Managing the Media

Re-posting this one because I see a lot of high profile and high stakes litigation out there…

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Talking to the media during litigation is a delicate balancing act that requires foresight and preparation.

Although defense counsel usually hopes to avoid this kind of scrutiny during trial, the media can provide a terrific platform for protecting the client, reassuring shareholders and defending against attacks by opposing counsel or consumer groups.

The proliferation of 24/7 news cycles, such as the Internet and round the clock cable news programs, have converted a dearth of previously uncovered stories into major news headlines. Complex corporate and litigation issues receive increasingly unprecedented media attention as editors try to satisfy the never ending news appetites of savvy consumers.

Popular television legal drama, large damage awards and recent high profile cases lend fuel to the exploding consumer interest in litigation. Add to it competition among news wire services to “break” a story and potential jurors can often learn about product recalls, trial outcomes and high damage awards almost as fast as the corporations themselves. In other words, the media play a key role in shaping the public’s perception about a company, an industry or pending litigation.

When developing litigation strategies, counsel should give as much attention to influencing the jury pool before voir dire as after the jury is impaneled. Proper use of the media during litigation can help influence the jury pool to embrace a particular set of facts, manage perceptions about the corporation generally and, in some cases force settlement. This article provides practical insight and methods for defense counsel to manage the media in the context of litigation.

Plaintiffs’ media tactics

• Plaintiffs use the media to generate sympathy for their cause or move a company into disfavor with the public or potential jury pool. These tactics can be employed by the plaintiffs themselves or plaintiffs’ counsel.
• When a defendant, or possible defendant, refuses to comment on a problem with a product or a recent case filing, potential jurors hear avoidance.
• Jurors interpret silence as admissions of guilt or wrongdoing. Jurors believe that if someone were accused of doing something they didn’t do, that person would not sit idly by and say nothing.
• When a corporation fails to respond to media inquiries or responds with “no comment” the consequences, while seemingly subtle, can have far-reaching implications. Jurors can easily form opinions before hearing any evidence.
• Bad publicity can be a successful attack against a company’s hard-earned reputation, community standing and financial bottom line.
• Plaintiffs’ media can have far reaching effects on consumer confidence, corporate image and long-term growth strategies

Protection strategies

There are several things corporations and their counsel can do to protect the brand and reputation of a company, as well as influence consumers and potential jurors about a particular case.

• First, know what is being said in the media. Basic research strategies can accomplish this
• Second, acknowledge that a first impression is a lasting impression. Any allegations that initially go undefended or, sometimes worse, are poorly defended in the media, will make a lasting impression and cause a distraction.
• Third, establish messages primarily to protect the overall corporate reputation as well as to address matters specific to any particular litigation.

Every media opportunity is a chance to convey a message, so don’t let opposing counsel drive the coverage.

What to say

Historically, counsel often took the position that absolutely nothing should be communicated publicly about a lawsuit. “No comment” was the standard response.

When lawyers prepare to defend a case in the media, there should be no surprises. A reporter will always seek comment from the defense and these opportunities should be exploited.

An effective response to address opposing counsel’s attacks directly would employ the following strategy:

• Coordinate communication strategies with the client’s corporate communications office to maintain message consistency
• Identify and maintain a positive position
• Deny untrue allegations or correct factual discrepancies
• Assure consumers of the company’s relevant policy changes

In doing this, counsel should develop no more than four main talking points that will become the key messages to convey and they should rehearse the delivery.

Be prepared to convey the messages in hard-hitting responses and speak in sound bites that can easily translate into print as well as television/Internet coverage.

Just the facts

Another step in the strategic defense of a case in the media is countering the opposing side’s spin on the issue with the facts.

If the defendant has been sued before and was victorious, that fact should be mentioned. For example, “We have tried these issues in front of a jury before and have won. We believe this case is equally baseless.” This kind of comment puts potential jurors on notice that other jurors found the same claims to be without merit while at the same time planting the seed in jurors’ minds that they somehow would be remiss in a converse finding. Psychologically, it is often difficult for jurors to go against conventional wisdom and find something different from their peers. In high profile cases against big corporations, most juries want to be perceived as doing the right thing and refrain from being perceived as contradicting the public sentiment.

Do your homework

• Counsel should know a lot about both the case at hand and the company in general.
• When media question counsel about litigation, they are searching for information on the company’s general business practices as well.
• Negative press causes an entire corporation to come under scrutiny. Persistent negative press can neutralize years worth of work on public image and set a corporation back in its branding and its quest for a positive reputation with a coveted consumer.
• Counsel should not stop defending the client, but rather should extend the range of counsel to go further, with an affirmative stance on the corporation’s business practices.

Big Payoff

• Solid upfront work with the media can have dramatic effects on a case.
• Advanced communication strategies include the development of sophisticated, “win-lose-draw” strategies to help position a company positively to its audiences.
• The public is eager for information and that information influences people, however subtly. Counsel can no longer bank on the ignorance of the jury.

