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.
Playing the Media Card - To learn more about this author, visit Bob Fisher's Website.
Like this article? Share it with your friends
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.
Playing the Media Card - To learn more about this author, visit Bob Fisher's Website.
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