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Hard Pressed

by david reich

illustrationTo talk or not to talk? How to protect your case, help your client, and defend your reputation when the media comes calling (illustration: John MacDonald).

Getting it Wrong
Why Talk?
Media Relations 101
Who Needs Media Skills?

What's Off the Record?
Advanced Media Manipulation


From the Scopes "Monkey" Trial to the trials of the Rosenbergs and Dr. Sam Shepard, from the congressional Watergate and Iran-Contra hearings to events like the Elian González custody battle and the Bush/Gore presidential election, some of the most riveting news stories since the end of World War I have had lawyers at their forefront. Lawyers in court, lawyers at press conferences on courthouse steps, and in the last decade, via regular television exposure, law professors have become household names, as impartial "legal analysts." Even the events of September 11, while not at first glance a legal story, will sooner or later become one, and as criminal defendants are brought to trial and corporations sued in connection with the World Trade Center and Pentagon attacks, legal point and counterpoint will flicker once again on the nation's television screens. "More and more of what we do as a society seems to be about law," says Steven Weisman '73, who hosts an on-air legal clinic on Boston's WBIX radio. "Many times it involves trials, and other times legislation and regulation or resolution of disputes. Law is involved in so many stories."

Since the O. J. Simpson trial, media have discovered that legal stories can attract and hold an audience. Laurie Levenson, a Los Angeles law professor who has served as legal analyst for three major television networks, says legal stories' appeal can range from the civic: "In the Rodney King case the issues of race and police conduct really mattered; they really affected people's lives," to the sensational, "O. J. was a soap opera with real people as stars." Professor Dale Herbeck is chair of the Boston College department of communication and teaches courses on law and media. "Crime is a natural for media interest," he observes. "So much of what crime is about is narrative." Indeed, trials and the events leading to them offer three classic story elements: conflict (between litigants and between opposing lawyers); mystery (what really happened?); and suspense (who will prevail?).

Combined with unprecedented growth in the number of media outlets—especially websites and all-news cable channels—the growing interest in legal stories has meant more depth of coverage, says BC Law Professor Robert Bloom '71, who has explained law and legal procedure to NPR, the Fox News network, the New York Times, and Newsweek. Now, he says, "they don't just report the crime, but the legal issues behind it." He explains that the increase in media outlets has created competition for audiences, thus, "each outlet is looking for another angle, so that their coverage is different from that of other outlets."

Unfortunately, the likelihood of misreporting rises in proportion to a legal story's depth. Some blame rests with lawyers, says Levenson. " Lawyers don't know how to talk to journalists," she says. " They use lawyer words instead of real people words. They don't distinguish between what the law says and how they predict [a case] will come out. And a lot of lawyers will talk about things they don't know about. One of the hardest things for a lawyer to say is "I don't know.'"

However, much of the blame rests with the media. Because most reporters do no have law degrees, they lack detailed understanding of the law or the way the legal system operates. " Legal issues these days are too complex for a reporter even to understand his sources without legal training," says Steven Weisman. " That's why, in the Simpson case, only a handful of reporters picked up on the larger legal issues, such as how evidence is portrayed." In that instance, he says, some reporters fell for the argument that you can't change DNA evidence to make it appear to be someone else's. Weisman suggests that reporters covering legal stories should have a law degree as well as a few years' experience in law practice, " to understand the practical elements of the stories they are covering --what goes into a plea bargain, for example."

Worse than the lack of a law degree, many reporters who cover trials have little experience on the legal beat, observes Dan Kennedy, media critic of the Boston Phoenix, who covered the Woburn, Massachusetts, toxic waste trial depicted in the book, A Civil Action. The media, says Kennedy, often "send in general assignment reporters, and they end up groping around in the dark."

Even when reporters do have law degrees, few of their readers do. Thus, legal issues must be simplified for popular consumption, says Michael Cassidy, associate dean for administration at BC Law and former chief of the criminal bureau at the Massachusetts attorney general's office. In addition, legal cases can be long and complex, and the size of television and newspaper stories is limited by airtime and column-inches. " Frequently it is impossible to summarize a legal issue, claim, or defense in a hundred words or less," says Cassidy, " so reporters get it wrong in trying to do so."

