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Below are excerpts from the Lawyers & Lawsuits chapter of
Winning with the News Media
2005 Edition
Copyright © 2005, 2001, 1999, 1996
By Clarence Jones
Lawyers & Lawsuits
In a Media Crisis, Your
Lawyer Will Be Wrong
When you get to work and find the 60 Minutes crew waiting in your reception area, you know it’s going to be a bad day. The first thing many executives do is call their lawyer. Particularly if they know a lawsuit has been filed — or is about to be filed. Some don’t even bother to call the attorney. They’ve been conditioned to believe that lawsuits automatically mean "no comment."
WRONG.
If you take news media problems to an attorney, you’ll usually get bad advice. My presentation at a symposium sponsored by the American Bar Association was titled: "In a Media Crisis, Conventional Wisdom, Your Reflexes, and Your Lawyer Will Always Be Wrong."
Lawyers Don't Understand
You need to call your lawyer for LEGAL advice. But not for advice about dealing with the news media. All over America, executives in both government and industry have abdicated. In any kind of crunch, they hand over their power to their attorneys. They ask them what to do, and then do it religiously. Even when their high-priced media consultants are telling them to do something entirely different.
Most lawyers do not understand the news media game. This is a different arena. A lawyer’s training and experience — the instincts developed in the courtroom — will often lead to disaster in the media. By following the attorney’s advice, you will probably lose the media battle, and perhaps the war.
And/or the corporation. And/or your job.
You need to hear the attorney’s assessment of the legal problems you may create by talking to a reporter. PLUS the opinion of a skilled, experienced media consultant. THEN you carefully weigh all the risks and benefits in both arenas.
In many cases, critical media coverage will do much more damage to your organization than a jury’s verdict. Even if that verdict costs you millions of dollars. Bad media stories can destroy employee morale and productivity, turn customers away, depress stock prices, and influence future jurors who will go into court already prejudiced against you.
I maintain that it is your job as an executive to listen to both your lawyer and your media consultant, then decide what to do. It is your job and your responsibility to make the final decision, not your lawyer’s.
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The chapter continues with an explanation of why the standard lawyer's advice is to say, "no comment" and why that can be extremely damaging in a news story (it also violates one of my Ten Commandments of Media Relations); the widespread belief that litigants cannot comment on a pending lawsuit (NOT TRUE), and then explains why lawyers give bad media advice.
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Why Do Lawyers Avoid the Media?
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They don’t understand the media, and have few media skills or instincts. They don’t want to mess around in an area where they are so incompetent and inexperienced. They don’t want to show their lack of expertise. |
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They live and work in an isolated, insulated system. The legal system has a long history of elitism, dating back to its foundation in England. American lawyers do not wear robes and wigs, as British barristers do. But once they are admitted to the Bar, they are members of a private club where commoners are not allowed. Attorneys get their strokes, recognition and prestige from fellow lawyers who judge them by what happens inside the legal system. |
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In the legal system, there are very rigid rules. The lawyer who best knows the rules and how to manipulate them often wins. The legal system is based on precedent and history. There are written, predetermined guidelines for almost everything. The media have very few rules, and those that do exist are constantly changing. The precedent that drives today’s news decision is whatever the competition did yesterday. |
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Reputable attorneys are ashamed of some of their colleagues who use the media to advertise their practice. The headline hunters are more interested in getting their names out to the public than in serving the best interest of their clients. Some very good, successful lawyers are so offended by their ambulance-chasing colleagues, they avoid doing anything that would even suggest that they are seeking publicity. |
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Some lawyers truly believe it is unethical to talk to the news media. They cite sections of the Canons of Ethics that are designed to protect the right to a fair trial. But there is also a Canon that says ethical lawyers must represent the best interest of their clients. To act as if the news media do not exist, I maintain, is often not in the best interest of a client. |
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The chapter continues with an analysis how lawyers' drive to win in court blinds them to winning in other arenas; the practice of NEVER admitting fault in a lawsuit that conflicts with one of my Ten Commandments of Media Relations; examples of how talking to a reporter can often kill a bad story before it's ever written; recent events which illustrate these points; the similarities between jurors and the media audience; how overly aggressive lawyers can poison the media well; the media's almost complete legal protection from printing or broadcasting untrue allegations, so long as they're part of a court record; attorneys' instinct to hold information until the last minute and how that leads to bad news stories; their reflex that says they can always appeal if they lose at this stage (not true for media judgments). It gives advice on choosing a public relations expert and then concludes:
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The CEO’s Bias
The CEO carries a bias from personal experience. The CEO socializes with lawyers; plays golf with them; respects their wisdom, skill and loyalty; has invested a lot of money in them. They have walked through a lot of fires together, and emerged victorious. Perhaps built the company together.
Most CEOs have a lot more experience with lawyers than with reporters. When the media fire breaks out, that past experience can lead the CEO to quickly accept the lawyers’ advice, and dismiss the counsel of the public relations expert.
That decision may put the organization in great peril. It is a difficult balancing act. It is easy to turn everything over to the lawyers. It is hard to hear both sides, and then make the tough decisions.
But that’s what bosses are paid to do.