The Penn State Scandal: Will You Be Prepared When it Happens to You?
Miranda Sevcik, Texas Entertainment and Sports Law Journal, Spring, 2012
Armstrong Beats 60 Minutes by a Tweet: Lessons for Lawyers
Miranda Sevcik, Texas Entertainment and Sports Law Journal, Fall 2011
Controlling The Media Frenzy Around a Sensational Case: Lessons Learned
Miranda Sevcik, Texas Entertainment and Sports Law Journal, Spring 2011
Protecting Communications Made to a PR Professional
Rose Garcia Moriarty, Esq.
Winning In The Court of Public Opinion
Wade D. Moriarty, Esq. with Miranda Sevcik
Internet Marketing: Are You in Violation?
Miranda Sevcik, May 2009 Newsletter
At the end of his life, Penn State coach Joe Paterno of Happy Valley built a program based on the credo of “Success with Honor” but died under the cloud of failure with shame.
The man known as “JoePa” won 409 games and took the Nittany Lions to 37 bowl games and two national championships. More than 250 of the players he coached went on to the NFL. But in the middle of his 46th season, none of Paterno’s many victories or school contributions amounted to much when in a desperate PR-motivated decision, university trustees fired him by phone as he was getting ready for bed.
As news of Paterno’s firing spread, a riot erupted on the Penn State campus and the focus of the scandal became more about what the legendary coach didn’t do rather than Jerry Sandusky’s alleged molestation of 10 boys over a 15-year span.
Legendary status no longer protects people from media-hyped public prosecution. That’s why it is more important than ever for attorneys with clients in the limelight to understand the psychology behind press witch-hunts in order to better protect themselves and those they represent.
Paterno, and at first the top echlon of the University claimed to have been fooled by Sandusky. But outrage built quickly when the state’s top cop said the coach hadn’t fulfilled a moral obligation to go to the authorities when a graduate assistant, Mike McQueary, told Paterno he saw Sandusky with a young boy in the showers of the football complex in 2002.
At a preliminary hearing for the school officials, McQueary testified that he had seen Sandusky attacking the child with his hands around the boy’s waist but said he wasn’t 100 percent sure it was intercourse. McQueary described Paterno as shocked and saddened and said the coach told him he’d “done the right thing” by reporting the encounter.
Paterno waited a day before alerting school officials but never went to the police.
“You know, (McQueary) didn’t want to get specific,” Paterno said. “And to be frank with you I don’t know that it would have done any good, because I never heard of, of, rape and a man. So I just did what I thought was best. I talked to people that I thought would be, if there was a problem, that would be following up on it.”
When the scandal erupted in November, Paterno said he would retire following the 2011 season. He also said he was “absolutely devastated” by the abuse case.
“This is a tragedy,” he said. “It is one of the great sorrows of my life. With the benefit of hindsight, I wish I had done more.”
The Fallout of Fraud
Many of the Penn State public relations initial missteps were fueled by the way officials first begrudgingly acknowledged the scandal, which broke on Nov. 4 with word of Sandusky’s indictment.
The next day, officials added perjury and failure-to-report charges against athletic director Tim Curley and vice president Gary Schultz.
Penn State President Spanier issued a statement devoting two sentences to the scandal's core: one calling Sandusky's charges "troubling," and the other saying, "Protecting children requires the utmost vigilance." He then used the next two paragraphs to defend Curley and Schultz, who have been charged with failure to report and perjury.
The emphasis of the statement was put on defending Curley and Schultz, the alleged victims were an inconvenient afterthought. This misplaced emphasis resulted in an immediate shift in public perception from a benefit-of-the-doubt stance to a ‘they’re trying to justify their actions’ effort. The knee-jerk firing of those directly involved in the alleged incident only appeared as a last ditch effort to cover-up behavior.
When a college's reputation is damaged, obviously it can adversely affect student recruitment, alumni donations and even federal funding. Penn State is particularly vulnerable as so much if its success depends on its previously stellar reputation. In 2011, private donations totaled $235 million—among the highest of all U.S. public universities, Moody's said in a statement.