Former Boston television reporter David Ropeik makes a similar point. " A news story isn't a record of a trial," he says. " It's a challenge to the reporter to include the context, subtleties, and extra detail that can help make a story complete and accurate." Another more pernicious cause of misreporting is the media's tendency to emphasize, in Ropeik's words, " the more dramatic, controversial, and negative aspects of anything they report." Criminal defense lawyer J.W. Carney Jr. '78, who made headlines defending abortion clinic gunman John Salvi, explains that "some media are as much in the entertainment business as they are in the news reporting business....This leads reporters to emphasize the sensationalistic aspects of a legal story rather than the core substance of a case." The Boston Globe story on opening statements in the Salvi trial led with the prosecution's opening and didn't mention Carney's defense opening until the eighteenth paragraph, he recalls, and adds, " I was disappointed, but then I read the Boston Herald, and it took twenty-seven paragraphs to mention that the defense had also made an opening statement." (By contrast, he credits the New York Times with mentioning the defense case in the second paragraph of the article on the opening statements in Salvi.)

Ropeik cites a high-profile case he covered for Boston's Channel 5--socialite Claus von Bulow's retrial for the attempted murder of his wife--as another example of the media's being blinded to a crucial issue by its zeal to "play up the aspects of a trial that are most attention-getting but may not be the most important for the trial's outcome." A turning point in the von Bulow retrial came at the end of a three-day-long hearing on the expertise of a doctor who was prepared to testify to the presence of scratches, signs of a possible struggle, on the body of the comatose Mrs. von Bulow when she was first brought into the hospital. The judge ruled that the doctor couldn't testify because he "wasn't an expert in the field of scratches," Ropeik says. " She based her ruling on a three-to-two ruling in a roughly similar case in Michigan. Her decision got reported [by most media outlets] but not the flimsy reason for rejecting this pivotal piece of evidence."

Knowing of the many obstacles to good reporting of legal stories, why would a lawyer ever talk to a reporter? Among the nobler motives is the wish to improve public understanding of the law. "It's important that the public trust the legal system," says the Law School's Bloom, "and the more you know about the system, the more you can look at it in a positive way, and in a critical way….[This] can lead to changes in the system through the legislative process." In their daily work as litigators, lawyers can use the media "to influence the public," Bloom continues, "and if it's going to be a jury trial, to influence the jury pool."

Weisman says that a jury can come in with subconscious biases that are molded by the media, so to ignore the media is to do so at the peril of yourself and your client. Cassidy adds that "criminal defense lawyers and civil lawyers on the plaintiff's side have the most to gain from using the media.…David has more chance of beating Goliath if public sentiment is on his or her side."

Defense lawyer Carney counters that media coverage of criminal trials is almost always slanted toward the prosecution. He says, "The prosecution's case is already a headline: ‘The defendant killed his estranged wife and kids, and their bodies were found buried in a trunk in the backyard.' Whereas some defense lawyers, talking to the press, often feel they must resort to some lame platitude such as ‘the defendant is cloaked in the mantle of innocence.'" Levenson, who, like Cassidy, once worked as a prosecutor, is nonetheless inclined to agree with Carney. She points out that in many criminal cases, prosecutors can produce dramatic images such as tables of weapons and drugs for the cameras of newspaper photographers and television stations. "And then," she adds, "the prosecutor stands next to the flag—that makes a good image. The defense lawyer stands next to a guy in prison garb—that doesn't make a good image."

So, why does Carney talk to reporters? "Was it Mark Twain who said, ‘Never pick a fight with someone who buys ink by the barrel'? As a criminal defense lawyer," Carney says, "I have to be aware of the damage the media can do to my clients if they really want to get them.…Nothing I put in the media ever helped a client," he admits, "You can only hope to do damage control if you're a defense lawyer."

As for prosecutors, aside from trying to get the public behind a prosecution, they can use the media in a number of ways in keeping with their governmental role. During her days as a prosecutor, Levenson says, she talked to the media about a pending case "to let the public know the job was being done, to let other perpetrators know we were on their trail, and to let other victims of the defendant know about the charges so as to encourage them to come forward."

Kevin Burke '71, the district attorney of Essex County, Massachusetts, says his office talks to media mainly during criminal investigations, "to release information related to the public's need to know in a public safety sense, or if suspects have fled, to encourage the public to help us find them." Favorable coverage of a high-profile case "doesn't hurt [a district attorney] if you're running for reelection," he adds, "but it doesn't help your case, except maybe when it comes time for sentencing. Judges are human, and public opinion can creep in sometimes."

Media can also create the climate for thoughtful reconsideration of questionable verdicts, says Boston's Channel 4 reporter Dan Rea (who has a law degree). His reporting helped get a commutation for Joseph Salvati, who served thirty years in prison for a murder many people feel he didn't commit. "The court of public opinion can sometimes provide you justice that courts of jurisdiction cannot provide," Rea says.