Nothing travels faster than bad news, and defendants in a courtroom are also defending themselves in public. Employing these strategies can help ward off the one-sided, negative messaging that occurs without the active involvement of the other side.

The joke called ED TX

Exposing the rocket docket of ED TX, needs to happen more often. It is ridiculous that most of the companies forced to defend themselves here have no connection to the state (nor generally do the plaintiffs). Shame on the judges who refuse to transfer the cases that should be transferred.

Jurors and Complex Litigation

On a daily basis lay jurors are faced with the task of deciding a winner and a loser in a complex case. Complex and highly technical information is the bane of a juror’s existence, however, true to their duty, jurors muddle through. Sometimes the result is a fair outcome, other times jurors are unaware of either which party won the case or the ramifications of their decisions. When verdicts appear contrary to case facts, it sends shockwaves through the legal community, surprising everyone, including the seasoned litigator who delivered an ostensibly airtight case with unshakable witnesses who had enough Ivy League credibility to pull it off. Although there is an ongoing debate about the merits of replacing lay jurors with quasi experts, there are many elements counsel can infuse into complex cases to make them juror friendly, comprehensible and more meaningful. Absent these elements, jurors have neither the tools nor the inclination to proceed diligently through to a fair verdict. (Note: this is not to say jurors do not try hard and come up with fair verdicts. I believe more often than not, jurors do the right thing.)

Firstly, jurors do not know the law. Counsel too often spends an entire case bouncing legal theories and statutes off of jurors, only to wonder why, in the end, jurors didn’t get it. It matters not how apparently bulletproof counsel’s legal theories are, nor is it important the quantity of law counsel can give to jurors to support the case. The law is not necessarily what jurors are interested in and empirical research shows it is often not what drives their decision-making. Jurors are curious and want to do the right thing.  Sometimes they feel overwhelmed and confused and rightly so.  Jurors are forced to become comfortable with complex legal issues in a very short amount of time. This is not to say counsel should avoid the law altogether, obviously, but certainly avoid making it the main themes in the case. Attorneys’ thinking centers on the applicable law but jurors’ centers on emotions and facts. If counsel focused on creating a narrative story instead of mini arguments around statutes, jurors would follow more closely. Jurors like a beginning and an end and details in the middle to fill in the gaps.  Jurors are linear thinkers (like most people) and, consequently, in a complex patent case for example, jurors want to know the origins of the invention as well as the process and the application.  Remember, jurors come in cold to listen to a case on a subject matter most of them know absolutely nothing about and have no training or education to help them. For counsel to begin telling the story in the middle, with the alleged infringement, creates confusion for jurors.  A narrative story alleviates that problem while, at the same time, empowers jurors to confidently navigate the facts in the case.

Jurors are also not experts. Depending on the venue, a likely make-up of any panel includes jurors with some college classes, a few college degrees, and certainly classes that have little to do with, say, fiber-optic technology. Sitting through complex litigation is akin going back to class for jurors. As an example, patent cases can force jurors to sit through hours of testimony about the mechanics of lasers or the chemical make-up of plastic wrap. Some cases can include days of testimony on RICO while antitrust cases attempt to teach jurors about monopolies or free market pricing. Research shows that jurors try hard to wrap their arms around highly technical information, but sometimes aren’t successful.

When jurors are uncomfortable with the technical aspects of a case, which is often in complex litigation, they shift their focus to other, less complicated parts of the conflict. Some of these include the people, who are the lawyers and the parties, to a certain extent, the motives of the players and people involved, how moral or ethical everyone’s actions were and the degree to which someone was hurt for someone else’s gain. The Enron case is a good example. Most fraud cases receive little attention from the media, however, Enron enraged people because “regular” people (people with little perceived power) were hurt (on a massive scale) while someone else gained; the gain was motivated by greed and, behind the public personas, many Enron executives had skeletons in their closets. By putting a face to those who lost their retirement savings, jurors were able to put themselves in their positions. Focusing on the human aspects of a case will enable them to use their own shorthand in categorizing the facts and evidence and rendering what they perceive to be a fair verdict.

Complex cases should also contain a good story. Stories need to have a solid beginning, middle and end. A good conflict story also has a motive. The driest insurance case has to have an element of motive for jurors to either want to find for or against a party (some plaintiff verdicts are for the plaintiff and some are against a defendant.) Highly technical cases frequently ignore this element of the story. Even when a motive seems apparent, jurors could miss it and consider it essential. Why would company A defraud Company B, what was the gain, what the risk -reward scenario? Spell these out for jurors early in the opening statement to set the stage for why everyone is there in the first place. For example, in the Enron case, the motive would obviously be greed, but underlying motives and individual motives also occur. Perhaps an executive thought it would be good for his career to be recognized as coming from a successful company so he did nothing to stop the fraud. Counsel should create as clear a picture of reasonable motives to have a story make sense to jurors. An unreasonable motive will not match the reward: would a Fortune 200 company really risk losing everything for $100,000?

