"Conclusions to be reached in a case will be induced only by evidence and argument in open courts and not by outside influence, whether private talk or public print," proclaimed U.S. Supreme Court Justice Oliver Wendell Holmes back in 1907, obviously not anticipating that 85 years later advances in technology would mean that potential jurors all over the country could view an incident on video dozens of time and listen to hundreds of commentators offer their opinions on a case before ever being invited to enter a courtroom.
In recent years, however, both defense attorneys and prosecutors are more sophisticated about using the media to promote their cases. In the recent trials of Michael Milkin, Leona Helmsley and William Kennedy Smith, public relations professionals were busy behind the scenes on behalf of the defendants, while asbestos litigation set new standards for the use of PR by plaintiffs, a pattern that was repeated in recent cases brought against General Motors and DuPont. PR people were also much in evidence during the confirmation hearings of Supreme Court Justice Clarence Thomas.
"It is a cliché, but nonetheless a truth, that one can win at trial and lose in the court of public opinion," says John Scanlon, a pioneer in the field of litigation public relations and now a partner at the New York PR firm of Abernathy/McGregor/Scanlon. "It is also true in rarer instances that one can lose at trial and win in the court of public opinion."
It may be that public relations professionals can play an even more important role. Michael Sitrick, president of Los Angeles counseling firm Sitrick & Co., says his agency has helped companies turn the tide of negative publicity and win settlements before a case even gets to court. "We've had situations in which one side was winning the media battle, and we came in and by working with the legal counsel were able to turn the table, perhaps by threatening to counter sue, or by pointing out holes in their case, and come away with a victory without ever taking the case to court," he says.
As Susanne Roschwalb and Richard Stack of The American University point out in an article in the December 1992 edition of Communications and the Law, the stakes in legal cases are escalating. Eighteen million new cases course through the American legal system annually at an estimated expense to corporate America of $80 billion.
"Lawyers and publicists must begin to understand their respective roles in order to use the strengths of both professions," say Roschwalb and Stack. "Many attorneys believe that skillful media management is a critical component in prevailing at trial. While some lawyers insist they are better off without PR, others have come to see it as another weapon in their arsenal."
There are obvious tensions between lawyers and public relations practitioners in a crisis situation that has legal implications—and today most do.
Christopher Lane, an attorney at the Denver law firm of Sherman & Howard, says there are three basic differences in the way lawyers and public relations people approach a crisis: "Lawyers are taught that the case unfolds in the courtroom, and that what happens during the trial is what matters, but in high profile cases, public relations people understand that the case often unfolds outside the courtroom, and the guilt or innocence of the client in the public's mind may be decided before the case comes to court.
"Lawyers also learn that legally you cannot be hurt by keeping quiet, and that you can be hurt by speaking out, because anything you say can be used against you in court. Public relations people, on the other hand, are taught that remaining silent will be taken by the public as an admission of guilt.
"Finally, lawyers are taught the legal principle that a client is innocent until proven guilty. In the court of public opinion, however, a client is presumed guilty until proven innocent."
Ron Rogers, president of Los Angeles PR agency Rogers & Associates, says, "As a general rule, legal counsel will want to protect the company from any lawsuits and reduce its long-term liabilities. Conversely, marketing and public relations personnel tend to focus on corporate image, sales and the immediate impact of the crisis." A crisis team with skilled representatives of both disciplines needs to weigh both short-term and long-term objectives, he says.
"When a company is in a crisis involving litigation, the lawyers will prefer that the crisis team resort to `no comment' and that it come up with statements that are unacceptable to the press, saying as little as possible in confusing style," Rogers says. "What is needed in crisis communications is clarity. The legal side pushes for containment—keep the issue in a box until it can be decided in court—while marketing argues for higher visibility to defend and continue selling its products."
Rogers points to the Sears crisis of last year, in which the company responded to charges that it systematically over-charged for repairs by using lawyers as spokespeople, denying any fraud, and accusing the California Consumer Affairs Department of political motivation in making the charges. After other states found problems, the company shifted to a response tied to customer concerns, but by then, Rogers says, it was "too late to control the damage and help repair the company's credibility."