Penn State raked in $72.7 million in revenue from football last season, ranking fifth out of all college programs in the country, according to CNNMoney. In addition, the school's athletic department, took home another $24.1 million in revenue not designated to a specific team or sport -- a sum that came mostly from merchandise sales and sponsorships.
It is still unclear the full financial impact of the scandal on the University but it is conservatively estimated looming lawsuits alone will cost Penn State perhaps in the neighborhood of $70-$100 million in settlement fees. Due to the poor communications strategy, private donations are sure to suffer as is student recruitment and respect for the football program and university leadership.
By comparison, according to research by two economics professors it is estimated Tiger Wood’s fall from grace cost his corporate sponsors $12 billion in lost stock value.
Scandal is Contagious
In the initial aftermath of the Sandusky scandal, Syracuse Basketball coach Bernie Fine emerged as a made-for-TV predator complete with four alleged victims claiming the coach molested them as children.
The media seized upon the story, leading to Fine’s suspension, then firing.
To date, two of the four accusers have admitted to lying to investigators, one recanted his story and another victim’s statute of limitations precluded prosecution.
Bernie Fine is an excellent example of the bleed-over scandals tend to have for entertainment and sports attorneys. In a hyped-media environment, every media outlet fights for a fresh angle on a popular story and this can provide an audience for disgruntled individuals looking for attention. Competitors as well can use negative attention as an opportunity to raise allegations designed to hurt individuals and entities directly or even indirectly affected.
Protecting the Client From Themselves
Identifying potential problems ahead of a crisis is always the safest way to protect the reputation of an individual or entity. The first step in doing this is to perform a vulnerability audit. This introspection enables attorneys the ability to anticipate crises and to construct a crisis plan that will enable counsel to negate or, at the very least, lessen the impact of any future crisis.
Clients should collect data from people in key positions and interview key employees from the boardroom to the loading dock. Employees must be assured that their answers will be kept strictly confidential. These interviews will be even more helpful if a third party conducts them.
Information learned from these conferences should include potentially harmful trends, inconsistent answers to different questions asked of each subject, and background information suspected by employees regarding the current crisis.
A consensus opinion regarding the probability of certain crises often arises out of this process, also potential weaknesses should be examined that could cause or contribute to the crisis. These vulnerabilities might include unstable employees, insufficient communication in the chain of command if a crisis does occur and the development of actual crisis scenarios.
Had Penn State officials performed a vulnerability audit ahead of the Sandusky indictment and been proactive about what they found, the entire scandal may have been averted. Sadly the first reaction most leaders have when faced with a scandal is to bury their heads in the sand until they have to face the crisis already too big to ignore, or efficiently correct.
Attorneys should remember the ethical considerations when advising client what to say and not to say. The best rule of thumb is to have the attorney speak to what has been publicly filed and the clients speak to their heart and how they feel about the incident. Interviews should always express sympathy for the alleged victim and talk proactively about what is being done to get to the bottom of what happened.
The best defense is always a good offense. You can’t ace if you don’t serve. Sports analogies fit beautifully in any article about crisis communications because they speak to the very nature of human psychology.
The earliest start in crisis management is the safest start. It is important to immediately assemble all individuals involved in the leadership and assign one spokesperson. The spokesperson should be armed with talking points and trained how to answer any and all questions from the press. All members of the communications team must be in agreement as to these points. An entity is usually always believed when their statements are consistent and credible.
It is also vitally important in the time of social media to contain cocktail talk. Maintain an open dialogue with those involved with the company or entity. Make sure employees know what to say when their friends and neighbors ask about the crisis. Nothing breeds mistrust more than silence.
Just because the crisis is no longer front-page news, doesn’t mean its over. Scandals, like sicknesses, relapse if not treated. In Penn State’s case it means finally taking control of the communications strategy and announcing proactive measures the university is taking to make sure nothing like the alleged molestation incidents ever happens again.
At its first public meeting since the child sex-abuse scandal broke, in January, Penn State’s board of trustees adopted sweeping changes to improve safety on campus.
