Everyone Is a Juror
Gone are the days when a vast majority of white-collar criminal cases went unnoticed by the media. Now anyone with a smartphone and an account on Twitter, Facebook, or Instagram (and even TikTok, YouTube, Reddit, WeChat, etc.) can share news about your client’s white-collar case or shape public opinions about your client. While you wait for your 12 jurors, you may have 12 million insta-pundits deliberating in real time on every last bit of gossip and inadmissible evidence they can find about your client on the internet.
Media as Offense and Defense
While this type of media attention can be daunting for your client, it also presents an opportunity to shape opinion in a complementary and less-regulated arena. An experienced attorney, supported by in-house (or retained) communications strategists, can seize this moment. Whether the client is a company or individual, a savvy lawyer can use the media frenzy to the client’s advantage—or at least soften the impact of damaging news coverage to avoid reputational harm.
Stockholders, investors, and the general public often don’t read court filings—but they all follow the media. It is critical to target this necessary audience by
- determining and crafting your message;
- identifying the people who need to hear it; and
- ensuring that the dissemination of the message gets through to those who matter to your client’s brand and reputation.
The best lawyer may defeat the investigation or win the court case but must also focus on how to set up the client for survival after the crisis is over. Otherwise, the legal win becomes a Pyrrhic victory, while the client’s reputation is left in tatters.
“Survive and Thrive”
The media communications strategy must be twofold: (1) survive the crisis and (2) thrive by creating a platform for future success.
You must be proactive rather than reactive and caught off-guard. The moment a client learns that he or she is involved in an investigation, you must prepare a sound media strategy (or even have one prepared in the event an investigation breaks). The hotter the story, the bigger the crisis, the shorter the press deadlines. Often reporters give lawyers mere moments to comment before running a story, so it is important to prepare a strategy that can be executed on a moment’s notice.
You must also consider the upside and downside of sharing information with the reporter prior to publication. Sometimes, providing accurate background information will supply proper context to ensure the story is fair, even favorable to your client.
To Speak or Not to Speak?
Most lawyers who are afraid to speak with the press fall into one of three camps:
- those who refuse to engage with the media at all costs;
- those who state only “no comment”; and
- those who think they communicate well with reporters but lack the adequate experience to do so.
All three of these positions pose threats to the client.
Avoiding the reporter overlooks an opportunity to relay a strategic message to the public about the allegations. Sometimes, stating “no comment” is even worse than saying nothing because it leaves the public thinking there is no defense and the client is guilty. While attorneys and courts believe in the presumption of innocence and the constitutional right to remain silent, jurors and the public do not. They want to hear your client’s “side of the story,” especially when your client is already a household name. Media consumers expect to be informed. Ignoring the press or making no comment fails to inform the reader of anything.
Recycled statements such as “the client is looking forward to his day in court” or “the client rejects the allegations” are just as bad. Not only do they fail to inform the reader of anything new—indeed, most people ignore them and assume you have nothing real to say—they also fail to rebut inaccuracies in the remainder of the article. In short, such statements waste an opportunity to inform or shape the narrative, in execution of your client’s goals or media strategy.
The right strategy and messaging from an attorney experienced in dealing with the media will position the client for future success regardless of the outcome of the investigation or case.
Move the Judge and the Public
A change of venue to a location where your client can receive a “fair” trial is, in many cases, no longer possible because you must assume that every potential juror has already heard (and formed opinions) about your case in the media (on television or the internet). Thus, having a strategic communications specialist embedded within the legal team provides a necessary perspective on both legal and non-legal strategy. The communications professional can provide insight as to how the legal arguments will play with the public. This serves the long-term interests of the client and the short-term goal of defending the legal matter. Again, the client cannot survive long term, even with a short-term legal victory, if the media strategy does not focus on the big picture.
Consider Media Resonance in Your Litigation
All federal courts and most state courts provide free, real-time public access to case filings and dockets. The experienced lawyer expects that for high-profile clients, the press will read every motion filed and every ruling handed down. The higher the profile of the case, the broader the audience of non-lawyers and armchair experts. Legal briefs in high-profile cases should be written with the media and general public in mind. Try to avoid unnecessary legalese or jargon. Make a point simply and concisely to get your client’s message across to the non-lawyers (and the judge, who will also appreciate simplicity and concision).
The communications specialist can help develop and fine-tune your client’s messages. But more than that, the specialist can also use his or her connections to identify and connect with all journalists who cover the relevant issue, including those who are potentially friendly (or at least open-minded). This sort of media reconnaissance is as critical as when lawyers ask their colleagues about an unfamiliar judge. Knowledge is power.
Prepare, Keep It Short, Repeat
A lawyer’s call with a reporter must be planned to convey a deliberate message. No matter what question a reporter asks, you must focus your response on clearly hitting your key themes and messages. Otherwise, the most important points may get lost in the weeds. Reporters likely will quote only a few sentences, at most, so stay on message!
Mind the Rules
Lastly, attorneys must keep in mind their professional obligations and local rules regarding communicating with the press. Model Rule of Professional Conduct 3.6 addresses trial publicity and prohibits an attorney from making an “extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”
However, the model rule specifically provides an exception for an attorney to “make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.”
Check your own local rules, and do not break them. However, note that none of the rules prevent a lawyer from filing motions in a way that effectively influences the judge and the public.
A successful legal and media strategy in a high-profile case requires that the attorney
- plan the legal strategy with the media in mind from the beginning;
- engage a trusted communications advisor who specializes in litigation support (but consider the attorney-client privilege ramifications);
- develop a proactive media strategy that complements the legal strategy;
- position the client to survive the crisis and thrive after the investigation concludes;
- be prepared to convey a succinct, clear theme to the press;
- comply with ethical obligations; and
- win the legal case (of course!).
Media strategies must be tailored to the client and investigation or case at hand. But, in the digital age of “trial by media,” having an effective communications strategy is a crucial component in protecting any client’s interests in all phases of a white-collar legal battle. Often, for our clients, a win in court is not enough; you must win in the court of public opinion too.