May/June 2003  Volume 29, Issue 4
April 2003 Issue
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Dealing with the Media:
How to Protect and Enhance Your Clients' Interests
by Monica Bay
Should you speak on or off the record? Interrupt a meeting for a reporter's call? Complain about errors in print? You can build your reputation and advocate your client's cause by responding appropriately to the press.

There's an old Chinese proverb: "Crisis is danger and opportunity." When a reporter calls you or your client, looking for comment on a trial or seeking expert analysis of a breaking story, you need to act quickly, yet carefully—not only to protect but also to enhance both your client's and your own interests.

In the fast-paced world of sound bites and quick quotations, dealing with the news media can be overwhelming and unnerving. It's natural to feel intimidated by a reporter's call, but if you understand how the news process works, you can better respond to the inquiries.

The Reporter's Motivation: To Be Complete and Accurate
In working with news media, the first thing to understand is the motivation of the reporter. With breaking news, every journalist's goal is to get the story fast and right. Fast and wrong can put the reporter in the unemployment line.

By definition, reporters face tremendous deadlines. Journalists frequently are handed verdicts or thick court documents, with virtually no time to read them, and are then expected to make instant sense of the documents and translate them into plain English for the public.

Good reporters pride themselves on being evenhanded, nuanced and accurate. They are not interested in championing any one side of the case.
They just want to get the whole story—and get it right.

The Ground Rules: When-and When Not-to Speak Out
Even reporters from the best news organizations disagree about the ground rules. So before you open your mouth, be sure that you and the reporter negotiate exactly what attribution will be used if your comments appear in the story.

On the record. Unless otherwise agreed before you start talking, reporters will assume that you are speaking on the record—and that they can quote you by name, rank and serial number. Responsible reporters always identify themselves and clearly state that they are interviewing you for an article. But you should assume that anytime you talk with a reporter (even at a cocktail party), you are on the record. Do not ask for "retroactive off the record." It marks you as a neophyte and puts the reporter in a very awkward position.

Off the record. Here's a very simple and very effective rule: If you do not want to see information in print (or on the air), keep your mouth shut. You have a right to remain silent; you do not have to answer any question posed by a reporter.

If you tell a reporter something off the record (which can be a wise choice), do not feel betrayed if you see that information in print. It doesn't mean that the reporter double-crossed you. It means that he or she was able to confirm the information via other sources. Do not make the mistake of thinking that just because you told a reporter information on an off-the-record basis, the reporter agrees not to use that information at all.

In many cases, making off-the-record comments can be an effective strategy. It can be extremely helpful to you and your clients in situations where you cannot be quoted, but you want to guide reporters in the right direction to help them understand the context of a story. An off-the-record briefing can also help the reporter determine what questions to ask of the next interviewee.

For example, let's say a high-profile lawyer has left your firm. On the surface, it might look like a potentially devastating personnel loss. In reality, however, the partner was underperforming, bored and clearly in need of a change. By talking off the record, you can help "spin" the story so that the reporter understands the true agendas of the players, as well as the ramifications for the firm of the partner's departure. What might at first blush look like a front-page story then gets the proper perspective as a small "People" item.

Here's another example: You represent the Wow We're Really Big Insurance Company, which has an ironclad policy forbidding its lawyers from being quoted in the media. WWRBIC is sued by Scorched Earth L.L.P., a hot plaintiffs' firm with a penchant for convening well-attended press conferences, where its miniskirted chief litigator fires off sizzling sound bites. While you can't talk on the record, you might consider using an off-the-record conversation to brief the reporter (who is struggling to make sense of the litigation and is, of course, under deadline) about the case issues, from your perspective. Although it won't get your name in print, this tactic can help the reporter analyze the issues and present balanced coverage.

On background. This is a vague term, and good journalists argue about its definition. Many consider it the equivalent of "judicial notice." If you tell me, on background, that the sky is blue, I run your statement (without attribution) at my risk. In other words, you are telling me that I can use your material-but without attribution. (This is a different nuance from off the record, where I cannot use the information unless I get it elsewhere.)

But it's a risky practice—and most journalists will use this information only for almost-self-evident statements. Reporters avoid nonattributed statements about material facts because such statements undermine an article's credibility.

Not for attribution. The most important rule here: Agree on exactly how you will be described before you start talking. Many reputable news organizations forbid their reporters to use vague terms such as "sources say." The journalist's goal is to identify you as precisely as possible, so readers can evaluate the extent of your credibility. Your goal probably is to disguise your identity, so your colleagues won't be able to figure out that it was you who talked to the press.

Therefore, if you are one of three women superior court judges in Widget County, which has 45 judges, you probably would be comfortable with an attribution of "a Widget County superior court judge said…" but highly uncomfortable if the word "female" was added to the attribution.

How to Build Relationships with the Press
To enhance the quality of coverage you and your clients will receive, you want to build credibility and trust with the journalists who cover your firm and practice areas. Sources quickly earn reputations within newsrooms. A good reputation can result in increasing numbers of phone calls asking your opinion about breaking news, which helps establish you as an expert in the legal community.

Here are tips that can improve your dealings with news media personnel.

Don't question motivations. Everybody brings their life experiences and perspectives to their jobs. Reporters are no different. But good reporters make every effort to see all participants' points of view and to be aware of their own "biases." Asking a reporter, "What is your point of view?" "Whose side are you taking?" or "Are you writing a hit piece?" will shatter your credibility with the reporter.

Respect deadlines. Reporters often face severe deadlines. It's not uncommon to be handed a court decision and asked to write a front-page story in an hour. Your office should have a strict policy on media calls, to be sure that calls from reporters are returned immediately. This may mean that your support staff know to interrupt you, even if you are in a long session with an important client.

