Trial Magazine

Americans’ views on civil justice are rapidly changing in conjunction with how we consume news and information. Gone are the days when people almost solely obtain their news via morning newspapers and nightly news programs. Today, people have more media choices than ever, filtered to their personal preferences. And the advent of social media has added another layer of complexity to this environment. All of this has occurred with the decline of local news and the rise of specialized media—including news outlets focused on covering the courts and legal developments.

What is clear is that news coverage of your case can play an outsize role in its outcome. Undoubtedly, lawyers, judges, and other parties are sensitive to news coverage of litigation they are directly involved in because it frames the issues at hand, informs perceptions of the parties in the wider public, and impacts the views of potential jurors. It’s essential to follow best practices and have a strategy in place to interact with the media.

Litigation communications differs from other types of public relations in several key ways. Lawyers who speak to the media about ongoing litigation must consider the views of the myriad parties involved in the lawsuit. They must balance their desire to convey the strongest message with respect for the judge overseeing the case, the concerns of clients and potential jurors, and the need to maintain a working relationship with opposing counsel. And lawyers have the additional responsibility to comply with ethics rules in their jurisdiction and any court orders related to the media or confidentiality issues in a case.

Engaging with the media on litigation also happens in an adversarial setting, with plaintiffs and defendants offering competing narratives and perspectives. Media thrives on this tension, but it needs to be harnessed in a way that promotes your message. Getting a message across is challenging enough without having to navigate confusing legal jargon and arcane court procedures. While one size does not fit all, here are 10 tips for formulating your case-specific media strategy.

Any time you communicate with the media, ask yourself: What do I want to accomplish?

1. Don’t communicate without a plan.

Any time you communicate with the media, ask yourself: What do I want to accomplish? If you cannot answer this question, then engagement is not the best strategy. Every media interaction is different and is driven by whether you are on offense or defense, the reporter’s understanding of the state-of-play, whether it is print or broadcast, and a variety of other factors. By outlining your goals first, you can draft the right message and determine who the best messenger is (whether it is you, your client, or a third party).

2. Do no harm.

When planning a litigation communications strategy, follow this cardinal rule. The adage “all publicity is good publicity” could not be further from the truth in the context of litigation—no potential reward from increased exposure is worth directly hurting your client’s chances of prevailing in court. Your litigation strategy should lead the communications strategy, not vice versa. Being quoted in a news article or appearing on television is an enticing proposition for many attorneys. But in any attempt to obtain coverage, focus on the ultimate goal: a jury verdict in favor of your client or reaching a successful settlement.

For example, in abuse cases involving high-profile defendants, plaintiffs often are not believed when they first file suit. Only after more plaintiffs come forward does the public begin to understand and appreciate the depth of abuse and that the defendant may in fact be responsible. As news organizations are typically willing to protect the identities of plaintiffs in these circumstances, bringing their stories to the fore can help your litigation strategy—both by providing comfort to other survivors so that they feel safe to confront their abuser and by putting the defendant on notice that their misconduct is now being exposed.

However, in many scenarios, media coverage will not provide you any litigation benefit. For example, some judges frown on seeing their cases in the media, and that displeasure could have blowback on your courtroom advocacy. Additionally, a case that is in good-faith mediation may not benefit from activity outside that space. And any media engagement should, of course, not run counter to any confidentiality provisions or involve the use of protected information.

3. Pause before engaging.

Before speaking with a journalist, it is essential to be deliberate, so take a pause before engaging. Spend time brainstorming who your target audience is (and the audience of the outlet you are engaging with); what message you want them to hear; who should deliver that message (you or your client); and how you can approach the interview strategically.

In short, you must first answer: What is the goal of this interview? If you cannot answer that question, then there may be good reason to pass on the opportunity (or provide background information only). There is nothing wrong with taking a message from the reporter and promising to call them back after you have taken the time to assess your approach.

