Prevailing In The Court Of Public Opinion: Advice And Guidance From Industry Leaders

Saturday, July 1, 2006 - 01:00

Elizabeth Kephart
Thomson West

When Your Case Hits The Front Page

Opening the event was Craig Miller, vice president and general manager of the corporate division for Thomson West. West served as the sponsor of the event and Miller introduced each of the panelists, highlighting their impressive rsums and experience.

Professor Arthur Miller opened the discussion by commenting on the extraordinary panel. "The word 'character' - or perhaps 'characters' - applies here," said Professor Miller, referring to the seven esteemed panelists from the world of public relations, corporate litigation and the media. He also set up the discussion, noting that the panel was unrehearsed, and should end with the audience coming away with some guiding principles for dealing with the media.

To begin, Professor Miller asked Kuby about the news value of corporate litigation. "Most of the time, in these kinds of cases, whatever is coming out in the media isn't a surprise to the folks within the company," said Kuby. "It's news to the rest of us, but it's not news to the corporate person. Or it shouldn't be a surprise. A corporation's spokesperson should know the position, first of all, and they should anticipate any negative exposure, trying to clear it before it gets to the media."

Brafman added that, in general, corporate spokespersons should be careful what they say. "Corporations should find someone who's not a corporate person to serve as spokesperson," said Brafman. "And they should have anticipated so they don't have to scramble."

Gidez weighed in on the preparation component. "While it's a good idea in theory [to be prepared], more often than not, they didn't see it coming," said Gidez. "They're so into the business that they don't see it, or perhaps they didn't pay attention."

Context Is Key - And The Connection Made By The Media

The result of a "surprise" crisis has a lasting impact. Frankel discussed the race discrimination case with Texaco and the videotapes that emerged in the media concerning the case. While the company was "blindsided" with the tapes, Frankel added that the company executed a unique strategy with the lead reporter on the case, a reporter at The New York Times. "They brought the reporter into the company," said Frankel. "It's risky, but I think they got treated much more fairly than they possibly would have."

Gidez also added that the Texaco case came on the heels of the California affirmative action referendum, Proposition 29. The combination of a high-profile referendum related to race and a large company having race issues increased the media exposure for both - a volatile mix for corporate advisers hoping to mitigate media exposure.

Judge Napolitano said that a certain amount of media timeliness and media proactivity comes into play as well. He noted that the Enron attorneys went so far as almost blaming The Wall Street Journal for the company's troubles. He also noted that defense counsel for the Duke lacrosse players has gone directly to the media to plead the innocence of their clients.

Brafman said that the media, whether we admit it or not, can influence the outcome of a criminal case. He shared his experiences successfully defending Sean "P. Diddy" Combs on bribery and weapons charges and the challenge of finding a jury pool while dealing with negative coverage from The New York Post and The New York Daily News . "There is a client perception out there that counsel must be aware of," said Brafman.

Kuby took a different stance and noted that "facts matter, truth does matter. Counsel can control as much as they want, but the facts will come out."

Brafman offered additional insight. "Part of the problem is that the world isn't white and black; there are degrees of culpability," he said. He shared a story about a reporter, whom he didn't name, that covered a landlord/tenant dispute case that he was trying in the New York City area. Brafman, representing the landlord, won, yet the story was still skewed - in Brafman's perception - to the tenants. Brafman called to find out why and the reporter said, "Remember, there are 3 million tenants as readers and only 40 landlords."

Frankel shared her perceptions on journalists as a whole. "Most journalists do not want to be associated with a pack and they hate to be wrong," said Frankel. "Being aware of that can help get a story out that may or may not already be in the media."

Harshbarger noted that it's not about not having a story in the media; it's about having a story that's accurate, fair and balanced. "In this post-Watergate era, the media waxes and wanes about friendliness to the corporate sector." Behind the scenes, a company needs to know about the problem beforehand.

All About The Media

The panelists also discussed the workings of the media - and how to navigate the ins and outs of media exposure. Gidez said that there are two newspapers that are the most important for corporations, The New York Times and The Wall Street Journal. "Right now, there are two phenomena," he said. "One, there exists a presumption of guilt for many high-profile trials; Sean Combs, CEOs, the Duke players are examples. And two, there's almost a paranoia amongst reporters that they're going to miss something. So they report, report and report. They over-report even if there's no story there. Also, they have a certain immunity - it's very hard to win a slander/libel case."

Harshbarger used the example of the Duke case to illustrate that "guilt" may not always lie with the subject exposed in the media. "Who's really at fault in the Duke case? The process, behind the scenes, was flawed. No one was prepared, no one had answers when the allegations came out, and that shaped the case."

For Harshbarger, it's a cultural problem. "Too often, the culture at corporations doesn't encourage reporting up," said Harshbarger. He talked about a Massachusetts police department apologizing for an unintentional shooting and saying they'd investigate during a press conference. "They approached it with compassion and softened the blow."

But for Brafman, that isn't always a good tactic. "There is not a hard and fast rule that's going to work in every case."

