NATIONWIDE: An Introduction to Litigation: Trial Lawyers

Conducting Litigation in the Court of Public Opinion

By Rusty Hardin

When considering the interests of the media or the public, many attorneys cling to the belief that “no comment” is always the best response and that “we’re not going to try our case in the press” is the mantra to apply, regardless of the circumstances.

But with the evolution of the news media paired with the increasingly dominant influence of social media, those old-school, no-risk strategies may actually do the client and case a disservice.

Today, a trial lawyer’s duty to corporate clients of all sizes must include assessing the role of public opinion on a company’s brand and business operations and being prepared to offer counsel in responding to adverse or inaccurate publicity — whether online, in print, on broadcast channels or on social media. The need for counsel on these matters also applies to individual clients. While individuals generally do not have as high a profile as corporations, most have a substantial online network of associates, friends and followers, and helping them manage a personal reputation while in litigation can be as crucial as managing a corporate reputation.

During my more than 40 years in private practice, our firm has represented numerous high-profile individuals from the often-overlapping worlds of business and sports. In those cases, we have managed the interests of our clients in the face of intense scrutiny and adapted to the evolving realities of a diverse media environment. In this role, I’ve learned some valuable lessons.

In effectively representing your client, you may be forced to deal with more than just the law, the evidence and the claims in the case. You have to be thinking about how you can help rehabilitate or protect your client’s public reputation without violating ethical standards for pretrial publicity or damaging a relationship with the trial court. But you must take advantage of opportunities to move the public back to the middle so that, in jury selection, you can find some people who are still going to be fair and have an open mind.

I’ve observed that journalists, like most people, will return respect and trust if treated with respect and trust. As I have said in many forums, in my entire career, I have never been misquoted. I like to think that this is partly because I always try to return a reporter’s calls, I always tell them the truth, and when I cannot talk to them about my case, I try to explain why off the record. Now, I have been quoted saying things I wished I had not said, but I did say them and never asked that they be off the record. It’s a cardinal mistake if one fails to get an understanding with the journalist about what is and is not on and off the record. These rules do not apply to social media because social media and blogs have no rules. In those circumstances, you will have to be much more selective about whom you talk to and what you say. I have also recognized that, in certain instances, providing some context or explanation as to why a substantive comment can’t be offered is the best approach. By doing so, you avoid ignoring the request or delivering the damning “no comment.” That approach reduces the reporter’s urge to speculate or report information beyond the facts and the details of the case.

By now, most Bar associations have conceded the propriety of a lawyer’s involvement in managing media relations, with rules of professional conduct that provide standards for behavior that are specifically related to trial publicity (See, for example, Texas State Bar Rules of Professional Conduct 3.07, 4.01, and 4.07). Courts, however, have struggled to precisely define a lawyer’s duty in the context of statements made to the media and outside the strict confines of a judicial proceeding.

In May 2021, the Texas Supreme Court considered whether the doctrines of judicial-proceeding privilege and attorney immunity protected a lawyer from a suit for defamation stemming from reciting allegations against an opposing party to the press (Landry’s and Houston Aquarium v. Animal League Defense Fund, et al., Texas S.Ct. No 19-0036, May 21, 2021). The Court pronounced that “attorneys who make [allegedly defamatory publicity] statements outside a judicial proceeding have many potential defenses to defamation liability, but the judicial-proceedings privilege and attorney immunity are not among them.”

While a strict interpretation of the Landry’s opinion holds that publicizing a client’s allegations via the media is not the sort of “lawyerly conduct” protected by immunity, its tone acknowledges the inevitability that a lawyer can and will engage with the media in the best interests of the client. I strongly believe that today’s trial lawyer has an obligation to defend the client’s reputation with public pronouncements as long as they comport with the ethical rules. A no-liability finding after a trial in the absence of a public defense before trial is all too often simply too late.

In your role as advocate, recognize that your case may benefit from aligning trial strategy with media strategy in light of the sway that the unpredictable venue of public opinion holds over business activities, prosecutorial discretion and the attitudes of the typical juror. But be aware that unlike the editorial oversight provided by traditional news organizations, social media has little — if any — such governance. The possibility of widespread dissemination of damaging information on these platforms with few or no checks on accuracy presents new obligations for lawyers.

By its very definition, social media is viral. Posts can be rapidly shared without the time or opportunity to get in front of a story and most favorably frame the facts. Before the rise of social media, if information or allegations from opposing counsel were made at nine in the morning, you had the luxury of waiting almost an entire day in the news cycle to discuss strategy, prepare answers and conduct any interviews. Both sides could then be presented in the resulting broadcast that evening, and that balanced story with input from both sides wouldn’t even be in print until the following day.

Obviously, that’s no longer the case. Now if you wait a day to respond, you will likely be so far behind the adverse public perception that you may never catch up. Only the views of the opposition will be ingrained in the mind of the public, or perhaps more importantly, the mind of the jury pool.

These dynamics require attorneys on both sides of the aisle to have access to systematic monitoring of social media and a mandate to respond appropriately in real time. I would also stress that attorneys should not abdicate the oversight and implementation role in this effort. Even well-meaning corporate communicators cannot necessarily be expected to grasp the nuances and potential effects of their work in responding to litigation and they may do more harm than good without coordination from the legal team.

These personal observations encompass some active and vexing issues for the law, the courts and the legal profession. However, in the current climate, there is no doubt that whether your focus is civil or criminal law, or whether you are primarily representing plaintiffs or defendants, a trial lawyer’s obligations to clients extend beyond the courthouse to include the court of public opinion. Unfortunately, if you lose the battle in the court of public opinion, your client’s victory in the court of law may well be too late.

Rusty Hardin is the founder of Rusty Hardin & Associates in Houston. The firm represents clients in civil and criminal litigation across the United States.