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When the ''Court of Public Opinion'' Factors into Legal Strategies

published November 19, 2007

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( 7 votes, average: 4.4 out of 5)
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Much has changed in the years since U.S. Supreme Court Justice Anthony Kennedy suggested in Gentile v. State Bar of Nevada that attorneys have not only a right but also perhaps an obligation to publicly advocate for clients. For better or worse, the trend is clear when it comes to the convergence of law and the news media. Extrajudicial speech has been deregulated to some extent. Popular fascination with legal controversies and entertainment and a 24-hour news cycle mean that "no comment" is less often an appropriate option for counsel involved in high-profile litigation or high-risk industries.

Litigants are increasingly realizing that their reputational assets must be protected in legal disputes, even if a case is expected to settle before trial or be won in trial or on appeal. For them, the so-called court of public opinion is as important as developments in courts of law.

Effective litigation communications provide means to:
  • Protect or defend a client's reputation in support of a legal strategy;
  • Ensure fair and balanced news coverage;
  • Help a client reach key audiences;
  • Add value to your legal services; and
  • Validate a client's decision to continue working with you.
For many lawyers, the development of litigation communications capabilities serves not only the client and matter at hand but also the firm in the long term. Judicious cooperation with news media also provides a focused, cost-effective means of reaching current and former clients, professional colleagues, referral sources, and buyers of legal services. These lawyers wisely regard this activity as a competitive necessity.

Of course, predictable and understandable tension exists between many in the news media and legal profession. Despite a mutual professional dependence, these two groups often coexist with competing objectives, deadlines, professional standards, issues of confidentiality and public disclosure, and expectations of their organizations or clients.

Development of litigation communications capabilities should begin with an honest assessment of your firm's communications resources and your clients' existing and likely needs for support. The truth is most litigators, while verbally skilled and quick-witted, can benefit from media training. Objectives of this training often include:
  • Learning whether, when, and how to contact or respond to news media to protect client interests;
  • Developing news interview skills and productive news media relationships;
  • Discussion of professional restrictions on extrajudicial speech; and
  • Preparing for representation of high-profile and at-risk clients.

Many firms have excellent in-house capabilities in this regard. Others do not, and those firms — which typically maintain strong marketing and client relations programs at the expense of media relations and strategic communications activities — often retain outside consultants who specialize in legal affairs matters. These consultants should be experienced in working under the constraints of protective orders and confidentiality agreements. And they should be aware of the debate over extending attorney-client privilege and the work product doctrine to litigation communications advisers.

About the Author

Erin Powers is principal of Powers MediaWorks, LLC. A former newspaper journalist and law firm communications director, he advises law firms throughout the United States and abroad.

Powers MediaWorks, LLC, provides strategic communications services to law firms and businesses in the United States and abroad. The firm specializes in media relations, litigation communications, media training, and government affairs consulting. Based in Houston, the firm has developed and implemented communications strategies for attorneys (plaintiff's and defense) responsible for regional, national, and international legal matters. More information is available at www.powersmediaworks.com.


published November 19, 2007

( 7 votes, average: 4.4 out of 5)
What do you think about this article? Rate it using the stars above and let us know what you think in the comments below.