Throughout the meeting and at a news conference afterward, board members pledged to look at and investigate everything, including whether the board should agree to allow itself to be open to further scrutiny under the Right to Know Act.
The task force, headed by former FBI Director Louis J. Freeh, is still investigating, but the board is already instituting a proactive plan that includes providing training to employees, starting with security and athletic department workers, to be sure they comply with federal law concerning the reporting of crime and the prompt reporting of abuse allegations. The plan also recommends better practices in dealing with minors on campus, including providing clear guidelines to staff and enhancing background checks of adults who deal with children.
The university also pledged to hire a chief compliance and ethics officer.
Even before Paterno’s death the travesty of Penn State was already veering away from the countless acts of sexual abuse Sandusky allegedly committed against minors, not to mention all the indications of a cover-up by the top echelon of the university, including Paterno.
With Paterno’s demise, the media is embracing a new direction questioning whether Paterno had been treated fairly by the trustees when he was fired. The chorus grew louder, forcing board of trustee members to again go on the defensive, which is the weakest effort of a PR campaign, and talk to The New York Times and the Philadelphia Inquirer to make their case they had done the right thing.
Had Penn State’s PR department adopted a proactive communications strategy focused on the morally correct purpose the minute the scandal erupted, perhaps Joe Paterno’s legacy would have been better remembered as “Success with Honor” instead in the shadow of scandal. Don’t let this travesty happen to you or your client.
When Lance Armstrong’s teammate claimed in a 60 Minutes segment he witnessed the Tour de France legend taking performance-enhancing drugs, many journalists anticipated Armstrong’s career-ending fallout. But instead of pleading his case in front of media cameras, three days before the segment aired, Lance Armstrong tweeted: “20+ year career. 500 drug controls worldwide, in and out of competition. Never a failed test. I rest my case.”
History shows drug tests can fail to recognize performance-enhancing chemical compounds as often as athletes fail the tests. In fact, world-class track and field superstar Marion Jones passed over 160 drug tests over her 10-year career, she never tested positive. Yet on October 5, 2007, Jones pleaded guilty to lying to federal investigators about her use of the drugs, and later spent six months in prison.
Lance Armstrong turned the tables on the impending media allegation with a preemptive strike. The result, Armstrong’s tweet took the air out of his teammate’s allegation and the 60 Minutes episode fell flat.
As an attorney representing a client faced with the dilemma of “no comment” versus shout-it-from-the-rooftops innocence declarations, which is the safest bet? Particularly when there is a chance a client’s statement could be contradicted by fact later?
Thankfully, social media has offered new Internet avenues that didn’t exist five years ago. These social media tools help attorneys in court and in the court of public opinion, if lawyers plays by the rules.
Tangling Through Twitter
Celebrities, businessmen, and God knows, politicians love to share on Twitter. Maybe it's the gladiator ego, the fawning fans, or the greedy desire for more “followers”. Probably, it’s a bit of all three. Many attorneys agree most of their high profile clients should just give up their accounts altogether, particularly the sports stars.
Major league football, basketball and hockey have all banned players from using social media before and during the game. Some of the shutdown comes from worries tweets from a game in progress may affect the outcome or aid sports gaming interests. But even with these bans, the leagues have fined many players whose verbal or digital outbursts step over the line.
Included in the most recent Tweet fines:
- Minnesota Vikings quarterback Brett Favre, $50,000 for "sexting."
- NASCAR driver Denny Hamlin, reportedly $50,000 for a tweet rant.
- Dallas Mavericks owner Mark Cuban fined $25,000 for protesting a referee's call on his Twitter account.
The most expensive sports tweet goes to Larry Johnson, former Kansas City Chiefs running back, who was suspended one game, at a cost of $213,000, for gay slurs he directed at a Twitter heckler.
Businesses understand the many dangers posed by Twitter and take the threat very seriously. Recently The New York Times published a story claiming that thanks to a series of loopholes GE pays nothing in taxes. The story said: “[GE's] American tax bill? None.”
GE immediately issued a statement saying the allegation wasn’t true—and took to Twitter to make its point.
