As a young lawyer in a mega-international law firm based in Chicago, I marveled at the various diverse approaches taken towards the media by the firm’s lead trial attorneys. Some lawyers embraced it and considered the media an ally in any ongoing litigation. Others approached the media more cautiously, fearful that the editing process might ultimately render the published word in a different context than intended, and not necessarily in a manner helpful to the client.
The most ironic attitude toward the media which I witnessed came from the firm’s lead trial counsel, Dan Webb. Widely regarded, then and now, as one of the very best trial lawyers in America, he tended to shy away from the media whenever possible. This was a surprising notion to outsiders who did not know him well, since he so often was pursued and quoted by the media on the state and national levels. I once heard him talk about why he preferred to avoid the media. He explained that, when in litigation, clients usually prefer to keep their case quiet and “below the radar.” Some of the best lawyers in the country, he believed, were people you had never heard of because they effectively kept themselves and their clients’ troubles out of the public eye. Now that my own career has matured for more than two decades, I have come to believe these words of wisdom. They have served me well in my own trial practice.
Of course, when one reaches the level of Dan Webb, avoiding the media altogether is virtually impossible. In dealing with this reality, Webb needed two necessary preconditions to exist before discussing a case with the media: (1) It must be absolutely necessary, and (2) It must be in the client’s best interest.
When is it necessary?
The first follow-up question to Webb’s model is obvious: When does issuing a statement to the media become necessary for an attorney? I recall two scenarios under which Webb believed that public statements to the media became necessary. The first occurred when cameras, microphones and journalists unavoidably stood in his path. This event most commonly occurs for lawyers on the courthouse steps, where blatantly avoiding the media can appear cowardly and weak. Even under these circumstances, however, the statement “no comment” can be both appropriate and preferred. In the end, instinct and experience must guide the seasoned attorney to make appropriate comments.
The second scenario in which public statements become necessary usually requires a more detailed response beyond “no comment.” It occurs when adversaries have issued their own statements published through the media that serve to misinform the public to the point it can have a negative influence in the courtroom. Under these circumstances, a statement, interview or press conference to clarify or explain the opposing view can become appropriate or even necessary. Great care must be taken, however, to convey the right statement. A public statement can potentially backfire at any time and become counterproductive by causing a media flurry from the opposition that might otherwise have been avoided.
When is it in the client’s best interest?
Whether a public statement to the media is in the client’s best interest is not always an easy question to answer. Clients who are public figures instinctively want to take their case to a public forum to vindicate their image or persona. Even private individuals often want to issue public statements in hopes that “the truth” will become obvious in the public forum and pressure the other side into a compromise, thus avoiding costly time-consuming litigation. Seldom do any of these strategies actually unfold as planned.
Clients who want to take their stories to the medial typically underestimate the commitment of their adversaries. If two sides to the story did not exist, there would not be a dispute in the first place. One side taking this story to the media usually prompts the other side to do the same. Moreover, we cannot always predict how the media will present the issue. Even the most honorable and forthright journalists, editors and producers are human beings with their own moral, ethical and political views. These are not easily set aside and disregarded, particularly in a controversial setting.
Of course, there are times when it is in the client’s best interest to make a public statement. Sometimes, the case involves a question of grave civic concern, and ongoing distribution of information is vital to keep the public educated and involved. Other times, the client’s name or business may have been unfairly tarnished, and public clarification is warranted. Finally, there are times when a public statement becomes necessary so the client can simply exhale, focus and proceed with clarity of mind and commitment.
How has this changed today?
Our media is very different today than it was 20 years ago. Today we have smartphones, satellites, laptops and the Internet. Facts can be verified in minutes. Statements can be issued in seconds. Positive media coverage can be instantaneous and profoundly effective, but negative publicity can be equally disastrous. Despite the technological changes over the decades, I have found that the lessons I learned 20 years ago still apply today. Before actively involving the media in any litigation matter, I make sure it is both necessary and in the client’s best interest.