Don't Do These 5 Things When

A Reporter Calls Seeking Comment

In my last column, I shared with you five things I hate about public statements made by attorneys or their clients about ongoing litigation. I told you I hate when attorneys or clients don't even bother to make one. I said I hate when such statements say nothing of substance. I told you I hate when statements are too long. I said I hate when statements do not "tee up" legal arguments. And finally, I explained that I hate when statements are in "legalese."

But those were only five of my 10 pet peeves about these kinds of statements. Below are five more things I hate about statements concerning ongoing litigation. When a reporter calls you about a lawsuit you are involved in, I highly recommend you avoid these five pitfalls when giving the reporter a statement about that case.

• Speak to no one in particular.

Most statements about ongoing litigation do not seem to be drafted with particular audiences in mind. They should be. When an entity's legal issues become public, certain key stakeholders may jump to conclusions about the entity and its conduct. Those people are who a statement should speak to. Is a company being sued for fraud by a client? Any public statement should be talking directly to current and future clients. Is an executive of an organization being sued for employment discrimination based on race? A public statement should be drafted with employees and clients of that same race in mind. By speaking to particular audiences, an entity can assuage concerns those audiences may have about the conduct that gave rise to the litigation at issue. Other customers want to know that there is no reason for them to be worried about being defrauded. Other employees want to know that the company does not tolerate racial discrimination. Don't draft generic, plain vanilla statements about ongoing litigation. Don't worry about speaking directly to members of the general public or potential jurors either. Public statements are going to be read by those audiences anyway. Instead, statements should be directed to key stakeholders of the entity facing legal issues.

• Make no attempt to shape the narrative of the lawsuit.

Through pleadings and other court papers, attorneys constantly attempt to shape the narrative of a lawsuit and explain why certain facts or developments in the lawsuit are good for their clients—or at least not as bad as the other side would have the judge or jury believe. And yet, those efforts are rarely extended to public statements concerning litigation. Public statements about litigation should give context or perspective to the particular development which has drawn interest from the media and the public. Did your client file a breach of contract complaint against another entity? A public statement should explain why this is a lawsuit about a company that allegedly does not keep its promises (perhaps buttressed by pointing to prior public instances of such conduct). Are you defending a client against a white-collar criminal prosecution? A public statement should explain how the allegations are simply the prosecution's side of the story, and even then, the prosecution has failed to allege that any criminal conduct occurred. Is an ex-employee's deposition transcript generating publicity because it alleges detailed misconduct? Explain that the employee last worked for the company five years ago, and the culture she described is no longer the culture of the company. Treat these public statements like opposition briefs. But instead of rebutting factual or legal arguments and distinguishing cases, place the developments in a lawsuit in a light most favorable to your client and one that is consistent with themes of your factual and legal arguments.

• Show no signs of humanity or sympathy.

In lawsuits where a sympathetic plaintiff alleges that he or she is the victim of unlawful conduct, the alleged wrongdoer should not be afraid to show sympathy when publicly defending itself. If the defendant does not, it could come across as callous and cold-hearted—which could damage its reputation, work against it when recruiting and retaining employees and bringing aboard new clients, and turn off potential jurors. Consider the case of a North Jersey law firm that was sued for discrimination in late 2016 by a legal assistant who was at the firm for 10 years. She alleged she was fired after the law firm and its partners learned about her breast cancer diagnosis. The firm's public statement about the lawsuit said that it would "vigorously defend these false allegations." There was nothing about the firm appreciating the employee's 10 years of service, nor about wishing her a speedy recovery. Not only did the firm's response suggest that it does not value the contributions of its long-time employees, the tone of the response could make its employees and prospective clients (and potential jurors, too) think "yeah, these are terrible people who are definitely the type of people who would dump a long-time employee due to health reasons." Keep your "scorched earth" rhetoric in your court papers where your readers—judges, arbitrators, and opposing counsel—probably won't think any less of you because of it. But when making public statements about litigation, remember that an ounce of humanity or sympathy may result in a pound of reputation preservation for your client.

• Make no attempt to toot a client's own horn.

One of the reasons people, businesses and organizations act the way they do during their normal course of business is so that they can build up their reputations and their goodwill with stakeholders and the public. Goodwill goes well beyond a line on a balance sheet during attempts to value an entity. Goodwill can also be treated as a reserve of positive feelings and achievements for an entity which can be drawn upon during rough times or periods of negative publicity as a way to remind stakeholders and the public that the entity should not be judged by a particular set of unfavorable factual allegations or legal claims lodged against it. Yet, many attorneys (and clients) ignore this reserve, and with it the ability to fight such fires. When responding publicly to claims of wrongdoing on the part of clients, attorneys should dip into this reserve by referencing the good things a client has done that are related to the nature of the wrongdoing. Is a client facing allegations of a gender pay gap among its employees? How about a public statement referencing the client's longstanding efforts to ensure gender equality among its workers? Is a corporation alleged to be committing systemic fraud in its billing practices? How about a public statement referencing the awards from industry groups the company has received for its compliance programs? Is a school district faced with some kind of lawsuit regarding its providing of special education services? How about a public statement citing recognition from prominent nonprofit organizations about the effectiveness of that district's services. Attorneys are no strangers to horn tooting (Have you seen an online bio for an attorney recently?). Tooting a client's own horn in public statements about litigation can help prevent reputational harm by reminding the public of all the good the client has done, and cautioning against judging the client solely by allegations of wrongdoing in a lawsuit.

• Focus on your own feelings about a development in a lawsuit instead of its impact.

In any given week, the hard-working reporters for this publication will contact a number of attorneys about rulings by judges in lawsuits the attorneys are involved in. And at least one attorney—assuming they actually return the call or email—surely will give a statement about the attorney being "pleased with the court's decision," or "gratified that the court dismissed these claims," or "disappointed that the court did not grant our motion." If you have ever given one of these kinds of statements to a reporter, sorry to break this to you: no one cares about how you feel about a development in a lawsuit. Not your client. Not the reporter. And probably, not even your family. You did, however, just waste an opportunity to make your client's case in the court of public opinion. Instead of focusing on your feelings, your statement should have focused on the impact of the development. Was your motion denied because of a novel reading of case law on punitive damages? Explain how this court decision could impact the ability for future plaintiffs to hold wrongdoers accountable for their actions. Could a court ruling open the floodgates for class actions to overwhelm our legal system? Say so in your statement. You likely already have policy arguments in mind for why your client is on the right side of the law in a particular lawsuit. Use them in your public statement. But for goodness sake, do not talk about how you feel about a judge's decision.

For a number of reasons, statements to the media about ongoing litigation come in all shapes and sizes. And based on circumstances beyond your control, you might have only minutes to draft a media statement and get your client to approve it before a media outlet publishes a story about a particular lawsuit. Some media statements will have more impact than others given the nature of the lawsuit or the nature of the development in the lawsuit that attracted media attention. No matter the situation, a strategic media statement can help you make your client's case both inside of court and out. Don't squander these opportunities by making the ten mistakes I've laid out in this column and my previous column. Your client—and your relationship with it—will be better off for it. •

Special to the Law Weekly Wayne Pollock is the founder and managing attorney of Copo Strategies in Philadelphia, a boutique law firm that helps other attorneys and clients make those clients' cases in the court of public opinion. Contact him at 215-454-2180, or @waynepollock_cs on Twitter.

Reprinted with permission from the September 5, 2017, online edition of The Legal Intelligencer/Pennsylvania Law Weekly © 2017 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

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