Analogies are another effective way to personalize a case or a set of facts. Jurors like analogies because, if the analogies are good, they will enable jurors to access their own experiences. Jurors, like everyone else, make sense of information by filtering it through their own experiences. When counsel argues price fixing allegations by saying that the defendants colluded to falsely hold down free market prices, jurors are only partly listening. It is more effective to say that simply and follow-up with an analogy. For example, “the defendants decided amongst themselves that they would price their goods or services lower than the smaller competitors, thereby changing what the price would have been if driven by normal market circumstances. They reaped huge rewards and consumers were ripped-off. Consequently, my client suffered because it was unable to compete. It is like the family owned coffee-shop going out of business when the national chain moves in a few doors down—it just isn’t fair.” The latter exchange plays into jurors’ emotions and puts competition at an understandable and personal level.

There are some truisms in jury trials: Jurors fill in holes to a story based on their own experiences, there has to be a reason for someone to do something and jurors think with their emotions more than their intellect (generally speaking, before I get hate mail). If counsel can appeal to jurors on these levels by appealing to jurors’ experiences and allowing jurors to access their experiences, providing a solid motive and minimizing the legalease, counsel can expect to connect with the jurors and provide the necessary tools for jurors to handle complex litigation.

San Mateo top prosecutor guilty of stealth racial bias in jury selection

San Mateo top prosecutor guilty of stealth racial bias in jury selection.

Jury selection: art or science?

This blogger questions whether jury selection is an art or a science…easy: BOTH. There is no substance to this article; in fact, it isn’t really an article, more of a question posted to readers. But the answer is both.  Litigators who are silled in jury selection treat is as more of an art. Jury consultants use more of the science in the best case scenarios and the art in instances when the science is not available. The crapshoot aspect of predicting human behavior pops up when voir dire is limited to 5 questions…another article.

The sum of its parts…

A great illustration here on why it is critical to look at your panel holistically.  The jury is composed of individuals that can, and often do, form strong bonds. Evaluating only the individuals is shortsighted.

Work/life balance

 I love this article about working from home.  In fact, I am often more efficient working from home because there is far more for me to do here so I must use my time wisely.

Standardized background checks for jurors?

This is an interesting article about doing background checks on prospective jurors. In New Mexico, this is somewhat standard in criminal cases. (In Boston too.) However, in New Mexico, the prosecution does the checks and apparently is not always obligated to share the information with the other side. (Not everyone has access to the database.) Some noted that this is an advantage that one side has over the other. This system of doing background checks has some merit because in several instances, jurors have been caught misrepresenting their criminal backgrounds. In a criminal case, this is something counsel would want to know and could make a difference in a juror’s perspective on the case. But is this something that should be standardized everywhere? That is a tricky question. On balance, it is an important piece of information about a juror who might decide the fate of someone else facing criminal charges. But, as Mr. Anthony pointed out in the article, it could create a reluctance of jurors to be forthcoming in voir dire, questionnaires and even showing up for trial.

Look for leaders

In Federal Court, as I have mentioned, attorney conducted voir dire is very limited, if allowed at all. When faced with selecting a panel in these situations where I know very little about the prospective jurors, I pay a lot of attention to the potential leaders.

The leaders on a jury can hang a panel, persuade the others and take the reigns and steer the others to a high damage award. Sometimes you want these attributes. Of course. But if you aren’t confident about which way your leaders will vote, be very careful about leaving them on the panel.
Here are some things to look for in assessing leadership potential:

Occupational leadership. This includes jobs such as senior managers, teachers, salespeople and union stewards. In addition, look for people who have leadership roles within the community, e.g., volunteer organizations, business organizations and community/church groups. Someone who is president of the PTA or co-chair of the local food bank board is not afraid to drive the deliberations bus.

In addition to individuals, I take a holistic view of the venire and consider alliances that could form. There is strength in numbers and an alliance of 2-3 jurors on a panel of 9 can be disastrous. Alliances are generally formed by people with similar work histories or current occupations, cultural or racial minorities within the panel, minority genders, I.e., 2 women on a panel full of men, and alliances are sometimes sparked by sitting next to someone for several weeks. 2 jurors who themselves may not exhibit strong leadership traits might form a formidable alliance.

Finally, look at body language and verbal traits. Jurors who raise their hand in response to every question are more likely to talk a lot in deliberations. Jurors who are active listeners and nod a lot and roll their eyes and generally react more are more likely leaders than the ones slumped down, avoiding eye contact and looking scared and nervous.

Consider all of these issues when putting together your jury in terms of who you want to lead your charge in deliberations.

Big dollars

The Pfizer settlement is interesting to me.  Obviously this is a huge number and the evidence Pfizer faced was bad. And, Pfizer clearly wants a clean slate to move forward with the Merck deal. I wonder if there was any jury research that supported this kind of settlement? (Anyone know?) I wonder if a jury would have gone this high? Pfizer can absorb this settlement in terms of dollars likely much easier than it can absorb perhaps any hit to its stock or reputation. Time will tell. I hope their PR team is working overtime. So far it doesn’t appear that way.