If you cannot be reached, your staff should know who can speak in your place. Not returning a call in a timely fashion can result in a missed opportunity to advocate your client's position to readers or TV viewers. And it can even look evasive: "Attorney John Doe could not be reached for comment."

Instruct support staff to always ask reporters the exact deadline time (although reporters usually volunteer it). Do not, however, expect reporters to discuss the story, or what questions will be asked, with your support staff. Reporters don't have time, and they don't want support staff running "interference" for them.

Know the art of "news speak." Remember the advice you give to deponents: Answer only the question asked; don't volunteer; and under no circumstances speculate. As a general rule, these are good guidelines when dealing with reporters (although you may want to volunteer information). Here are other, specific dos and don'ts:

  • Do speak in simple, declarative sentences, and speak slowly. The reporter will be either typing or scribbling notes.
  • Do use the same tactics you use when talking to a jury (that is, KISS—keep it simple, stupid).
  • Don't speak in legalese (although sometimes it is an effective tactic if you want to look cooperative but don't really want to be quoted).
  • Do take your time (repeat the questions back if you need a moment), and speak in sound bites.
  • Don't speculate or guess. If you don't know the answer to a question, and there is enough time, tell the reporter you will find out and get back to her or him. Or suggest somebody who does know the answer, and provide a phone number.
  • Don't patronize the reporter.
  • Don't assume that a legal journalist is a non-lawyer.
  • Don't assume that the reporter is familiar with the matter. Remember that while you are intimately familiar with the subject, it's possibly brand-new to the reporter.
  • Do ask if it would be helpful to do background or off-the-record comments first. The journalist might have a loose deadline and you might be his or her first interview. In that case, your briefing might be welcome. Or the reporter may be right up against the wall and need only a few confirming quotes before filing the story.

Steer Clear of the "No Zone": A Fine Balance Between Less and More
There are several other items on the "Do Not Do" list of successful relations with the media.

  • Avoid the temptation to say "no comment." It makes you look evasive, even if you have a perfectly legitimate reason or mandate. If you cannot comment, tell the reporter why. For example, "I'm sorry, but the canons of judicial ethics prohibit me from discussing a pending case." Or, "I'm sorry, but my client's policy is that we do not discuss pending litigation." Or, "I'd be happy to get back to you after I've had a chance to review the court documents."
  • Don't hide from bad news. It's always better, in the long run, to admit problems and talk about what is being done to resolve them, rather than to try to dodge them. Remember that you are building credibility with the reporter and the public. If they see you are trustworthy under fire, they will believe you when you are celebrating good news.
  • Never ask a reporter to read back the story to you. Professional, experienced reporters will never agree to this. It is, however, appropriate for you to ask a reporter to read back your quotes. Caveat: Use this with caution (especially in tight deadlines) and only if you are concerned that the reporter may not have understood you. It implies a lack of trust in the journalist.
  • Don't ask for "publicity." Reporters write news; they do not write publicity. If you call reporters and tell them you want publicity, their eyes will glaze over and your phone call will be transferred to the newest editorial assistant—or the ad department. You want to be perceived as being newsworthy, so think twice before you crank out that puffy press release or leave a breathless voice mail. Less is often more.
  • Don't try to intimidate a reporter. Don't bully, threaten, argue or use sarcasm when dealing with journalists. Just as those tactics bomb in the courtroom, they will bomb in print. Sarcasm may sound funny over the phone, but it can be deadly in a newspaper.
  • Don't let a reporter intimidate you. It's sometimes difficult for lawyers, who are accustomed to asking the questions, to be on the other side of the "microphone." If you are nervous, it may break the ice to just admit it. If it's your first press interview, say so.
  • Don't answer a question if you're not comfortable. Reporters may not be aware of specific ethical constraints you face from your state bar. Explain those constraints if answering a certain question would be inappropriate. If you sense that the reporter has an "agenda," challenge it politely. Rephrase questions to redirect the inquiry. Use the same people skills you use with opposing counsel or when readying a witness. You'll do fine.

Complaining: What to Do When Mistakes Happen
Even the very best reporters make mistakes under the pressure of deadline. Most reputable news organizations are eager to print corrections when mistakes occur. Nonetheless, as a practical matter, in terms of building long-term relationships with reporters, use good judgment before complaining about a story. If it's a truly minor matter (your shirt was blue, not green), you may want to let it ride.

But if there is a material error in a story, or if you are misquoted, it's appropriate to complain. The first thing you should do is call or e-mail the reporter and respectfully request a correction. Many publishers run corrections policies prominently in their publications, which contain instructions on how to generate corrections in print. Don't scream, don't threaten, don't be a jerk and don't go over the reporter's head unless provoked.

Distinguish between mistakes and opinions. Just because you don't like a story's spin doesn't mean that it warrants a correction. Sometimes, the better approach is to write a letter to the editor. Or to take the reporter out to lunch for a longer discussion.

If you are not satisfied with the correction or other response you receive, then it certainly is appropriate to contact the reporter's editor.

The Endgame Is Credibility
The bottom line to successful relations with the media is the same as the bottom line to successful relations with your clients: credibility.

If you respond to media inquiries in a timely fashion, with jargon-free, clear, concise comments, you will not only be a strong advocate for your client, but you may also find your phone number on reporters' "usual suspects" list when they need fast-breaking comments from an expert!


Monica Bay ( LFI@amlaw.com) is a California attorney and Editor-in-Chief of Law Firm Inc., and Law Technology News, published by American Lawyer Media, Inc. She lives in New York City and Lakeville, CT.

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