Be Prepared

The panelists all agreed that forming a team before a crisis occurs is crucial to effectively mitigating media exposure. "Company leaders should put a team together that includes some people who don't have to kowtow to the CEO. The team might be comprised of an in-house lawyer, a communications person and outside lawyers," said Harshbarger.

Professor Miller then posed the question about the team: What about the dangers of a team that's too provincial?

Harshbarger responded that many companies do like to stay in-house, especially when a crisis emerges. "There exists some suspicion within most companies if they bring in someone they don't have a prior relationship with," said Harshbarger.

Brafman offered that "the attorney advising can't be a 'yes' person. They have to be able to say 'no.'" Brafman then shared some of his experiences with high-profile trials and how his role as attorney included saying things that his client didn't want to hear.

Weiss took a different stance on the issue, noting that your relationship with the media impacts your position and attitudes toward the company in the media. "It's very hard to win a battle when you've launched an attack at the media," said Weiss.

Harshbarger also added that the role of the advisers - the corporate counsel, outside counsel and communications counsel - is to "manage news coverage, not make it go away."

Professor Miller posed a final question to the panel regarding the number-one thing not to do.

Judge Napolitano said that having the right spokesperson can affect the perception of the case and the client. "I would have a lawyer speak to the press - not the client."

Brafman offered that the spokesperson should "be positive, confident and energetic" when speaking to the media. "Media will want you to dance. Don't."

Frankel did note that being authentic is also important, especially when asked about legitimate inquiries. "Stay away from corporate-speak messages - you'll get a collective eye roll from reporters when they hear a corporate spokesperson use the words 'safe and effective' during a product liability case."

Kuby added the final - and one of the most memorable - thoughts of the evening in regard to speaking to the media. "Don't lie; whatever you say should be true. Or," he added, "true-ish."

Professor Miller then concluded the panel discussion and invited the audience to ask questions. While time was limited, the follow-up questions included audience members asking for specific tips on what they can do within their own organizations. One question surrounded crisis plans and whether there were firm rules on how to plan for a potential crisis. Gidez responded, advising "have good counsel ready: communication, legal and management counsel. Have this ready in advance." Other questions surrounded how to deal with an advocacy journalist, what to tell employees once a crisis occurs, and how to keep employees from speaking to the media. While the panel had different ideas on these matters, they did agree that there is no general rule that works for every crisis.

The formal panel discussion was closed by Tim Wahlberg, vice president of West's Corporate Strategic Marketing organization. A number of the attendees and panelists stayed on to continue their discussions informally.

After the event, Professor Miller noted, "The panelists demonstrated to me the absolutely crucial character of planning ahead - that you cannot hope to get your case or your position portrayed in the media on a reactive basis. You must anticipate. Having a team already set up is critical. You can't pick your ball players in the third inning - you have to pick them in spring training. As unpleasant as it may seem, the highest leader of the company and those that advise him or her must know where the bumps are and anticipate the problems that may occur.

"And finally, even with all the planning you do, every situation is different. There is no such thing as one size fits all in the corporate world. You have to be flexible enough to deal with the unexpected and have the tools, people and resources in place to prevail in the court of public opinion."

Elizabeth Kephart is a communications specialist at Thomson West.

Editor's note: On Thursday, June 8, Thomson West held an exclusive event for corporations titled "Prevailing in the Court of Public Opinion: What Corporate Leaders Should Know About Interacting with the Media" at the Rainbow Room in New York City. The diversity of the views of the esteemed panelists should be of great interest to our readers, who are challenged on a daily basis with the unpredictability of their daily tasks, the amount of risk they're asked to mitigate and the ever-increasing possibility that media attention will put them in an unwelcome spotlight. An area of increased focus for corporate counsel is mitigating legal exposure while managing media exposure. As recent history has illustrated, corporate litigation often involves trying a case in the media as well as trying the case in the courts. This kind of dual "trial" blurs the line between legal concerns and public/media concerns and goes beyond what has traditionally been corporate counsel's role. Overall, the panelists stressed the importance of having a team of advisers - only one of whom is a legal adviser - to help during a crisis. Have a plan; gather information as quickly as possible and work to retain trust with employees, the public or the media. The panelists shared their experiences, their advice and their guidance on how corporate counsel can prevail in the court of public opinion. Panelists included Benjamin Brafman , principal of Brafman & Associates, P.C., in Manhattan; Alison Frankel , senior writer at The American Lawyer ; Chris Gidez , senior vice president and U.S. director of Risk Management and Crisis Communication at Hill & Knowlton; Ron Kuby , criminal defense and civil rights attorney and radio talk show co-host of "Curtis and Kuby in the Morning" on WABC-AM 770 in New York City; Judge Andrew P. Napolitano , senior judicial analyst for the Fox News Channel ; Melvyn I. Weiss , senior partner of Milberg Weiss Bershad & Schulman LLP; and Scott Harshbarger , senior counsel to Proskauer Rose LLP. Moderating the panel was West author and Professor Arthur R. Miller . Full biographies of the panelists are available online at www.metrocorpcounsel.com. We take a look at the discussion during the panel and present some highlights. Please note that the transcript and the reporting from which this article was prepared have not been reviewed by the panelists. The panelists' remarks were edited and condensed by the editor.