"No comments" the normal terminology while facing media by lawyers

<<For the better part of a century, conventional wisdom among attorneys held that you were best off declaring "no comment" when news reporters asked for information about pending litigation. The relationship between lawyers and reporters was guarded at best and sometimes downright adversarial. After all, why would attorneys or their clients risk saying anything in public that could come back to haunt them in the courtroom or jeopardize ongoing legal negotiations?

This admonishment amounted to a blanket muzzle on lawyers and their clients that served the defense well in the days before mass media became a centerpiece of American culture. But in the last 15 to 20 years — as the plaintiffs' bar has effectively demonstrated that jury pools, and even judges in some cases, can be conditioned and influenced by public communications campaigns — this strategy has proven to be a losing one. And not just in the courtroom.

At a time when the millions of dollars at stake in litigation are often dwarfed by the billions in brand credibility and trust that high-profile defendants stand to lose in the court of public opinion, "no comment" is tantamount to uttering "My client is guilty." That's why, with increasing frequency, smart attorneys are working to identify the most effective strategies for evolving from "no comment" to what I call "low comment" — the strategy of strengthening their legal cases while protecting their clients' reputations in the marketplace.

And just what is low comment? It's the art — and it is an art — of providing influential information to the media in such a way that doesn't jeopardize a case. It's deflecting what adversaries are doing publicly to strengthen their position with key audiences. It's evoking sympathy from potential jurors, judges, and the general public. And it's a tested tactic for securing a settlement — which is the underlying, if unspoken, goal of almost every high-profile defendant facing litigation today.

Indeed, the fact that most high-profile cases end in settlement has provided an even greater rationale for lawyers and their clients to open up — for if there is no trial, there is usually less risk. Today, legal battles are fought on the front pages, over the airwaves, and online before, and after, they're in a courtroom. And the outcome of these public engagements often determines who wins and who loses.

For these reasons, every major legal case in America today employs a communications strategy. The news media are no longer enemies to be stonewalled but rather allies to be cultivated. A sound communications strategy is imperative for shaping perceptions and controlling the story — whether it's being told to a jury during summation or a media pool that has gathered on the courthouse steps. And because most lawyers recognize that they possess neither the experience nor the expertise to effectively master the media, they are teaming up with communications professionals who know how to navigate the news cycle and deal with reporters well-versed in piercing even the thickest public relations armor.

The footprint of this newly forged partnership between legal and public relations professionals is evident every time an attorney, a defendant, or a potential defendant is quoted on camera, in print, or — increasingly today — online.

Modern crisis statements made for public consumption are carefully tailored to convey empathy but not culpability — as was the case when Mattel's chief executive, Robert Eckert, employed the following example of legally permissible speech when his company was embroiled in a lead-paint toy recall earlier this year: "Nothing is more important than the safety of our children…Our long record of safety at Mattel is why we're one of the most trusted names with parents…I am confident that the actions we are taking now will maintain that trust."

Today, statements made by media-savvy attorneys show the hallmarks of public relations strategy in their direct, to-the-point, colorful, and quotable nature — as was the case when Johnnie Cochran (one of the first lawyers to truly understand the power of the media to sway a case) uttered perhaps the most famous litigation-related words in history: "If it doesn't fit, you must acquit."

Perhaps the greatest influence that communications professionals wield in the legal process is demonstrated when litigants correct a losing communications strategy. When S&M NuTech's leading pet dental treat, Greenies, came under fire for allegedly creating esophageal blockages in dogs, the first response of the company's founders was to declare to the media, "Our products are perfectly safe." But the problem was that those words could undermine their case when projected on a PowerPoint slide in a courtroom after numerous veterinarians' affidavits to the contrary were entered into evidence.

After the manufacturer's lawyers consulted with crisis communications professionals, that message was altered to "When used properly according to the directions on our packaging, our products are perfectly safe." Ten well-placed words protected S&M NuTech against further liability. And when they empowered disinterested third-party veterinarians to deliver that same message in the media, S&M NuTech effectively defended its brand in the realm of consumer relations.

And, of course, the most credible voices speaking on behalf of clients in the court of public opinion aren't the clients or the attorneys at all. Instead, allied spokespeople who are considered experts are identified, recruited, and deployed to make an effective public case. For Greenies, it was veterinarians who advised how to use the product safely on network morning news programs. For toymakers, it was safety experts and parents blogging online and speaking with news reporters. For clients like the detainees in Guantanamo or the governments of Dubai, it's policy experts at U.S. think tanks and universities authoring newspaper opinion pieces.

In this brave new legal world, the only thing worse than no public relations strategy is one that is driven by a lawyer who is blind to the subtle nuances and techniques of public communication. While lawyers are among the most brilliant professionals working today, most simply don't have the media experience required in crisis situations. And while public relations professionals are pretty smart in their own right, most don't possess the legal knowledge to know where the line between solid communications strategy and increased liability lies.

That's fundamentally why we're increasingly witnessing the application of the complementary skills of attorneys and communications professionals in nearly every major piece of litigation in the public eye.

Today, applying the "low comment" strategy with the news media is the way to win both in the courtroom and in front of the cameras — and it takes lawyers and communications professionals working together to effectively manage it.

About the Author

Gene Grabowski, a senior vice president at Levick Strategic Communications and 2007 winner of PR News's Crisis Manager of the Year Award, is a seasoned communications professional and former journalist who leads high-profile accounts for major law firms, Fortune 500 companies, trade associations, and government agencies.