Lawyers involved in high-profile cases have a lot to worry about. The last thing they need is a flurry of phone calls from reporters—or having to deal with media camped outside their client’s headquarters. They don’t have time to follow tweets from some blogger who has decided to make a cause out of their case. Most of all, they don’t need distractions.
But media coverage matters: It can influence the outcome of cases, whether it’s a murder trial or corporate warfare in Delaware Chancery Court. Judges care about their reputations and the public’s perception of the justice system and want to know how their cases are being covered. Jurors—in spite of instructions not to do so—often follow media coverage of cases they hear. Seasoned trial lawyers know this, and they know it won’t change.
Realizing that many lawyers lack the time and inclination to speak to the media—and that in some instances court or bar association rules prevent them from doing so—we offer some advice for weathering the storm of a closely watched case.
Wire services and major dailies—especially wire services—set the tone for all coverage. In today’s shrinking media market, most coverage, including social media, is derivative of the first wave of stories written about a case. If your case resides at a major courthouse, odds are that the Associated Press, Reuters and Bloomberg have reporters stationed there or will parachute them in for the big cases. They are usually the first ones to write about a lawsuit filed or an indictment handed down. Major dailies might also have a reporter on-site and will quickly post stories online, functioning like a wire service.
After decades of dominance by newspapers and then television, wire services again rule the day. Whereas once a daily newspaper reporter could spend a full day crafting her story, she is now required to file an early version immediately for the paper’s website, followed by several updates throughout the day. This is, of course, exactly how wire reporters have always worked. Moreover, an increasing number of news organizations and websites, lacking sufficient staff, simply run wire stories instead of their own.
Draft publicly filed court documents with the press in mind. Whether or not you are willing to speak to reporters—and we can assure you that “no comment” is almost always the wrong thing to say—the documents you file in court serve as the most important vehicle for telling your story to your audiences—the judge, the jury, opposing counsel, legal pundits and the public.
Think of how the reporter works. One afternoon, making her daily checks, a reporter comes across a significant new filing in your case. The reporter knows right away it’s a good story, but she also knows she needs to get something out right away in order to beat her competition. (Nothing—even a correction—feels worse to a reporter than getting scooped.)
So the reporter speed-reads the first few pages of your document, then scans the rest, getting the general gist. She makes one or two phone calls, files a three-paragraph story and sends it to her editor. Within 15 minutes, it is available to the whole world. Whatever impression she has gotten from that initial read and whatever headline her editor has seen fit to slap onto her story will have a powerful role in shaping how the public and other media view your case from this point forward.
Later, after the story has gone out or been posted on her paper’s website—after her “scoop” is secure—she will go back to the document, make more calls, check her facts and delve into greater detail. Other reporters will follow. At some point toward the end of the day, an informal consensus will emerge from the stories. It will be hard to overcome that consensus—that narrative of first impression.
Tell a story. Whenever possible, make sure your complaint, answer memorandum or brief tells a compelling story. Some reporters went to law school, but most did not. So if you want them to understand your case, don’t bog down the initial pages in legalese.
Also, put the important stuff first. If there is a “good fact” or salient detail you want to see in the news coverage, put it as close to the beginning of your document as you can. Don’t underestimate the reporter’s short attention span. No doubt you have heard of the “inverted pyramid” structure of a traditional news story. Consider structuring all or part of your document that way.
Make sure your story has good guys and bad guys. Though reporters deny it, they tend to write stories with a villain–and sometimes a hero. (In part, this is because it’s what their readers and editors want.) Let’s say, for example, your client is a multimillionaire charged with insider trading. The reporter’s natural instinct will be to cast him as the bad guy. Think of convincing and creative ways to challenge that tired construct—do not cede the moral high ground. There are politically motivated prosecutors; there are overzealous plaintiffs attorneys.
Certain things about trials will never change. The media landscape, on the other hand, is changing. The ranks of reporters are shrinking; those who remain have less time to cover cases in depth. Paradoxically, developments in digital media are placing unprecedented pressure on these same people to produce more stories, not to mention tweets, blog postings and whatnot. Meanwhile, the rise of new media has broadened the definition of “journalist.”
The result is a deluge of multiplying content, much of it repeated and repurposed from other sources, and some of it of highly dubious quality. That doesn’t mean that this content has any less impact on high-profile cases. Indeed, in the age of smartphones, it is possible that such content is having more impact.
Eric Herman and Tracy Schmaler are managing directors at ASGK Public Strategies, a public affairs firm with offices in Chicago, Washington, D.C., and New York. They are members of ASGK’s crisis and litigation practice group.