An Invaluable Weapon Often Critical to Litigation Success

TASA ID: 2156

It is six weeks until the five year anniversary of the filing of a $14 million construction defect lawsuit and the plaintiff’s law firm has run out of legal options. The presiding judge of a Los Angeles Superior Court branch has put out the word that he will let the suit “die” because he didn’t have a courtroom large enough and wasn’t going to tie up a judge for six months.  The firm’s clients spent hundreds of thousands of dollars to this point in the pretrial litigation process.  Worse yet, the city already served the firm’s clients (homeowners) notice to move out of their residences unless they had been repaired.

In total desperation, the law firm turns to a public relations firm and asks if there is anything that can be done through communications.  While many actions could be taken, because of time constraints (e.g. five year statute), the most viable strategy was to play the “media card.”  In the next two weeks, numerous front page newspaper articles and radio and television interviews were generated decrying the fact the justice system was denying the homeowners the inalienable right to have their “day in court.”  The target: the presiding judge. 

The result: three weeks before the “drop-dead” date, the judge scheduled the trial in an Elk’s Hall with a “rent-a-judge.”  Six months later, a jury awarded the plaintiff’s $10.8 million dollars, a California state record for construction defect cases.

While this might sound like an unusual situation, it is an excellent example of not so much “the power of the press” - but instead, the undeniable and inextricable relationship between the court of law and the “court of public opinion.”

While utilizing the mass media as a means to educate, inform, persuade and motivate, the court of public opinion is by far not the only “arrow” in the “quiver” of communications options that can be used to impact the litigation process, it is a most potent - and often “deadly” - one.

Unfortunately, many trial lawyers are myopic or subscribe to the “ostrich approach” believing that the only thing that really matters in litigation is what transpires in pre-trial discovery, depositions or in the courtroom.  It is far past time for them to awaken to the interrelationship between law and communications.

In both the court of law and the court of public opinion - particularly when juries are involved - there is one constant: perception is more important than reality.  Prime example: check with the O.J. Simpson jurors regarding the “reality” of scientific DNA findings and the “perception” that all evidence was tainted and the police don’t give equal treatment to minorities.

Another reality is this: perception is more affected by communications than by laws or law books.  Therefore, it is critical in this day and age of advanced technology, sophisticated communications systems and instant information that litigation planning encompasses a communications strategy, as well as a legal one.  For in truth - as the law firm recognized in the defect lawsuit - in litigation, the “battle” may occur inside the courtroom but the “war” may be won or lost outside of court.

Use of the media to “spin” one’s case is most often identified with the trial portion of the litigation process.  Very few juries are sequestered, so: therefore, trying one’s case simultaneously in the press enables attorneys to influence the public - and, by extension, the environment surrounding jurors.

The importance of this tactic cannot be minimalized.  Several years ago, the federal government was involved in a very high profile, national trial in Los Angeles against a controversial but internationally-renowned businessman.  The government did such an effective job of castigating the defendant in the press before the trial and putting its “spin” during its early stages that the case was almost lost before it started.  “Fighting fire with fire,” the defendant’s attorney began holding his own daily court step news conference.  In a major surprise, the defendant was acquitted and his attorney cited playing the “media 
card” as a major reason.

As a trial is the end of the litigation process, it also offers the last of an infinite number of opportunities to use communications techniques (including the media) to achieve client litigation objectives outside the courtroom.  Effective communications can save clients enormous amounts of time, money and emotional distress.  Following are a few examples:

     *  Avoiding litigation through public pressure - Often, law firms can achieve their client’s needs without going to court by exposing injustices.  Example:  A developer in San Francisco wants to construct a shelter for senior citizens but is unable to get a zoning variance from the city.  The law firm arranged for significant media exposure on the lack of senior citizen housing.  As a result, the zoning board relented and granted a variance.

     *  Using media while protecting clients - Parents of the slain school children in Paducah, KY were besieged by the media prior to a pretrial hearing.  The attorney wanted to get their message out but wanted to avoid conflicting views, harassment, etc. if parents were interviewed individually.  A news conference was held which ensured a “unified voice” and spare them from long, arduous, repeated questioning.

     *  Public exposure for lawsuit - Probably the occasion when attorneys most often seek media exposure is to announce the filing of a lawsuit or criminal charges.  The most utilized format is a news conference.  Sometimes news conferences are used far into the litigation process just to create awareness that a lawsuit exists.  Example:  In 1981, in Washington, D.C., a news conference was held to make the public aware that a lawsuit brought by the U.S. Hostages in Iran against the U.S. and Iran was on appeal to the U.S. Supreme Court.  It previously had almost no public visibility.

     *  Using media to break through “stonewalling” - When the other party refuses to cooperate, often a little “public attention” is the remedy.  Example:  In a divorce case, the female spouse living in Fresno would not respond to requests from attorneys of the male spouse, who lived in Los Angeles, to meet to discuss the financial settlement.  The Fresno media was used to elicit exposure for a fact that was embarrassing to her.  Within one day of the exposure, she was in Los Angeles for a meeting.

     *  Using the media to avoid trial - To emphasize the importance of the court of public opinion vs. the court of law, many defendants in a civil lawsuit don’t fear the loss of money as much as their image or reputation (e.g. President Clinton).  In criminal trials, defendants can win in the legal court while losing in the public court (e.g. Simpson).  The fear of lost image can be a powerful incentive to settle.  Example:  A major toy company can afford to lose millions in court, but it can’t afford to lose it’s business altogether 
because consumers view their toys as unsafe for children.  Therefore, they may have much more fear of a reporter than a lawyer.
The “bottom line”:  There is a very distinctive symbiotic relationship between the court of law and the court of public opinion.  For law firms to deny it - or not to recognize it - is counterproductive to their clients’ best interests.  Effective use of the media and a myriad of other communications actions must be evaluated from the time the ink dries on the client agreement.  If not, the legal “battle” could be lost - before it even starts.


The author (TASA ID #: 2156) is the president of Fisher & Associates, Inc., a Los Angeles area (Westlake Village) public relations firm which was one of the nation’s pioneers in developing communications programs for the legal profession.   

TASA Article Disclaimer

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA and the author (TASA ID #: 2156). Contact marketing@tasanet.com for any questions.

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