Increasingly there is evidence that rather than conflicting with the legal defense, good public relations can help the company in court. After Ashland Oil took full and immediate responsibility for an oil spill near Pittsburgh several years ago, establishing open and honest communication with local communities and moving swiftly to clean up its mess, a judge cited its actions as one reason for lower than expected fines. In contrast, Exxon's stonewalling at the time of the Valdez spill and its lack of contrition were a factor in the high settlement in that case.
Even so, many within the legal community remain hostile towards public relations, and there are questions being raised over the ethics of public relations tactics that are being applied by both prosecutors and defendants' attorneys.
District of Columbia Superior Court Judge Eric Holder believes advocates are targeting the public in order to sway the pool of potential jurors and to put pressure on the courts, citing the case of former Washington Mayor Marion Barry, whose attorney held regular press conferences and staged various public events, which created the impression that there might be public disorder if an unfavorable verdict was returned.
"The role played by the public relations firm of Robinson Lake Lerer & Montgomery in the campaign on behalf of Michael Milken exemplifies aggressive and highly expensive public relations with little or no sense of social responsibility," say Roschwalb and Stack. "The goal of the campaign was to turn public opinion from outrage to neutrality to acceptance and finally to admiration. The PR experts sought to build a positive image of Milken through human interest stories involving his relation to children and reports of his charitable gifts."
Journalists who covered the case say RLL&M encouraged reporters to pursue stories that would discredit witnesses against Milken, while former Drexel Burnham Lambert employees say their letters to the court were edited by the PR team.
The $150,000 a month retainer bought Milken a lot of activity, but little assistance. In the end, says Washington defense attorney Reid Weingarten: "They spent millions on PR and the perception from insiders was it had a negative effect." Weingarten believes that the hiring of a PR firm in itself implies "you are attempting to massage the facts."
Says Michael Sitrick: "This is a growing field, and like any growing field it attracts people who do not have the expertise to do the job properly. It is imperative that clients work with firms that have experience in working with attorneys, that have the respect of legal counsel, and that understand the legal process."
Meanwhile, the public relations tactics employed by plaintiffs' attorneys have also come under fire. Carole Gorney, a professor of journalism and director of the PR curriculum at Lehigh University calls such tactics "litigation blackmail," and cites the appearance on Larry King Live of a widower who claimed his wife's brain tumor was caused by cellular telephone use as a classic example.
"Litigation journalism is seriously undermining the integrity of our legal process," Gorney says. "The role .of the courts is being preempted and their procedures undermined as more cases are tried in the public arena long before official hearings can take place. The arguments are mostly one-sided, devoid of crossexamination, evidence or witnesses."
That criticism is echoed by Nancy Altman, formerly a lecturer at Harvard Law School and the daughter of Robert Altman, a defendant in the criminal investigation of the Bank of Credit & Commerce International. Nancy Altman says the media in the BCCI case ignored exonerating evidence, disregarded weaknesses in the prosecution's case, accepted prosecutorial bias and overlooked prosecutorial abuse in its reporting of the charges against her father.
"In hopes of finding that prominent individuals had been involved in wrongdoing, reporters staked out an adversarial position early on and proceeded uncritically to print every unnamed source rumor and sensational allegation," she says.
Gorney points out that defendants are at a disadvantage in such cases because their statements can be used against them, and that in arguing the legal point that plaintiffs may be to blame for misuing a product, they may appear callous.
In 1983, the American Bar Association's Model Rules of Professional Conduct were changed to limit the type of information lawyers can offer to the media. "A lawyer should not make any extra-judicial statements that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows it will have a substantial likelihood of materially prejudicing an adjudicative proceeding," says the code, in language that makes it abundantly clear why attorneys need professional communications help.
In fact, the charges made by Gorney, Altman and others only make the argument for the use of litigation public relations stronger. Chris Lane agrees that the use of the media by one side or the other in legal proceedings often results in unfairness, but says the strength of the First Amendment makes it almost impossible to prevent such unfairness.
The First Amendment clearly affirms the freedom of the media to cover trials, and justice William Brennan went so far as to hail "commentary and reporting of the criminal justice system is at the core of the First Amendment values, for the operation and integrity of that system is of crucial import to citizens concerned with the administration of government."
The only solution, then, is for those on both sides of high-profile legal cases to understand the ground rules by which the media play, and to have in place a team that defends them in both the courts and the media. The next question is whether they should be entitled to publicly funded representation in the court of public opinion just as they are in a court of law.