may not be as good a story as you thought. There are dry holes. There are more often sort of quasi-dry holes, or stories where you go, yeah, it's a story, but it's not the great story that you thought it might be. That happens a lot. In terms of things you thought would have impact, I'll just tell you very quickly. A story that I was certain was going to have immediate impact was three and a half years ago, we did a complicated data analysis that proved, I think, mathematically that there is racial bias in the presidential pardon system. And you are four times as likely to get a presidential pardon if you're white than if you are black, and did exactly the same thing and had the same circumstances. And proving that was very hard because you had to normalize this, and you had to get all the people who had not gotten pardons. Anyway, it was a big thing and took a lot of work. But we did it, and nobody has really challenged the accuracy of that finding. And as you may know, the presidential pardon process is basically the one royal prerogative-- I think it's the only one-- in the Constitution. The President's power is completely unreviewable. Just to give you an example of what that means, if Bill Clinton went on television tomorrow and said, you know, I actually took money from Mark Rich to give him that pardon, nothing would happen. Nothing. The sole remedy for that is impeachment. And he left the presidency the day after he gave him the pardon. So I thought, well, there's only three people that are going to really have an impact on the story. And we managed to get the story on the front page of the Washington Post. They were our partner. And the three people are African American lawyers, most of them graduates of this institution-- the President of the United States, the First Lady of the United States, and the Attorney General of the United States. And I thought, well, this is a lay-up. They've read it. I knew they read it. We took steps to make sure they actually read it. And they did. And nothing happened. Because, we are told, the political people came in and said we're too close-- this is late 2011. We're too close to the election to do something this high profile on behalf of black people. So they set in motion a review process. And they will, I believe, fix it before they leave. But it may be, literally, as they're going to turn out the lights. That's another thing about spurring change. Sometimes it takes a long time. DEAN MINOW: Well, we could continue to talk with you a long time. But we're going to stop the formal session and just say thank you. But if you could hang around and talk, that would be great. RICHARD TOFEL: Yeah, great. Thank you. [APPLAUSE]

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