While media generally show less interest in civil cases than criminal ones, spectacular tort actions can draw its attention, and then it can be useful for both defendants and plaintiffs to think about a media strategy. According to Dale Herbeck, many corporations, when they're sued, will hire a media relations firm before they search for legal help. After all, their public image is at stake, and so is money in whatever amount the plaintiff is demanding. Plaintiffs' lawyers, meanwhile, can use negative publicity about a defendant to force a favorable settlement. Regarding the recent cases against Firestone, Herbeck says, "Media coverage has so sensitized the public to problems with Firestone tires that the company knows if it goes to court, it is going to get pummeled."

If you decide it is in your interest to talk to a reporter, common sense and common courtesy will go far in helping you avoid pitfalls and getting the most from the encounter. Here are some suggestions from experts and practitioners.

Be honest. Don't ever mislead reporters, let alone misrepresent a fact, warns BC's Herbeck. "The media is very good at exposing inconsistencies," he says.

Maintain your civility. Snide and supercilious comments don't play well with reporters—or their audience. Neither does gloating when you've won a case or blaming someone else when you have lost.

Return phone calls promptly. "One of the things lawyers frequently do not understand is that reporters are working under a deadline," says Cassidy. "Waiting until the end of the day to return a phone call is not going to cut it if the radio interviewer is looking for a sound bite for drive time. Lawyers who want to be responsive need to understand the different media and their deadlines."

Never say "no comment," on camera or in print. Carney jokes that when a defense lawyer refuses to comment, "People psychologically see a neon sign on your forehead blinking, ‘Guilty, guilty.'" Herbeck adds that a no-comment strategy "licenses the media to cover the story however they want. If you say no comment, you are, in effect, commenting. In most situations, it communicates the inference you're trying to avoid. ‘How do you explain your client's fingerprints on the gun?' Saying no comment implies you don't have an explanation."

Cultivate relationships with reporters. As a reporter, Ropeik had relationships with both criminal defense lawyers and prosecutors, whom he would call for answers to legal questions brought up by trials he was covering. "Then, when I would cover one of their trials, they would know that (a) I'm friendly and (b) I know the law." Kevin Burke's office assigns the media outreach to an on-staff specialist who can answer legal questions over the phone and who holds seminars on criminal procedure basics for reporters new to the legal beat.

Know in advance what you intend to say, practice saying it beforehand, and during the interview, stay on point and speak concisely. Most reporters are looking for brief, punchy quotes, so rambling speeches and elaborate phrasings aren't likely to get picked up. By contrast, says David L. Yas, publisher of Massachusetts Lawyers Weekly, "if you say something that's sexy or snappy and encapsulates the case, we're probably going to use it."

Be careful how you frame a legalistic argument. "There are certain legal strategies that work well in court but not with the media," Herbeck says. "For example, a motion to get evidence suppressed if it has been obtained illegally. It's explain to reporters that it's not about this particular evidence; it's about a larger constitutional principle."

Ask questions before you answer questions. Make sure you understand what you're being asked, and assess the reporters' knowledge of the legal issues underlying their questions so that you can fill in any needed background.

Do your homework. Don't discuss a case until you're certain you know the facts and the law. When in doubt, look it up, Levenson advises. "Don't guess, don't speculate, don't fudge. There are so many times when people shoot from the hip about what a pleading says, what the code says, what the transcript says." Even better, when it's possible and answers the question, fax a copy of the document instead of trying to paraphrase it.

Don't talk off the record, except with reporters you know well and trust implicitly. Ropeik says that attorneys who gave him information off the record that helped him put the facts in context made him trust and rely on them more. On the other hand, both Ropeik and Levenson know of situations where off-the-record comments were printed with full attribution. (For definitions of on the record and off the record and a discussion of the gray area in between, see sidebar, page 26.) During the Rodney King beating trial, "there was one reporter who took something I thought was off the record and distorted it and used it," says Levenson. "I think I made a personal comment about one of the litigants. It was very painful to me. That's when I grew up." Now she goes by the rule "unless it's a journalist you know so well, nothing is off the record."

If you suspect your case or client is going to end up in the media, be proactive and try to shape the coverage. "If I were representing a developer," says Herbeck, "who wanted to put up more houses and take down those woods, I would get ahead of the curve and shape public opinion. The story can be framed as "here's this arrogant businessman who wants to impose a development on us,' but it can also be framed as "here's this responsible businessman who wants to work with us.'"

