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special to the national law journal Jon Bruschke, a professor at California State University, Fullerton, is a coauthor of Free Press v. Fair Trials: Examining Pretrial Publicity’s Role in Trial Outcomes. Erin Powers is principal of Powers MediaWorks, a public relations firm that represents attorneys involved in high-profile litigation. Much has been said and written about pretrial publicity, most of it focused on criminal jurisprudence due to the constitutional issues involved. However, the ongoing corporate scandals remind us that highly publicized legal actions are not limited to the criminal realm. What the civil arena needs now is for academic inquiry to catch up to the current legal environment. Pretrial publicity scholarship is a fascinating mix of constitutional principles and high-tech messages. On one hand, the rules laid out in the Constitution have sagely balanced privacy rights and a free press. On the other, today’s media technology could hardly have been imagined by the writers of the Bill of Rights. The disjointedness is an important one, since the basic question courts face in all publicized trials is this: How much news media exposure must occur before most jurors will be unable to make a decision free from its influence? This question is a psychological one, having to do with how human beings process information and media messages, and as such it is entirely appropriate that judges often turn to professional social scientists who have better answers to the difficult questions of how the human mind works. The result has been a burgeoning literature on the subject. But while a workable number of studies have analyzed the influence of publicity in criminal cases, and we have considerable guidance about how personal injury and class action litigation might be processed, the scant research evolving out of recent civil litigation tends to be diminished by its partisan nature and limited scope. There are two points to make at this junction. First, until better information becomes available, we might wonder what the findings of the criminal research might have to say about noncriminal litigation. In general, research shows that pretrial publicity has a very minimal influence on potential jurors. Although under very specific circumstances some jurors might be biased, a careful voir dire procedure, clear instructions from the judge, the natural delay between media coverage and the start of the trial, and the generally low retention rates that viewers have of the news all work together to reduce pretrial publicity as a threat. In a way, this is not at all surprising. One of the most consistent and encouraging findings of the academic research is that, by far, the single most important factor in the outcome of a trial is the evidence presented at trial. Enron as a case study That proved true in Houston last summer in the six-week obstruction trial of Arthur Andersen over the destruction of Enron documents. Jury experts and defense attorneys predicted that Houston-inundated with Enron news coverage-might be incapable of producing a fair jury. Others offered coarse, condescending data about Texas juries. None of it mattered. In fact, the Andersen jurors said they began 10 days of deliberations evenly split on guilt. And no one has ever suggested that this jury, which ultimately convicted Andersen, was guided by anything but careful examination of the evidence and application of the court’s instructions. The good news is that the outcome, while painful for Andersen, was fair. But the encouraging suggestions about pretrial publicity come with a warning- if media messages are not influencing the outcome of trials, it is precisely because of the careful remedies that a court can apply. The findings of the academic research, in an era of increased media penetration into the common consciousness, are thus a cause for continued judicial vigilance. This does not imply that pretrial publicity should not be an important strategic communications consideration for counsel and their clients. Litigants with reputational assets to protect must understand their options. And attorneys would do well to heed U.S. Supreme Court Justice Anthony Kennedy’s observation in Gentile v. State Bar of Nevada that attorneys have not only a right, but perhaps an obligation to advocate for clients in the “court of public opinion.” Nevertheless, we can expect that the coming wave of corporate trials will produce fair proceedings for the defendants. In fact, research persistently indicates that litigant wealth is an important predictor of trial outcomes. Corporations, whose speech also is protected as a First Amendment right, incessantly advocate, promote and mold public opinion and public policy on many issues. Still, a litigant facing the choice between a good lawyer and a clean media slate would be a fool not to take the good lawyer. The second point to make here is the more obvious one: Lawyers, their clients in civil litigation and experts in jury behavior and litigation public relations effectively rely on experience and intuition every day, but we need more academic research on noninjury, non-class action civil litigation. Given the stakes involved, any set of knowledge concerned with media and the law is conspicuously incomplete without adequate facts about certain types of civil litigation. Extrapolations from other areas of research only go so far. An open society founded on free speech needs good law and good research, and the former without the latter may be impossible.

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