"Newsroom vs. Courtroom in Court of Public Opinion"

Michigan Lawyers Weekly

We are all familiar with famous courtroom scenes from classic films and television shows-'And Justice for All,' 'Perry Mason' and 'L.A. Law' spring immediately to mind-where a particular attorney wins over a judge, jury and the entire courtroom with brilliant oratories and arguments as to the innocence of their client. But, how often is a counselor shown adeptly handling a television crew or newspaper reporter hungry for a story and comment from the client.

Most often, the media portrays this relationship on screen by showing the attorney rushing a client out of a courtroom, down the courthouse steps and into a waiting car while repeating the phrase, "No Comment" over and over again. In today's 'information hungry' society, 'no comments' and avoidance simply do not cut it.

Most attorneys are capable communicators. They are well trained to be articulate in the courtroom and, or within the tenets of the legal system. When it comes to effectively dealing with the news media, however, many lawyers find they are ill-equipped and unprepared. In this venue, the rules of the legal protocol in which they were schooled and trained no longer apply.

What's at stake? At times, everything. Negative publicity can severely impact a client's business and reputation, sometimes irreversibly, which can then effect your reputation and in turn, your practice. Indeed, the power of the press should never be underestimated.

The reality is this: The law and the media couldn't be more different. In court, there are guidelines set forth by the legal system that work toward ensuring everyone's basic right to a fair trial. There's discovery, submission of evidence, oral arguments on both sides, opportunities to voice objections and request recesses or have information stricken from the record. And, to make sure things remain impartial, there is a judge and a jury.

In the world of mass media, the rules, if any, are often vague and fluid and dependent on a particular situation. There is typically no warning nor time to plan an argument or rebuttal. Any opportunity to request a 'correction' comes only after a story has appeared and damage has been inflicted. And, as for a judge and jury, they are the thousands, or even millions, of lay people who will either watch or read a story about your client that you did not plan nor prepare. Fair and impartial? Not necessarily.

And, the trend is not encouraging. As competition among the growing number of media outlets intensifies, so too are these outlets increasingly looking for 'scoops' and scandals to cover-each merely a cell phone call or hidden camera away.

So what do you do? How do you protect your client and the integrity of your case while also dealing with an aggressive reporter? Should you even bother?

When dealing with the media, it should first be understood that nothing can ever guarantee an entirely positive story. The ultimate goal, however, is to do whatever you can to 'manage the messages' that the story will convey to the best of your abilities. As for whether to bother, the answer is, 'yes,' absolutely. After all, if you know a story is going to run, wouldn't you rather have at least some input into its content, rather than none at all?

Keys to Managing the Messages

The first keys to effective media relations is anticipation and preparation. The moment you take on a case, in particular one featuring a well-known personality or potentially scandalous issue, be prepared for the possibility the press will be interested. Prepare a script with key messages and stick to it. In most cases, it will not be appropriate for your client to do any talking; it will be left up to you, often in the form of written statements.

Another extremely important element is accessibility-taking or returning reporter calls. If you don't take these calls, you won't know what you're up against and will not have an opportunity to tell your client's side of the story; at least what you can talk about outside the courtroom. Instead, the dreaded phrase, "could not be reached for comment" will be used; a phrase that implies avoidance and guilt for most.

From ongoing accessibility comes mutual respect. Understand that a reporter, no matter how pushy or nosey you may feel they are, is merely doing his or her job, just like you. Taking their call and at least engaging in a dialogue (whether you can actually say anything), demonstrates that, at the very least, you respect their role and the task at hand.

And, to help build this mutual respect, always tell the truth. Again, even in cases where you really can't say anything substantive, never go down the path of stating 'half- or un-truths' to the media. It will only come back to haunt you, damaging your credibility.

Bottom line, you want to do what you can to build relationships within the media; relationships based on trust, understanding and, again, respect. Think of this in courtroom terms. Wouldn't you rather appear before a judge you know and respect (and vice versa), rather than one with whom you have an adversarial relationship?

Dynamics of 'No Comment '

It is understandable that many attorneys, when faced with a media inquiry regarding a client crisis and/or court case, lean towards using two of the most familiar media avoidance words ever uttered: 'No Comment.' At face value, the phrase seems safe and nebulous, especially from a legal standpoint. Nonetheless, I would beg to differ.

As with the 'could not be reached for comment' line referenced previously, 'no comment' can actually speak 'loudly' in a negative sense, based on perceptions of the general public and the tone of a particular story or context in which it was used. I would argue that you can and should always say something that would not endanger the outcome of a trial.

Two recent examples illustrate my point:

Last year in the Detroit area, two high profile incidents occurred where alleged shoplifters lost their lives while scuffling with retail chain security guards. In the first case, lawyers for the out-of-town-based retailer, faced with the possibility of a lawsuit from the deceased's family, chose to say and do nothing publicly. As such, the company was repeatedly portrayed in the media as being 'unavailable for comment.' Their seeming lack of emotion or action enraged the community, inspiring mass picketing and a dreaded Mike Wallace '60 Minutes' segment.

In reality, the management of this retailer may have been deeply saddened by the death and resolved to investigate and gain answers as to why it had occurred. By saying nothing, however, the perception that they did not care became the reality, as far as the general public was concerned.

Not more than a few weeks later, a similar tragedy took place across town at another retailer. This time, by contrast, the president of the company was immediately visible at the scene of the incident, ensuring cooperation at the highest level with law enforcement officials. A written statement from the president expressed 'sympathy' for the family members of the individual and a vow to cooperate fully with the on-going investigation. The statement and video of the president provided human concern and community linkage in all the news reports. Follow-up editorials praised the company and president for its handling of the crisis situation.

These two cases are textbook examples where key messages were and were not managed effectively. Which would you rather have bequeathed to your client: 10,000 angry picketers with the crew of '60 Minutes' filming, or reporting that your client actually cared about the value of human life.

Crisis Communications-Additional Considerations

There are a range of other considerations that would take me several additional articles to cover, including when it's best to go on camera and when a statement is more appropriate (and whether the one 'talking' should be you or your client). For the purposes of brevity, I refer back to the our ultimate goal of 'managing messages.' Obviously, the content of a written statement is infinitely more conducive to being managed than an on-camera appearance. That said, nothing can express sympathy and concern more than an actual 'live' spokesperson (if that, indeed, is called for and needed in a particular case).

And beyond media, with every crisis situation you might encounter, there are also often additional audiences that need to be considered and communicated to. In the case of a corporate takeover or bankruptcy, a comprehensive communications plan would be necessary to address the needs of both internal and external stakeholders.

As every situation is different and many are fraught with a range of possible dangers and considerations, it often makes sense to bring in a public relations expert with experience in media relations as a consultant; just as you might look to another attorney or industry expert for their expertise. Such counsel and experience can often prove invaluable, considering what could be at stake.

The next time you're watching 'The Practice,' be aware of how the attorneys are shown communicating, both in court and with the media. And, when you see the typical media circus scene portrayed with attorney and client fleeing a sea of camera flashes and outreached microphones, say to yourself, "There is a method to managing such madness."