4. Consider terms of engagement.

Whenever you speak to a reporter, by default you are “on the record” and anything you say can be published and attributed to you. This is true even if the reporter is someone you correspond with regularly. Sometimes it is appropriate to be on the record, but in other situations you may request for a conversation to be “on background,” meaning your statements cannot be attributed to you directly. “Off the record,” which should be used sparingly, means nothing you say can be used publicly. While journalists are interested in the truth, they also want the most interesting story, so have your strategy ready and their expectations set. And you must receive agreement from the reporter to change the ground rules, not unilaterally set them and hope the reporter complies.

5. Never say ‘no comment.’

The scenarios in which you should respond to a media request with “no comment” are exceedingly rare. A recent poll found that 59% of respondents felt that it is somewhat or strongly suspicious for a company accused of wrongdoing to say “no comment”—underscoring how such a response can be negatively perceived.¹ Stating “no comment” may suggest you have something to hide. There is always something you can say, even if it’s a generic “we are confident in our case” or “we plan to hold X accountable.” These may not directly address the question a reporter is asking, but it is important to stick to whatever message is most appropriate for the circumstances.

6. Use public filings to tell your story.

In court, you present exhibits as evidence to back up your claims, elicit witness testimony to tell your client’s story, and tie your arguments back to broader themes of justice and accountability. You should take a similar approach to litigation communications. Public filings that a reporter can quote from are one of the best weapons in your arsenal for supporting your narrative with evidence. For example, provide a court order in your favor to reporters, and instead of you claiming victory, the news report can quote the judge stating how and why you won a certain motion.

Other filings may also contain information you obtained during discovery and depositions that are now becoming public for the first time. If you have said it to the court, it should be fair game to share with the reporter. And by sharing the filing with the reporter, that does not mean you also need to provide additional commentary—the court record may speak powerfully for itself.

7. Deadlines matter.

While you never want to rush into a call with a journalist, don’t wait too long to respond either, particularly if a deadline is not provided. Reporters are always on deadline and often need to write multiple stories per day. If they don’t hear from you within a couple of hours, they may move on to something or someone else, or even worse, publish their story without your perspective. Returning their call quickly is also a smart way to build your credibility as a trustworthy and reliable source. If the reporter does not provide a deadline, ask and then respond on a time line that makes sense for both you and the reporter.

8. Effective messages are short and personal.

Litigation can be incredibly complex, and it’s easy to get lost in the minutia when discussing matters that you are intimately involved in. But keep your message short and to the point. Focus on answering the key questions: who acted wrongly, what was their misconduct, and what damage was done to your client.

9. Practice makes perfect.

Developing a strong message requires preparation and practice. Create a set of talking points to ensure that you’re able to remember and convey the message you want. Then, go over those points repeatedly before any interview. Know your message and how to pivot back to it if a reporter tries to get you off track.

For example, a common reporter tool is raising a hypothetical, such as, “But what if X happened?” This illustrates the importance of staying on message. Engaging in hypotheticals will never help you carry your message and accomplish the goal of your interview. Instead, you could respond with, “The truth is that X occurred, and that is why we are seeking to hold Y accountable.” Both “what occurred” and “holding Y accountable” should be your first two basic talking points in practically any interview.

Remember that discipline and repetition are paramount. Always remain consistent with your message. When asked questions that distract from your main point, transition back to the key messages you prepared in advance. Repeating your message helps drive it home and increases the likelihood that your quote focuses on the details you care about most.

10. Credibility is key.

When speaking with a journalist, be honest about what you do and do not know. Doing so builds trust and maintains your relationship with the reporter over the long term. There is nothing wrong with saying, “I don’t know,” with a promise to circle back once you find out the information they are looking for.

When you enter the courtroom, you are prepared for the expected and the unexpected. The same applies with media engagement. By adopting some of these best practices, you can successfully navigate the increasingly complex media landscape and take control of the narrative in your client’s case.

Ray DeLorenzi is the founder and CEO of RebuttalPR in Washington, D.C., and can be reached at ray@rebuttalpr.com.

Note

1. RebuttalPR, RebuttalPR Insights: Americans’ Views on the Civil Justice System, https://www.rebuttalpr.com/poll.