Survival Skills for the Courthouse Steps: Running and Gunning the Media Gauntlet
“WHILE THE JURY WILL RENDER ONE VERDICT AT THE CONCLUSION OF THE TRIAL, THE MEDIA WILL BE PASSING JUDGMENT ON A DAILY BASIS.”
Though they don’t wear flak jackets or dodge artillery fire, reporters who cover high-profile trials are “embedded” in the story, much like today’s war correspondents. Each day, as the principals go into and out of the courtroom, they may face a pack of reporters shouting out questions, jockeying for position, and racing to meet deadlines. Typically, a news organization will assign the same reporter to cover a newsworthy case for the duration of the trial. The pack of reporters assigned to the story becomes fairly familiar, not only with the case, but also with each other. From pre-trial motions to verdict, this trial is their “beat,” and it’s their job to try to squeeze a story out of the day’s proceedings, no matter what. The daily competition among the reporters heightens the trial-as-sporting-event tenor, and the amplification of daily developments can have an impact on the outcome of the case, as well as, far-reaching implications beyond the trial. While the jury will render one verdict at the conclusion of the trial, the media will be passing judgment on a daily basis, telling the world which side stumbled and which side scored. For lawyers trying the case, running this media gauntlet may be either the opportunity of a lifetime, or a minefield-studded hell. A high-profile trial is the quintessential high-stakes game. Whether you win, lose, or merely survive depends on the strategy you have in place well before you set foot on the courthouse steps.
Knowing Your Options
As a general rule, newsmakers get to decide what tact to take with the media. Among the standard options are:
- Initiate,
- Respond, or,
- Hunker down.
Initiating coverage involves calling a reporter to “pitch” your side of the story, organizing a press conference, or distributing a news release to media outlets. This is an aggressive approach that may be justified if you are reacting to an incident or development that may dramatically impact your case. It is also a high-risk tactic during a trial that can incur the wrath of the judge, evoke accusations of jury tampering, and put you on the wrong side of the ethics rules. The American Bar Association’s model rules of professional conduct state, “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication….” There are many legitimate exceptions to the rule and, obviously, lawyers in the midst of a trial frequently talk to reporters with justification and to good effect. But there is a tremendous difference between seeking out media attention and responding to media inquiries on an if-asked basis. Responding to reporters’ questions is legitimate as long as your comments aren’t considered deliberately “prejudicial.” Whether your comments actually help your client, or their case, depends on the facts, and the quality of your messages. Sometimes, the facts are just plain awful and you can’t conceive of any possible upside to providing public comments. In that case, you may want to hunker down by dodging the media calls, monitoring your caller I.D. and having your secretary run interference.
In a high-profile trial, the general rules, and most of the options detailed above go straight out the window. The trial is a bona fide “event” that comes with a built-in press corps. They have initiated contact, and issued a standing request for an interview, simply by being there. Hunkering down isn’t an option unless you’re willing to be sequestered along with the jury. The simple requirement of getting to and from the courtroom means you will have to run the media gauntlet with your client, or force reporters to run after you, which will make you appear terrified, and make your client look guilty as sin. Your best, and only real option, when standing at the top of the courthouse steps staring down at an unruly gang of reporters is to “feed the beast.”
Feeding the beast means that you agree to voluntarily give the media what they need – this case, information representing your side of the story – and they agree to allow you to stride confidently toward the cameras, and deliver your messages in a dignified manner. For all the talk about media bias, the fact is, reporters really do need both sides of the story. When you meet them halfway, they don’t have a compelling reason to be hostile or aggressive. But ultimately, feeding the beast is only effective if the information you feed reporters serves the interest of your case and client. While your media messages should support your litigation strategy, in fact, you are not “trying your case in the media.”
The Difference Between Jurors And Reporters
While your primary trial objective is a favorable verdict, your objective in dealing with the media is to position your case in the most favorable light. In court, you may have several days to put on your case complete with witnesses, evidence, and exhibits. The jury is a captive audience who must listen to everything you say, whether or not they choose to be swayed by your arguments. Reporters control the playing field on the courthouse steps. They get to ask the questions, ignore most of your comments and select a very small piece of your response – called a sound bite – to include in their story. While the reporter deals in sound bites, you speak in messages. Your goal is to help the reporter select the sound bite that happens to be your best message. Your messages should be a short, compelling summary of the strongest aspects of your case. And to ensure that reporters select your strongest messages, make sure they are responsive to the questions reporters are likely to ask. This process of aligning your messages with the sound bites required by the reporter’s story template, will help you capitalize on the media opportunities, and, perhaps more important, sidestep the pitfalls.
Message And Meaning
The good news is that strong messages can be your saving grace, safe harbor, home base and guiding light. The bad news is that creating them is hard work that must be done ahead of time. If you’re walking out of the courthouse trying to come up with messages “off the top of your head” the chances of damaging your case are high, even greater is the possibility you will simply miss the mark.
In order to get to messages, you must first assess the facts and strengths of your case. Then you can begin to create a message platform – a set of messages (usually three) that, taken together, provide a clear, compelling summary of your case positioned in the best possible light. These messages must also address the essential aspects of the case; what is really at the heart of the trial, what is at stake, who gets hurt, who benefits, and why should the larger audience care.
A message platform is a compressed narrative that tells the story of your case. The story will be different depending on whether you are the initiating party – the prosecutor or plaintiff’s attorney – or counsel for the defense. This is not a level playing field. There is no coin toss or referee to even the odds. The initiating side has the clear advantage for several reasons: they always play offense, they always get to go first and they start with a more compelling story. In criminal and civil cases initiators represent themselves as the victim’s advocates, and victims who have suffered genuine harm are inherently sympathetic. For initiators the narrative is a variation on the theme: “This victim has suffered and we will prove how and why the defendant caused, or is responsible, for the harm.” There are many ways for the initiator to enhance his trial story because the narrative often touches on familiar themes of good vs. evil, victim vs. villain and the powerful vs. the righteous. For the defense, the primary objective of the media strategy is to mitigate damage to their case by refuting the allegations. While there may be some common elements, refuting the initiator’s allegations on the courthouse steps is different from disproving opposing counsel’s case in court. The defense must tell reporters the story of “why it isn’t so” by selecting the one or two most persuasive arguments of their case. This is truly an example of less is more. Reporters have neither the time, nor the inclination to process all your arguments and evidence. By providing too much information you run the risk that reporters will select a weaker aspect of your case. While the defense has a greater challenge, and a more difficult story to tell, effective damage mitigation can be enough to establish that the initiator’s case is misplaced or lacks merit.
Expectation And End Game
The media is just one of many wild cards during a high-profile trial. The most important thing for lawyers to remember is to take charge of what you can control and let go of what you can’t. Ultimately, you don’t get to write or edit the reporter’s story, or dictate the headline. But by understanding what reporters need and how to deliver it neatly into their stories, you can maximize the advantages to your case and your client.
This article was originally published in The Los Angeles Daily Journal, April 21, 2003.
© 2003 DecisionQuest
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