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While attending a recent American Bar Association meeting, I happened to mention to a couple whom I know casually that I had begun doing legal work for a large employer. “Oh, they’re bad people,” immediately responded one of my acquaintances. Taken aback, I asked who she knew at this particular company. It turned out she did not know anyone there. Instead, her perceptions of the company’s corporate ethics had been formed entirely by recent reports in the media. Her views � which, by the way, are completely out of step with my own direct experiences with this company � have since been echoed by other friends of mine. All of this makes me wonder how difficult it might be to get impartial jurors on cases involving this client that are headed toward trial. Those of us who do employment defense work often recognize that we have a steep uphill road to climb in jury trials. For one thing, juries tend to be full of employees rather than employers. In complex trials that typically last longer than a couple of weeks, it is common for even low-level managers to scurry off jury panels, leaving a pool of students, retired workers, blue-collar employees or other union-represented employees as prospective jurors. Many of us are also cynical about the workplace practices of large companies, sometimes as a result of our own bad experiences or those of family and friends. But the “bad people” conversation I had at that ABA meeting was with other lawyers who themselves do employment defense work. I simply did not expect such an emphatic knee-jerk response from those who tend to understand that what is reported about allegedly widespread discrimination, retaliation or statutory violations in large corporations is often just flat-out wrong. (This particular client, by the way, put me and my firm through more scrutiny in the hiring process � questioning us about opportunities for associates, fairness in partner compensation decisions, firm ethics and environmental responsibility � than I have ever experienced with any other potential client.) As the media continues to mold the public’s views and attitudes, I increasingly urge clients away from the no-comment approach that begins and ends with statements like “we never talk to the press about pending legal matters.” Several years ago I heard Greta Van Susteren, a former trial lawyer who became a popular TV legal analyst, speak to a room full of lawyers about approaches to dealing with a reporter who is writing what may be a bad story about a client. It seems that reporters often want to talk to lawyers more than anybody else (other than, say, eyewitnesses to a murder or to the latest indiscretion on Capitol Hill) because they recognize that lawyers often know the facts behind the story. Van Susteren suggested that one way to ensure that a media report is balanced even while sticking to a “no comment” strategy is to urge the reporter � off the record � to review a document or speak to a third party before going public with a story. It’s a technique that can work well, particularly if a company has a need or desire to stay faithful to its official “no comment” practice. There are circumstances, meanwhile, that call for something more than a terse “no comment.” This view has been reinforced by observing the work of lawyers in my firm’s Legal Crisis Communication practice as they have helped to ensure balanced reporting of alleged financial scandals, legislative investigations and other unfortunate client-related events. As competitors, plaintiffs’ lawyers and hostile investors generate media and perhaps even government scrutiny, companies need to ensure that media coverage, which molds the views of investors, employees, recruits and the public, includes their side of the story. Concerns about confidentiality and a desire to avoid the spotlight need to be weighed against the fact that adverse parties who know how to use the media can shape public views by disseminating misinformation or by virtue of being the sole voice speaking to the public. We are all familiar with prominent plaintiff lawyers, for example, who typically launch their latest employment lawsuits with a flurry of press conferences and media interviews, complete with inflammatory allegations about the hideous mistreatment of their clients at the hands of senior company executives who are quick to flout their legal obligations. In this highly charged environment, a “no comment” approach rarely serves a company’s best interests, regardless of the defense verdict that may come down the pike a year or so later. One step that can assist in-house counsel in fending off an unbalanced media report is to build a relationship of trust with one or more reporters who cover these kinds of stories. If a high-profile legal-related event should occur (these days, it’s more likely when such an event occurs), the trust established in advance will produce dividends. As my Legal Crisis Communications colleagues say, what you want most is for a reporter to trust what you say and then report what you say to the public. The odds of that happening improve dramatically if you have already established a solid relationship with that reporter. Journalists benefit from these relationships because they get what they want most � a knowledgeable, trustworthy source. In addition, reporters may at times pass along useful information that they’ve gleaned from other sources. For example, they might have valuable information about investigations, competitors or even about what other journalists may be writing about your client. Consider having coffee or lunch from time to time with reporters who cover your company and industry. If you have in-house communications advisers, they can help you identify the right reporters with whom these working relationships might be formed. A word of caution is in order here. The kinds of conversations with journalists I’ve described above should definitely be off the record � meaning that, unless you have expressly said otherwise, a reporter may not use anything that you say when writing a story. Of course, as my colleagues also stress, until you develop a very trusted relationship with a reporter, you should also be reluctant to rely on an off-the-record agreement when it comes to preventing the reporter from using your statements. Instead, think about following what is known as the “ Wall Street Journal rule.” That’s the one that says don’t say anything to a reporter whom you don’t know unless you’re prepared to see whatever you do say on the front page of the Wall Street Journal.) At the very minimum, train other lawyers on your team about how best to respond when a reporter calls. That response should include asking the reporter about the theme of the story and what kind of input is being requested from you. At that point you can call your own internally designated spokesperson and decide on a strategy for responding. This approach gives you time to come up with a thoughtful response � which, ideally, will also turn out to be an excellent sound bite for the story. Lynne C. Hermle is an employment partner in the Silicon Valley office of Orrick, Herrington & Sutcliffe. Adam Goldberg and Lanny Davis, partners in Orrick’s office in Washington, D.C., assisted in the preparation of this column.

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