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Every case that goes to trial is a big deal to the judge, lawyers, plaintiffs, prosecutors, defendants, and jurors whose lives may be overtaken by court proceedings for several weeks. If it’s also a big deal to the media, it is, by definition, a high-profile case, which raises the question of whether the lawyers should speak to reporters. There are at least two schools of thought on this issue, which might be labeled “traditionalist” and “modernist.” Adherents of the traditionalist school will tell you, based on long-standing custom and decades’ worth of trial experience, that “no comment” is the only appropriate comment. When pressed, the traditionalist may offer as justification: “We’re not going to try this case in the media.” Traditionalists say that since you can’t control reporters, and you certainly should never trust them, talking to them carries no possible advantage and a great deal of risk. The risks traditionalists worry about include incurring the wrath of the judge, accusations of jury tampering, and running afoul of legal ethics. The modernist dismisses the traditionalist view as a hopelessly antiquated relic of the era before CNN, the Internet, Court TV, and the institutionalism of the class action. These days, say modernists, a high-profile trial is likely to be a media event, and the lawyer who relies on a terse “no comment” is abdicating his responsibility to be a vigorous advocate for his client. The modernist view recognizes that high-profile trials are usually preceded by sensational circumstances and events that are widely covered by the news media. This coverage constitutes a kind of pre-trial in the court of public opinion that can have a tremendous impact on the fate of a defendant. The threat to a defendant’s rights posed by such coverage was well-understood long before the days of Court TV and the Internet. For example, in the notorious case against convicted murderer Dr. Sam Sheppard, the Supreme Court overturned his conviction based on what the Court called “virulent and incriminating publicity.” Indeed, the Court noted that “[g]iven the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of jurors, the trial courts must take strong measures to ensure that balance is never weighed against the accused.” But even when a defendant’s individual liberty is not at stake, the widely publicized allegations of plaintiffs attorneys and prosecutors can damage a defendant in other, devastating ways. “The government has a powerful and more questionable weapon at its disposal,” argued former Sen. John Danforth (R-Mo.) in a recent New York Times editorial warning against the danger of excessive prosecutorial zeal: “It can ruin reputations.” ETHICS RULES Looking to the ethics rules for guidance may create more confusion than enlightenment. Rule 3.6 of the American Bar Association’s Model Rules of Professional Conduct contains clauses that both sides can claim as justification for their positions. Traditionalists may point to clause (a), which seems to carry a clear prohibition against making statements to the media: A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding on the matter. Modernists say there is a clear exemption to this apparent prohibition in clause (c): “A lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.” The key phrase here is “publicity not initiated by the lawyer or the lawyer’s client.” Since prosecutors and plaintiffs attorneys are the lawyers who initiate cases, this exemption clearly exists for the benefit of defense attorneys and their clients. It’s not an ethical double standard, but a recognition of the fact that our criminal justice system is designed, first and foremost, to protect the rights of defendants. A Nevada lawyer tested this principle when he held a news conference to protest a criminal indictment against his client on the grounds that his client was innocent. After his client was acquitted, the State Bar of Nevada filed a complaint against the attorney alleging that his public statements violated a Nevada Supreme Court rule against making extrajudicial statements. The case proceeded to the U.S. Supreme Court, which reversed the state court’s ruling. “An attorney’s duties do not begin inside the courtroom door. He or she can not ignore the practical implications of a legal proceeding for the client,” Justice Anthony Kennedy wrote for the majority in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). He added that “[a] defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.” REFUTE INITIATOR’S STORY Legal and ethical considerations aside, there are strong practical reasons for giving an advantage to defendants in an effort to level a very tilted playing field. Jurors, no matter how wise or impartial, respond to the strength of a trial narrative, or story. Simply put, the initiating side gets to tell a better, more compelling story — and gets to tell it first. In criminal and civil cases, initiators portray themselves as the victim’s advocate, and victims who have suffered genuine harm are inherently sympathetic. For initiators, the narrative is a variation on a compelling theme: This victim has suffered, and we will prove how and why the defendant caused, or is responsible for, the harm. There are many ways for the initiator to enhance his trial story because the narrative often touches on familiar themes of good versus evil, victim versus villain, and the powerful versus the righteous. For the defense, the primary objective of the media strategy is to mitigate damage to its client and its case by refuting the allegations. While there may be some common elements, refuting the initiator’s allegations in a high-profile case is different from disproving opposing counsel’s case in court. The defense must tell reporters the story of “why it isn’t so” by selecting their one or two most persuasive arguments. In fact, when speaking to the media, both sides often overlook the critical difference between jurors and reporters and end up talking past the public audience. That’s why attorneys involved in high-profile cases should have a media strategy in place long before the case is filed. While a litigation strategy details how to sway the jury and win the case, a media strategy takes into account the other public audiences who are interested in, and potentially affected by, the outcome of the trial. OUTSIDE THE COURTHOUSE A trial may span several days, during which attorneys can put on a case complete with witnesses, evidence, and exhibits. The jury is a captive audience whose members must listen to all the evidence presented, whether they are persuaded by it or not. But outside the courthouse, reporters control the playing field. They get to ask the questions, ignore most of the answers, and select a very small piece of the response — called a sound bite — to include in their story. Since the reporter’s currency is the sound bite, it’s important for the attorney to be able to speak in messages. The good news is that in a high-profile case, messages can be your saving grace, safe harbor, home base, and guiding light. The bad news is that creating them is hard work that must be done ahead of time — generally at the same time you’re preparing for trial. If you’re walking out of the courthouse trying to come up with messages off the top of your head, the chances of damaging your case are high. To fashion effective messages, you must first assess the facts and strengths of your case. Then you can begin to create a message platform — a set of messages (usually three) that, taken together, provide a clear and compelling summary of your case, positioned in the best possible light. A message platform is a compressed narrative that tells the story of your case. These messages must also address the essential aspects of the case: What is really at the heart of the trial, what is at stake, who gets hurt, and who benefits. Your messages must also demonstrate an understanding of why these larger, public audiences care about the case. To ensure that reporters select your strongest messages, you must anticipate the questions that reporters are most likely to ask. This process of aligning your messages with the sound bites required by the reporter’s story template will help you sidestep the pitfalls and help you capitalize on the media opportunities, even if the best you can do is to mitigate damage already done to your client in the public arena. Dealing with the media at trial is a serious matter, and the relevant considerations are clearly different, depending on which side of the case you are on. Initiators — prosecutors in particular — should pay close attention to the limits contained in the ethics rules, while defense attorneys should be guided by the overriding objective of damage mitigation. Whether you subscribe to the traditionalist or modernist view, the best advice comes not from the canons of law or legal ethics but from the wisdom contained in the Hippocratic oath: First, do no harm. Judy Leon is senior vice president of DecisionQuest, a litigation research and strategic communications firm. She directs the company’s Washington office and may be reached at (202) 408-5141 or [email protected].

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