The GE Public Affairs Twitter account released a number of aggressively worded tweets telling journalists to stop repeating the Times’s claims and insisting the paper was wrong. Strangely, reports indicated GE didn’t ask the Times for a correction.)
Here is an example:
@Jwesty5 Claiming that GE's American tax bill is "none" is simply not true. GE pays payroll, property, sales use & value added taxes, etc. GE Public Affairs
GE even sent The Business Insider (TBI) messages, one of which said: “Stop the misleading attacks.”
Ultimately the website conceded in the assault and allowed GE to give its side. GE made it a priority to spin their side because they understood the danger of a one-sided tax evasion allegation out on the Internet for the world to see.
“The ethical rules set forth by the State Bar still apply, they don’t change based on social media,”says state District Judge Susan Criss.
Judge Criss presided over the sensational murder trial of Robert Durst in 2002. The Durst high profile case made national and international headlines. Criss says lawyers can best serve their clients by understanding the basic ethical guidelines found in the Texas Disciplinary Rules of Professional Conduct, especially Texas Rule 3.07.6, but lawyers also have to understand the reputation-protection needs of their well-known clients.
“With high profile clients (lawyers) need to understand their name is their business brand. It’s not just litigation but the public image of a company. But anything they write could come back to haunt them. High profile clients are more comfortable dealing with their public image, but they don’t understand these comments can telegraph to the other side what their case is and hurt them in court later on.”
If an attorney is tweeting for a client or advising a client on what to say about an impending legal issue, Judge Criss says the safest rule of thumb is to have attorneys speak to what has been publicly filed and allow the client to speak to their personal feelings on the matter.
A proper chain of communication allows the legal media team to hold true to the critical ingredients of a social media campaign, credible, consistent and controlled messaging.
The You Tube Pulpit
“I want to thank all of my patients and friends who have sent such kind emails, letters and messages to let me know of your support and prayers for me and my family…” said Dr. Conrad Murray in a videotaped statement release on You Tube 8 weeks after the death of Michael Jackson.
“We really had to get something out there. In the beginning, Dr. Murray was being vilified on an hourly basis. The TV stations were camped out in his neighborhood just to get a tiny snippet of shadowy video. Dr. Murray had ceased to be a human being, and had turned into some kind of prey,” says lead defense attorney Ed Chernoff.
As my firm, Media Masters, worked with Dr. Murray’s lawyers during these early days, we witnessed first-hand the ballooning media interest and money at stake for the first images of the doctor suspected in the death of the King of Pop.
Tammy Kidd, media consultant with Media Masters took hours of daily calls from the media and Murray’s patients asking about the truth to rumors Murray was suicidal, dead or had skipped town.
“It just got to be ridiculous. Media outlets would buy into some rumor going around that Dr. Murray had fled the country, or killed himself. Then they’d publish it as fact on a blog somewhere and the phone would start ringing off the hook. We knew we had to do something to assure his patients he was okay and convince the world Dr. Murray was a real live human being, not some shadowy figure hiding out of guilt.”
Ed Chernoff remembers the desperate hours and days following the release of the Murray video. Amazingly, after posting the clip on You Tube it only took 10 minutes for the first reporter to find it and call for confirmation.
“Am I seeing who I think I’m seeing?” questioned a Las Vegas reporter in the first phone call to us.
“The result was tough to handle at first,” says Chernoff. “A bunch of legal 'consultants' got on TV to blast our method of using YouTube. But soon thereafter we observed a sea change in the coverage. I'm not saying the presumption of innocence predominated the coverage, but the pressure was relieved. Everybody stopped insinuating that Dr. Murray was hiding out in the woods to escape the hang man.”
Psychologists say there is something about human nature that makes us want to feel compassion for an individual asking for it directly.
“Thanking people for prayers and support in a general sense is fine. As long as the client is not talking about the specific facts of the case,” says Judge Susan Criss.
“State-specific rules matter, but if the client makes the statement, ‘I’m not guilty, we believe the evidence will support that and the system will work’ I can say that I would not have a problem with that.”
