O.J. Simpson, Michael Jackson, Anna Nicole Smith, Enron, Andrea Yates. Cases are not being fought just in the courtroom any more. To the contrary, more disputes than ever are tried publicly through the eye of the media’s camera, creating risks to reputation even if the case never sees the inside of a courtroom. Negative public sentiment can affect trial outcomes and reputations alike. Many attorneys are not comfortable in the media arena. They simply declare that they will not try their client’s case in the media and hope that statement will satisfy their critics. However, with today’s media saturation, silence is not golden, it is guilty. Bad publicity can drive down a client’s stock price even as it increases pressure to settle out of court. With that in mind, attorneys should approach each case with the scrutiny of a journalist, determine the publicity potential of the client and/or the event, and then create a media plan of action to help protect a client’s reputation before, during and after trial.
Reality versus Fiction
The public has always loved the high drama of a courtroom, beginning with Perry Mason, through L.A. Law in the 1980’s, and most recently, Boston Legal. At times, the lines between courtroom reality and fiction blur, as evidenced in the Andrea Yates trial. Yates’ 2002 conviction was overturned after Dr. Park Dietz, a forensic psychiatrist, told the jury that before the drownings, NBC ran an episode of Law & Order about a woman who was acquitted by reason of insanity after drowning her children. It was later learned that no such episode existed.1
Much like Roman times, when the masses would flock to the Coliseum, people are drawn to real-life legal cases and the attorneys involved. “It’s sort of the modern-day equivalent of the gladiator,” explains high profile litigator Roland Garcia2 of Greenberg Traurig, LLP. “The last place where you truly have people duke it out, and its life, liberty and property on the line.”
Clearly, high profile litigation delivers big ratings and big money to the networks and media outlets because the public is increasingly riveted by the human drama played out on their televisions and newspapers. The public wants more and, like it or not, the media outlets are ready to deliver.
Today, many attorneys use media plans at the earliest phase of litigation to ensure quicker resolutions, sometimes even creating leverage for settlements, while protecting a client’s rights and financial future. Some firms hire outside media relations professionals to handle the media surrounding a high profile case, while others take on the task themselves. Developing a media plan for a high publicity client or event is crucial. If attorneys and their clients wait too long, they may lose the chance to strategize and may end up fighting an uphill battle.
A media plan can be indispensable for a lawyer with a high profile client. Roland Garcia has worked for a number of high profile clients, including national banks and oil companies. Garcia says once he determines his client has high publicity potential, there’s no time to waste if he wants to protect not only his client’s reputation but also future profitability. Garcia tells his clients, “Do you have a plan? If not, let’s develop a plan. You can get a professional to help you with it or we can talk about it and I can tell you what I think. You want to develop a protocol on what is the message, who is the messenger, what are the ethics of delivering the message.”3 Garcia adds, “You need to make sure the message is consistent with your firm’s policies, with the rules of professional conduct, with case law and your personal exposure on business disparagements and defamation and things of that nature.”
A media plan requires determining the audience and its current perception of one’s client. Once the audience target is understood, the attorney and the client need to determine the message, which should be crafted to reinforce the company’s proactive stand on the issue, protect the company’s stock price, and correct any negative impressions raised by the opposing counsel. The public’s reaction to the media plan must also be constantly examined through focus groups to determine if the message should be modified to reflect the public dialogue.
“I have a litigation checklist I give my clients to go through each time they take on a new case,” says litigation media specialist Miranda Sevcik of Media Masters, who states:
The list includes: Is this lawsuit unique, out-of-the-ordinary, or otherwise man-bites-dog? Does this case involve sensational facts? Does the case make new law? Does the opposing counsel have a history of publicizing his or her cases? Does the case involve a large amount of money? Is the case indicative of a trend, or have broad implications as a business story? If the answer to any of these questions is yes, chances are that media outlets will pick up the story. Whether the outlet is national news or a trade magazine, the client’s message must be protected.4
Mark Lanier,5 a successful personal injury trial lawyer, puts it this way: “You don’t use the media to change your results at trial, but if you don’t handle the media right, the perceptions publicly can be very damaging.”
Martha Stewart provides a cautionary tale about dealing with the media improperly. She enjoyed phenomenal popularity and a soaring stock price until October of 2002, when the assistant to her stockbroker admitted to passing inside stock information to Stewart about the ImClone stocks and agreed to testify against her. After tersely refusing to answer a direct question about the insider trading accusations on CBS’s The Early Show, Stewart resigned from the board of her own company. That same year, Martha Stewart Omnimedia reported a 42 percent drop in their third quarter profits.
The Rules of Professional Conduct and Free Speech Rights
Every lawyer needs to be familiar with the Texas Disciplinary Rules of Professional Conduct, especially Texas Rule 3.07.6 This rule is modeled after ABA Model Rule 3.6.7
Rule 3.07 provides:
(a) In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel or assist another person to make such a statement.
(b) A lawyer ordinarily will violate paragraph (a), and the likelihood of a violation increases if the adjudication is ongoing or imminent, by making an extrajudicial statement of the type referred to in that paragraph when the statement refers to:
(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness; or the expected testimony of a party or witness;
(2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense; the existence or contents of any confession, admission, or statement given by a defendant or suspect; or that persons refusal or failure to make a statement;
(3) the performance, refusal to perform, or results of any examination or test; the refusal or failure of a person to allow or submit to an examination or test; or the identity or nature of physical evidence expected to be presented;
(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; or
(5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial.
