Ethical and Prudential Considerations
In today’s information environment, “no comment” is an unsatisfying and, arguably, ineffective way to manage media inquiry into a client’s recent litigation developments or participation in a high-profile trial. The vast majority of media inquiries about high-profile trials take the form of the standard investigatory questions—who, what, where, when, why, and how?—and can be answered in almost every case consistently with ethical constraints and without revealing strategy or privileged information.
That said, and notwithstanding the First Amendment, a lawyer’s ability to interact with the media is not unbounded. Rule 3.6 of the ABA’s Model Rules of Professional Conduct—and similar state rules—contemplate a fairly broad range of allowable “extrajudicial” and publicly disseminated statements by lawyers so long as they will not have a “substantial likelihood of materially prejudicing” an ongoing judicial proceeding. Moreover, the rules—with some limits—allow a lawyer 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.”
Deciding whether to speak with the media about a pending case, however, requires more than familiarity with the applicable rules of professional conduct. At a minimum, a lawyer (and client) must consider custom and practice in a particular venue, an individual judge’s perspective on the practice, and standing orders (short of a “gag” order) before returning a reporter’s call or email.
Know Your Media
Increasingly clients, especially publicly traded companies, understand that “no comment” does not well serve the wide variety of stakeholders interested in the progress and outcome of high-profile trials. Shareholders, creditors, rating agencies, customers, suppliers, and employees are just part of the audience for timely, accurate, and factual information about litigation, its progress, and potential outcomes. Arguably, such information is more credibly and carefully delivered by a lawyer familiar not just with the litigation but with the associated privilege and strategic considerations, as opposed to a “corporate spokesperson.”
Effective communication about litigation requires a relationship of trust between the media and the messenger. That relationship can and should be developed long before the walk up to the courthouse steps as trial begins. While the media rarely should be considered an “adversary,” an attorney must account for the media’s relationship with the client. Most clients involved in high-profile litigation have relationships (amicable and otherwise) with the media outlets and reporters interested in their industries or issues. Often media organizations and individuals have a history of reporting that should be reviewed before sitting down with a reporter to discuss a high-profile case. Understanding the perspective of these organizations and individuals is an important first step in developing a working relationship with them or establishing the rules of engagement for future interactions. Knowing and confirming how they define conventions such as “deep background,” “background,” “unsourced,” and “for attribution” are essential to serving your client well in any interaction with the media about high-profile litigation. Likewise, developing such a relationship compels counsel and client to be willing to speak regardless of outcome. In fact, it is often more important to stakeholders that a client comment on an unfavorable result if to do nothing more than demonstrate willingness and optimism about an appeal or related proceedings.
Strategy and Execution
As in other areas of the practice, however, “what” you can do is often no less important than “whether” to do it or “how” it is done. Any interaction with the media about your client should be strategic and executed with a high level of skill.
Litigation communication must be strategic in the sense that it must be consistent with, and advance, a client’s public profile and litigation objectives. It must be strategically timed and strategically sequenced to predict, or promptly respond to, what others (often unconstrained by ethical rules or without concern about accurately describing the relevant facts) will say or have said about the litigation. Much like an effective opening statement, litigation communication requires organizing undisputed and indisputable facts around an important theme or narrative that resonates with the target audience.
Litigation communication must, likewise, be well executed. That is to say, it requires an understanding of how the media work and the media’s fact-gathering conventions. Whether by appointment, on the courthouse steps, or in the client’s parking lot, no one involved in high-profile litigation should be unprepared to publicly recite and advance three to five important litigation “basic truths.” For some individuals, the response necessarily is to refer the interrogator to the lawyer or lawyers or other executive willing and able to provide the requested information. For others, there should be well-crafted and well-rehearsed responses to what should be easily anticipated questions, even hostile ones, about the litigation. Not merely “talking points,” these responses should be the result of a collaboration between client and counsel designed to develop an accurate, credible, and consistent litigation communication strategy.
While the process usually unfolds in a predictable and orderly fashion, any lawyer or client involved in high-profile litigation must be prepared for the “ambush interview” in its variety of forms. Again, preparation is essential to avoiding the unfortunate sound bite or “hand in the camera” visual that so often (unfairly) defines a client and its litigation situation. Just as the benefits of a “moot court” are well understood by trial and appellate attorneys, rehearsing such scenarios with a client is never a waste of time in a high-profile litigation.
Different Forms of Effective Communication in Different Media
Likewise, effective litigation communication can take a wide variety of forms. The visual display of quantitative information, compilations of publicly available documents, executive summaries of recently filed motions or briefs, presentations to editorial boards, the creation of websites or webpages to organize or disseminate court filings and orders, videotaped trial testimony, and video “B roll” prepared by the client are all appropriate complements to the typical “for attribution” responses to media inquiry.
In addition, today’s media are not your grandfather’s (or senior partners’) media. In many of our not-so-distant professional lifetimes, the “media” consisted of well-known newspaper, radio, and network television reporters. Cable TV spawned dozens of new networks focused on finance, specific industries, and litigation itself. And then came the growth of the internet and social media. Social media—among them, Twitter, blogs, and other websites—function to investigate and publish information about clients and their legal and regulatory challenges. More importantly—unlike traditional print or broadcast, where a writer (and his or her source) had time to consider and develop a response to such inquiries—in today’s media environment, the “deadline” is now. Instantaneous information isn’t always accurate or insightful, but it creates a variety of challenges for lawyers and clients participating in a public discussion about high-profile cases.
Televised trials are another relatively new development and consideration associated with litigation communication. No longer are your words, arguments, and body language being evaluated only by the fact finder. A broader audience—judges with related cases, regulators, prosecutors, potential expert consultants or witnesses, employees and their families, potential employees, lenders, investors, etc.—is now forming opinions about the client, witnesses, counsel, and litigation merely by observing the proceedings being broadcast. In high-profile cases, lawyers are often expected to make remarks on their way into or out of court each day. Again, any such interaction must be strategic and well executed, not random and ad hoc. Counsel and client must collaborate on the message and messenger.
Extra Care in What You Say
Finally, and to restate the obvious, any interaction with the media has the potential to create evidence that may be admissible against a client in subsequent proceedings. In a case I observed as a law clerk, a defendant commented on a jury verdict by promising appeal and asserting that the jury’s eight-figure punitive damage award could be “paid out of cash on hand.” After a reversal on appeal and then on retrial, that statement was a focus of the plaintiff’s (successful) closing argument on the minimum punitive damage award necessary to punish and deter the defendant.
Dealing with the media is not the primary or most difficult aspect of representing a client in a high-profile trial, but well designed and well executed, it can make an important contribution to a successful representation.