A simple videotaped statement from a client expressing thanks and concern with a plea for patience, peace and any other appropriate emotion is a perfect way to start leveling the often-unfair media playing field.
A well-produced video with a simple background, short message that doesn’t delve into the facts of the case and includes a plea for understanding and prayers is usually the safest bet.
The video can then be posted to You Tube, the client’s website, the pressroom website, included in a statement to the media and distributed among family, friends and supporters for a from-the-horse’s-mouth unfiltered public statement.
Loose Lips Sink Ships Online Personal Profiles
Thanks to Facebook, Linkedin and a myriad of other social networking sites, the dangers of cocktail talk are especially pronounced now that seemingly everyone is sharing so much of their personal lives online. Personal details ranging from what was for breakfast to what’s happening at work are updated sometimes minute by minute. And it can be almost irresistible to share details that seem innocent if you have inside information on a case in the news.
Studies from Forrester, Pew Research and the Altimeter Group have shown how important the trend for sharing content is PRESSfeed, the social media newsroom studied the websites of U.S. companies and found 34 percent of Fortune 100 companies have share buttons on their website.
“(Social networking) has made it much harder for judges to be more diligent about what jurors are exposed to. I’ve revised my instructions to the jurors seven times. As soon as they walk in the room, no devices are allowed,” says Judge Criss.
“These jurors could be Googling, or Twittering. You have to make sure they’re not getting into or putting out there too much information. It is such a cultural thing now to share everything I have to threaten them more with contempt. In the Casey Anthony trial a juror even hired a publicist to sell their interview right after the verdict.”
The best way to ensure against information being shared that shouldn’t is also the simplest among the legal team. Keep the lines of communication open at all times.
As the attorney, its safest to NEVER assume the client, the legal team or individuals surrounding the client know what should and should not be shared. This step seems elementary but it is almost always the first step skipped when the pressure of a high stress case hits the news.
Establish on a weekly or even daily (if need be) basis what can and can’t be said among the team. Develop talking points that can be communicated in accordance with the restrictions of the litigation timeline and strategy. Make crystal clear particularly with the team spokesperson what cannot be shared. Have the client encourage those around them to share these messaging points as well.
Remember that a consistent, repeated message is likely to resonate in the minds of the public.
Keeping up with online chatter about a client or case can be a full time job, but thankfully Google has introduced a tool that helps manage search results for names and other keywords better than ever before.
The tool, “Me on the Web,” is now included on the Google dashboard in between account information and analytics. “Your online identity is determined not only by what you post, but also by what others post about you — whether a mention in a blog post, a photo tag or a reply to a public status update,” Google explains.
The new dashboard section encourages the user to keep tabs on these mentions by setting up search alerts for data points included in their Google profile, like name and email address.
Google’s new tool also includes links to resources about managing online identity and removing unwanted content.
Through the use of this powerful, yet free tool, diligent attorneys can now track, and protect a case and client’s reputation better than ever before.
The World Wide Web can make or break a client’s future long before the judge’s final gavel has dropped. There is no reset button for a tarnished reputation, but by taking steps ahead of time to protect what you can, lawyers can help ensure a client has a life to return to after their day in court.
About The Author: Miranda Sevcik is a former television journalist and current principal of Media Masters, a Houston- based litigation communications and legal PR firm that caters exclusively to lawyers and legal professionals. Miranda worked with defense attorney Ed Chernoff as the media liaison and spokesperson for the defense of Dr. Conrad Murray. http://www.mediamastersonline.net
A family physician blamed for the death of the King of pop, a little boy from a fame-craving family in an escaped balloon, a seemingly perfect sports star caught up in the most imperfect of sex scandals. Much has been said about the public's fascination with digesting every last tidbit of these stories. Will the outcome of these events affect the average person's day-to-day lifestyle? Of course not, but the public is voracious and the media beast must be fed.
