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Media Relations Can Work for Your Client in Complex Litigation

Media Relations Can Work for Your Client in Complex Litigation

The widespread use of internet news, videos, blogs and social media to disseminate information about mass tort and other complex litigation has made it easier for parties when they want publicity and harder to avoid it when they don’t.

Embracing the media, new or traditional, may not be for every litigator or every case, but some experts suggest it often is useful.

How can talking to the media outside the courtroom benefit your client?

William Ohlemeyer of Boies, Schiller & Flexner in New York, tells defense clients that employees, shareholders, vendors, consultants and consumers need to hear their version of events; they need to know the company has a viable defense.

“Don’t let other parties define your client,” he said.

To do it right, Ohlemeyer said clients need to get comfortable with the media process. Unearthing potential land mines, finding something positive to say and understanding the differences between off-the-record, background and for-attribution conversations with journalists are keys to dealing with the media.

Before joining Boies, Schiller & Flexner, Ohlemeyer was associate general counsel for Altria Group, Inc. where, among other things, he managed the company’s tobacco litigation and worked closely with investors and the media.

He suggested that lawyers be the company’s face to the media. Lawyers recognize strategies and can protect privileged information. Clients must be careful not to say something that will harm present or future litigation, he said.

Can reporters see your client’s side of the story?

One of the best means for controlling the company image that is portrayed is to build relationships with reporters, Ohlemeyer said. Provide reporters with press packets and interviews that include background on the company, where it is located, what it makes, who regulates it and what science is likely to be discussed at trial.

In one case, Ohlemeyer said the client created a website with depositions and pleadings available to the public, gave regular news briefings as the litigation progressed and made video news releases. The company gave a group of trusted reporters a preview of its opening arguments so that, when they saw the plaintiffs’ opening, the reporters could put it into perspective and present a more balanced story.

Finally, he said to make sure reporters understand the legal process, all the way through the appeal, particularly if it is their first large-scale trial. “So, the headline that gets connected to the verdict isn’t the end of the story,” Ohlemeyer said.

Ethically, how far can you go in presenting your client’s point of view?

Gregory Spizer of Anapol Schwartz in Philadelphia explained that Model Rule of Professional Conduct 3.6 limits extra-judicial speech. It permits a lawyer to make a statement that a reasonable lawyer would believe is necessary to protect a client from the substantial undue prejudicial effect of publicity not initiated by the lawyer or the client. So, when something is said publicly that negatively impacts a client, Spizer said a lawyer has an ethical obligation to mitigate, but there is a fine line between mitigation and violating Rule 3.6.

New York Supreme Court Judge Martin Shulman agreed. “Lawyers should have the right to speak in public on both sides of the aisle on the case, but it’s critical that it has to be factually accurate, it’s critical that they don’t reveal client confidences – maintain their respective relationships – and it’s critical that they don’t taint the judicial process.”

Ohlemeyer, Spizer and Hon. Shulman shared their insights during the Mass Torts Judicial Forum with Hon. Marina Corodemus (ret.) held in Philadelphia on June 27, 2011.