Litigating High-Profile Cases: Thoughts From The Bench And Bar

The media environment has evolved a lot in the past 20 years, and lawyers handling major cases must evolve along with it.

The vast majority of cases are of interest only to the litigants (and maybe not even them, depending on the case). But a handful of cases, for whatever reason — celebrity parties, a huge amount in controversy, a controversial subject matter — attract greater public interest. What is it like to litigate or to preside over such a matter?

This was the subject of an interesting panel at the 2015 annual convention of the National Asian Pacific American Bar Association (NAPABA), held last week in New Orleans, which featured the following impressive panelists:

Samidh Guha, a former federal prosecutor and current defense lawyer who has defended such individuals as hedge-fund magnate Raj Rajaratnam and former Tyler Clementi roommate Dharun Ravi, noted how the dynamics surrounding high-profile cases have changed dramatically since he started practicing in the 1990s. Back in the 1990s, the conventional wisdom for lawyers handling major cases was to not worry about the press and to focus on the legal issues. For whatever reason, that’s no longer the case, and today both lawyers and clients spend more time dealing with journalists, politicians, and other outside interests, as opposed to just the judge and jury.

The explosion of media outlets in the digital age, the rise of social media, and the increased willingness of lawyers and clients to deal with the media all combine to create opportunities, but also challenges. For example, what can judges presiding over jury trials do to prevent jurors from breaking the rule against doing outside reading about the case they’re hearing? Judge Lucy Koh shared one interesting idea that she tried in a trial where she worried that the jurors would feel they were “missing out” by not being able to read the news coverage of their matter. She told them that the court librarian would create a “scrapbook” for them about the case, collecting news articles about the proceedings that the jurors could read after the trial was over. It was a big success, and other judges have followed her approach in other cases. (In case you’re wondering, it was the Apple v. Samsung trial; Judge Koh did not mention the matter by name, but most of us knew what she was referring to.)

The increased receptivity of lawyers to deal with the media in high-profile cases has been a boon for public relations and crisis management firms like Sard Verbinnen (which longtime Above the Law readers may recall from its past work on Charney v. Sullivan & Cromwell, where it represented S&C, and its ongoing work for Chevron in the endless Ecuadorian environmental litigation). Matt Benson of Sard Verbinnen explained that while his firm doesn’t drive litigation strategy, which it leaves to the lawyers, it provides important support in helping other stakeholders understand the legal context and developing the media strategy.

That media strategy, Chatterjee noted, might raise a larger social issue that may or may not get resolved in the legal case. Chatterjee mentioned a case he handled years ago on behalf of a gay couple suing an adoption website that didn’t allow gay couples to post. The media strategy in the case was to raise public awareness about marriage equality and gay couples’ interest in becoming adoptive parents. Marriage equality didn’t become a nationwide reality until much later, but the media coverage of the various legal cases helped increase societal understanding of the issues and galvanize public opinion, which in turn contributed to changes in the law.

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Media strategies for high-profile legal cases are also important because of the effect that press coverage can have upon businesses, Guha explained. Negative media coverage can drive down a stock price, harm employees, or undermine a company’s ability to secure investment. For example, the criminal prosecution of Martha Stewart had major implications for her publicly traded company, Martha Stewart Living Omnimedia.

When should a PR or crisis-management firm be brought into high-profile cases? “Early and often,” said Matt Benson of Sard Verbinnen. It can be risky for lawyers or their clients to speak with the media during a high-profile case — your clients might make damaging statements that could be used against them at trial or sentencing, for example — but in some cases it can’t be avoided.

The Martha Stewart case, in which Sard Verbinnen worked for Martha Stewart, is a good example. Her value to her company was so great and media interest in the case was so high that she couldn’t afford not to be out there. But she needed to be very careful not to make any statements that would hurt her legal case. So Sard Verbinnen helped develop a website, MarthaTalks.com, so she could communicate to consumers and to her fans in a controlled way.

When working with an outside PR firm, lawyers and their clients must be careful to protect the privileged or confidential nature of communications. Whether certain communications with the PR firm are discoverable sometimes becomes the subject of litigation. Benson said that Sard Verbinnen is generally engaged through outside counsel and works closely with them, to preserve attorney-client privilege and attorney work product protection, and will often communicate over the phone or in person instead of by email.

Lawyers and PR firms working on major cases must also be careful when dealing with journalists. Ground rules for a conversation — e.g., whether it’s on the record, on background, or off the record — should be specified at the outset of an interaction. Even if the journalist seems warm and cordial, Benson reminded the lawyers to keep their guard up. News outlets have interests that diverge from those of the lawyer and client. For example, journalists often want more information about the case than the lawyers are willing or able to provide, or journalists might want to sensationalize the case to make it more interesting to their readers.

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“The media is not your friend,” Benson told the lawyers in the audience. “Journalists have jobs to do — and so do we.”

2015 Annual Convention [National Asian Pacific American Bar Association (NAPABA)]