Be as forthcoming as you can afford to be. Ropeik recalls the Civil Action trial, held in federal court where television cameras are banned. The attorneys for the plaintiffs shared the physical evidence they would be presenting the next day so Ropeik could get it on videotape. Meanwhile, the defense was wholly uncooperative, he says, "so that some of their information and visual material, which would have helped me balance the story, was only present in court and wasn't included in my journalism."

Basic media guidelines aren't taught in most law schools. No one interviewed for this article knew a law school that has a course on media relations. One near-exception is a course at Loyola School of Law, where Levenson teaches, that introduces law students to the profession of legal journalism (several of her former students now write for legal newspapers) and includes sessions on how a lawyer can best deal with media.

One reason for the lack of media education in law schools is a widespread feeling that only a small percentage of lawyers ever face a reporter's microphone. Carney says "one hundredth of one percent of lawyers" have any use for media relations skills.

Herbeck agrees that the overwhelming number of legal cases don't interest media, but he still thinks most lawyers can benefit from knowing how to handle an interview. "A DWI is not a big issue unless it's some prominent local individual," he explains. "A divorce is not a big issue unless it involves a pillar of the religious community. Sooner or later," he concludes, "most attorneys will run into a case" that will require them to talk to a reporter.

Levenson concurs. As a network legal analyst, she often speaks to bar groups on media and law, and she starts the sessions by asking how many in the audience have ever been interviewed for either radio, television, or a print medium. Typically more than 90 percent of the audience members raise their hands. "These bar groups include all kinds of lawyers," she says. "People who do wills and trusts, bankruptcy, and all kinds of boring stuff. But sooner or later everyone gets their fifteen minutes of fame. The question is, how wisely do you use it?"

David Reich is a regular contributor to BC Law Magazine.


What's Off the Record?
The terms on and off the record, on background, and on deep background can mean different things to different reporters, so while the definitions given here are generally accepted, it makes sense to spell out exactly what you and the reporter are agreeing to before you start an interview. Unless a reporter says otherwise, all conversations between you and the reporter are considered on the record. This means anything you say can be quoted verbatim, paraphrased, or summarized. It can also be attributed to you by name, with your job title or other identification. If a reporter agrees to speak with you off the record, nothing you say can be used in any form. If a reporter agrees to speak with you on background, anything you say can be quoted verbatim, paraphrased, or summarized, but the reporter may not identify you as the source except in a generic way—e.g., as "a Manhattan civil rights lawyer." If a reporter agrees to speak with you on deep background, your words can be paraphrased or summarized but not quoted. Also, conversations on deep background must be reported without attribution of any kinds.--DR

Advanced Media Manipulation
Trying to have a warming effect on one' s fellow humans usually makes a lot of sense, especially for a lawyer trying a case. But what if you' re defending an unpopular client who appears to have committed a horrible crime, and it looks as if the media can do your case more harm than good? You may want to adopt some of J.W. Carney' s media damage control techniques.

1) In advance of a telephone interview with a print reporter, Carney suggests that you type three sentences on different aspects of the case, as you want them printed. Tell the reporter you want to give some quotes on the record, then go off the record to talk more freely, then go back on the record to answer questions. Read the quotes slowly to make sure the reporter writes them down as you want them. Next, go off the record and provide the background that will not be attributed to you--disparage government witnesses, mock the police investigation, brim with overconfidence about your planned defense. Finally, arrange to be interrupted by a phone call and tell the reporter you be in touch before deadline. Regrettably, you can' t, and the only thing that is printed in the paper is your three perfectly formed sentences.

2) For a courthouse steps interview with television reporters, Carney says to prepare the one sentence you want to see on television that night, and no matter what you' re asked, repeat that sentence word for word with great sincerity. For example, your sentence might be, "I intend to investigate this case fully and determine whether there is an appropriate defense," you will use this sentence to answer any and every question. "To really insure that your sentence will be on television that night," Carney says, "each time you repeat the answer, start with the name of the reporter whose question you are answering--for example, 'Valerie, I intend to investigate this case fully and determine whether there is an appropriate defense.' If the answer doesn' t go with the reporter' s question, she will retape the question so that it fits your answer."

3) Even if you don' t want to talk, Carney advises, "never run from a camera. It makes you look like an unindicted co-conspirator." Instead, if you have nothing to say, give a multipart answer to every question. " There are four important points to make. The first point is...." Television news can only use twenty seconds of you, and you' ve spoken for much longer. If they only show you saying, " The fourth point is...," the viewers will want to know why they didn' t see the other three. Thus, you haven' t said, "No comment," but you guarantee there will be no useable footage.--DR

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