(c) A lawyer ordinarily will not violate paragraph (a) by making an extrajudicial statement of the type referred to in that paragraph when the lawyer merely states:
(1) the general nature of the claim or defense;
(2) the information contained in a public record;
(3) that an investigation of the matter is in progress, including the general scope of the investigation, the offense, claim or defense involved;
(4) except when prohibited by law, the identity of the persons involved in the matter;
(5) the scheduling or result of any step in litigation;
(6) a request for assistance in obtaining evidence, and information necessary thereto;
(7) a warning of danger concerning the behavior of a person involved, when there is a reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
(8) if a criminal case:
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
Thus, Rule 3.07 sets out a “substantial likelihood of material prejudice” standard in governing a lawyer’s extrajudicial statements. Most obviously, a lawyer should not make statements intended to influence the judge or jury or to affect the outcome of a trial. Such statements will surely subject that lawyer to discipline by the State Bar. On the other hand, Rule 3.07, Comment 3, advises that whether there is material prejudice depends on the circumstances in which the statement is made. For example, a statement may be allowed if it used to counter the unfair prejudicial effect of another public statement.
Rule 3.07 gives lawyers some guidance on what they can say to the media. Although not exhaustive, part (b) gives examples of what types of statements to the media are impermissible, and part (c) gives examples of those that are permissible. As with any rule, there are gray areas that cannot be addressed with certainty and if a lawyer has any questions, it is best to pose those questions to those experienced in dealing with the media.
A lawyer should also keep in mind United States and Texas Supreme Court decisions regarding lawyers and their own free speech rights in talking to the media. The United States Supreme Court, in Gentile v. State Bar of Nevada,8 ruled that a State Bar can properly regulate the speech of lawyers by not allowing public statements that will have the substantial likelihood of materially prejudicing an adjudicative proceeding. The Court explained that the “substantial likelihood of material prejudice” standard is a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the State’s interest in fair trials.
The Texas Supreme Court, in Davenport v. Garcia,9 addressed the propriety of entering a so-called “gag order,” a court order forbidding public reporting or commentary on a case currently before the court. A gag order in civil judicial proceedings will withstand constitutional scrutiny only where there are specific findings supported by evidence that imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and the judicial action represents the least restrictive means to prevent that harm.10 Some judges will issue a gag order in high profile cases if they feel that media attention will make it hard to find an impartial jury pool.
Once the rules restricting an attorney’s communication with the media are understood, it is important to determine whether and how to get a client’s message out to the media. Developing relationships with key reporters who will be writing a client’s story is crucial. “Most lawyers who deal in high profile cases have already established relationships with reporters,” says Lynne Liberato11 of Haynes and Boone. “(But) you still have a duty of truthfulness to the court, respect for the judicial system, the administration of justice, the duty to your client and all those kind of entities.”
A positive relationship with the media can pay dividends to an attorney during litigation. A proactive approach allows the attorney to get a client’s story out to the public first and might even result in early free discovery if the opposing counsel feels it necessary to reveal information to counter the media coverage.
George Parnham12 explains how well this technique worked for his defense of Andrea Yates:
I got the case one day after Andrea drowned her children. I began to accept interviews. I was aware that a gag order probably was being thought about, so I wanted to do a crash course in educating the public about mental health issues that I studied over within a few hours before my first interview. From Friday through Monday, I was nonstop. Tuesday morning a gag order was in place, but by that time we had leveled the playing field.
Great Plan, Great Outcome
Clearly, winning in the court of public opinion takes more than good litigation strategy. Protecting a client’s reputation demands the continual repetition of a positive message, delivered to a client’s marketing targets in a proactive way. Understanding the importance of a media plan and its execution is important in today’s media hungry society.
Wade D. Moriarty is a personal injury attorney with the Moriarty Law Firm located in the Heights. He is a 1993 graduate of South Texas College of Law. In addition to his law practice,Moriarty is legal consultant for a company called Media Masters, which trains attorneys and businesses on how to deal with the media and generate positive publicity.
1.Yates v. State, 171 S.W.2d 215 (Tex. App.-Houston [1st Dist.] 2005, pet. ref’d) 2. Roland Garcia’s quote was obtained with permission from an interview with Media Masters for their ethics CLE entitled “Controlling Media Publicity for a Client in Crisis” 3. Id. 4. Miranda Sevcik’s quote was obtained with permission from Media Masters’ ethics CLE entitled “Controlling Media Publicity for a Client in Crisis” 5. Mark Lanier’s quote was obtained with permission from an interview with Media Masters for their ethics CLE entitled “Controlling Media Publicity for a Client in Crisis” 6. Tex. Disciplinary R. Prof. Conduct, (1989) reprinted in Tex. Govt. Code Ann., tit. 2, subtitle. G, app. (Vernon Supp. 1995)(State Bar Rules art. X, § 9) 7. American Bar Association Model Rules of Professional Conduct, 2004 Edition 8. Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 9. Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992) 10.Id. 11. Lynne Liberto’s quote was obtained with permission from an interview with Media Masters for their ethics CLE entitled “Controlling Media Publicity for a Client in Crisis” 12. George Parnham’s quote was obtained with permission from an interview with Media Masters for their ethics CLE entitled “Controlling Media Publicity for a Client in Crisis”