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Playing the Media Card

Written by: Bob Fisher

Article Overview: In the course of any litigation, often what happens in the "Court of Public Opinion" is more of a determining factor in the ultimate outcome of the dispute than what takes place in the courtoom. What is seen, heard or read in the media can create an atmosphere and public perception that could influence a jury and it can also expose or put pressure on a defendant to force him to settle the dispute to avoid the glare of public exposure.

Playing the Media Card

PLAYING THE “MEDIA CARD”

An Invaluable Weapon Often Critical to Litigation Success

By Robert J. Fisher

It is six weeks until the five year anniversary of the filing of a $14 million construction

defect lawsuit and the plaintiff’s law firm has run out of legal options. The presiding judge

of a Los Angeles Superior Court branch has put out the word that he will let the suit “die”

because he didn’t have a courtroom large enough and wasn’t going to tie up a judge for six

months. The firm’s clients had spent hundreds of thousands of dollars to this point in the

pretrial litigation process. Worse yet, the city had already served the firm’s clients

(homeowners) notice to move out of their residences unless they had been repaired.

In total desperation, the law firm turns to a public relations firm and asks if there is

anything that can be done through communications. While many actions could be taken,

because of time constraints (e.g. five year statute), the most viable strategy was to play the

“media card.” In the next two weeks, numerous front page newspaper articles and radio

and television interviews were generated decrying the fact the justice system was denying

the homeowners the inalienable right to have their “day in court.” The target: the presiding

judge.

The result: three weeks before the “drop-dead” date, the judge scheduled the trial in an

Elk’s Hall with a “rent-a-judge.” Six months later, a jury awarded the plaintiff’s $10.8

million dollars, a California state record for construction defect cases.

While this might sound like an unusual situation, it is an excellent example of not so

much “the power of the press” - but instead, the undeniable and inextricable relationship

between the court of law and the “court of public opinion.”

While utilizing the mass media as a means to educate, inform, persuade and motivate the

court of public opinion is by far not the only “arrow” in the “quiver” of communications

options that can be used to impact the litigation process, it is a most potent - and often

“deadly” - one.

Unfortunately, many trial lawyers are myopic or subscribe to the “ostrich approach”

believing that the only thing that really matters in litigation is what transpires in pre-trial

discovery, depositions or in the courtroom. It is far past time for them to awaken to the

interrelationship between law and communications.

In both the court of law and the court of public opinion - particularly when juries are

involved - there is one constant: perception is more important than reality. Prime example:

check with the O.J. Simpson jurors regarding the “reality” of scientific DNA findings and

the “perception” that all evidence was tainted and the police don’t give equal treatment to

minorities.

Another reality is this: perception is more affected by communications than by laws or

law books. Therefore, it is critical in this day and age of advanced technology,

sophisticated communications systems and instant information that litigation planning

encompasses a communications strategy as well as a legal one. For in truth - as the law

firm recognized in the defect lawsuit - in litigation, the “battle” may occur inside the

courtroom but the “war” may be won or lost outside of court.

Use of the media to “spin” one’s case is most often identified with the trial portion of the

litigation process. Very few juries are sequestered, so therefore trying one’s case

simultaneously in the press enables attorneys to influence the public - and, by extension,

the environment surrounding jurors.

The importance of this tactic cannot be minimalized. Several years ago, the federal

government was involved in a very high profile, national trial in Los Angeles against a

controversial but internationally-renowned businessman. The government did such an

effective job of castigating the defendant in the press before the trial and putting its “spin”

during its early stages that the case was almost lost before it started. “Fighting fire with

fire,” the defendant’s attorney began holding his own daily courtstep news conference. In

a major surprise, the defendant was acquitted and his attorney cited playing the “media

card” as a major reason.

As a trial is the end of the litigation process, it offers the last of an infinite number

of opportunities to use communications techniques (including the media) to achieve client

litigation objectives outside the courtroom. Effective communications can save clients

enormous amounts of time, money and emotional distress. Following are a few examples:

* Avoiding litigation through public pressure - Often, law firms can achieve their

client’s needs without going to court by exposing injustices. Example: A developer in San

Francisco wants to construct a shelter for senior citizens but is unable to get a zoning

variance from the city. The law firm arranged for significant media exposure on the lack of

senior citizen housing. As a result, the zoning board relented and granted a variance.

* Using media while protecting clients - Parents of the slain school children in

Paducah, KY were besieged by the media prior to a pretrial hearing. The attorney wanted

to get their message out but wanted to avoid conflicting views, harassment, etc. if parents

were interviewed individually. A news conference was held which ensured a “unified

voice” and spare them from long, arduous, repeated questioning.

* Public exposure for lawsuit - Probably the occasion when attorneys most often seek

media exposure is to announce the filing of a lawsuit or criminal charges. The most utilized

format is a news conference. Sometimes news conferences are used far into the litigation

process just to create awareness that a lawsuit exists. Example: In 1981 in Washington,

D.C., a news conference was held to make the public aware that a lawsuit brought by the

U.S. Hostages in Iran against the U.S. and Iran was on appeal to the U.S. Supreme Court.

It previously had almost no public visibility.

* Using media to break through “stonewalling” - When the other party refuses to

cooperate, often a little “public attention” is the remedy. Example: In a divorce case, the

female spouse living in Fresno would not respond to requests from attorneys of the male

spouse, who lived in Los Angeles, to meet to discuss the financial settlement. The Fresno

media was used to elicit exposure for a fact that was embarrassing to her. Within one day

of the exposure, she was in Los Angeles for a meeting.

* Using the media to avoid trial - To emphasize the importance of the court of public

opinion vs. the court of law, many defendants in a civil lawsuit don’t fear the loss of

money as much as their image or reputation (e.g. President Clinton). In criminal trials,

defendants can win in the legal court while losing in the public court (e.g. Simpson). The

fear of lost image can be a powerful incentive to settle. Example: A major toy company

can afford to lose millions in court, but it can’t afford to lose it’s business altogether

because consumers view their toys as unsafe for children. Therefore, they may have much

more fear of a reporter than a lawyer.

The “bottom line”: There is a very distinctive symbiotic relationship between the court

of law and the court of public opinion. For law firms to deny it - or not to recognize it - is

counterproductive to their clients’ best interests. Effective use of the media and a myriad of

other communications actions must be evaluated from the time the ink dries on the client

agreement. If not, the legal “battle” could be lost - before it even starts.

# # #

Robert J. Fisher is president of Fisher & Associates, Inc., a Los Angeles (Woodland Hills) public relations firm which was one of the nation’s pioneers in developing communications programs for the legal profession.

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