High profile public castigation is attributed by some sociologists to schadenfreude, or deriving joy from watching another person's suffering. An individual once-revered brought down to size seems to be irresistible to most people. In a country beset by so many economic, environmental, and social problems, convicting people of misdeeds in the public arena almost equates to a vacation from one's own problems; a chance to say, 'My life isn't all I want it to be, but at least I'm not THAT guy."
Whatever it is that compels us to devour every last morsel of a high profile person's misfortune, often the event lands in the legal arena. A ruling in the court of public opinion can be just as important as a ruling in the court of law because it's a person's reputation and therefore future that's at stake.
Questions equal suspicion in the media world. Inconsistent answers feed the flame of guilt. A central figure with a background of shameless self-promotion and an inability to take responsibility is pretty much the nail in the coffin of sentencing in the court of public opinion. In the balloon boy family's case, that inconsistency was only the beginning of their problems.
Balloon Boy Saga Goes Bust
A Larry King producer spoke of the surreal atmosphere she experienced as she was sitting in the living room of the family home waiting to get them on air for her show. This was of course, the infamous interview when Falcon Heene spilled the beans that the stunt was "for the show". The producer said she was amazed at the media's jackal-like attack of the Heenes. "I know it's so ironic," she admitted. "I mean, I know these journalists, we see each other all the time at these things but it seemed in this case, because there was no lawyer or PR person to create a buffer between us and them, it was out of control, like a feeding frenzy."
The producer admitted morning show producers were arguing with each other, jockeying for which media outlet would get the first interview with the family the next day. Reporters were refusing to leave the Heene home for fear they wouldn't be let back in. A neighbor friend was charged with guarding the Heene front door to keep out the curious. Her story reminded me of the first fatal mistake many individuals make when faced with a high-profile case: inattention to control.
Tiger's SUV Wasn't The Only Thing Destroyed
Inattention to control revealed itself in the case of Tiger Woods as well. When his fender bender/golf club accident was initially reported, Woods blasted the media by saying through a statement on his website; "Although I understand there is curiosity, the many false, unfounded and malicious rumors that are currently circulating about my family and me are irresponsible."
The next day when it was made public an alleged mistress of Tiger's had sold a voicemail she received from the golf great begging her to erase her name from his phone, Woods released a contradictory statement.
"I have let my family down and I regret those transgressions with all of my heart. I have not been true to my values and the behavior my family deserves. I am not without faults and I am far short of perfect. I am dealing with my behavior and personal failings behind closed doors with my family."
In the statement's entirety Tiger shared one small paragraph admitting culpability and then another 4 paragraphs admonishing the public for being interested in a scandal that he himself created. According to US Weekly, the first tabloid magazine to get the scoop from one of Tiger's alleged mistresses, Woods' agent did not return calls from the magazine about the alleged affair for a week and a half. Obviously Team Tiger didn't feel prioritizing public image was important. As a result it is estimated in a recent UC Davis study that shareholders of major companies that sponsor Tiger Woods have probably lost a collective $5 to $12 billion because of the golf great's handling of his marital mess. Accenture, which was the first company to swiftly dump Woods as a spokesman didn't seem to lose any money at all.
Old School Law and New School Media
In the old days of litigation public relations the stock response to any query from a reporter about ongoing cases was simply, 'we don't comment on current litigation', or the lofty answer that 'we aren't going to try this case in the court of public opinion'. These days traditional media: TV, radio, newspaper and non-traditional media: bloggers, online magazines, and social networking websites tend to bleed their influence over into the courtroom. It's the ultimate reality show, tragic, compelling and best of all, cheap to produce.
Good litigation public relations involves tools that help ensure control, strategy and relationships. The basic ingredient for all three is covering the bases with a lot of prep work.
Michael and Murray Mania
In a media feeding frenzy it's important to control what you can as soon as you can, and that starts with the spokesperson. After Michael Jackson died, the media seized on the idea that a single person was responsible, and that person was the doctor with him at the time of his death. Almost immediately the media began calling Dr. Conrad Murray, Dr. Demerol. That moniker, no matter how inaccurate, is an example of what can stick to a defendant indefinitely if there is no opposing view presented in the first 48 hours. In this case the legal team decided it was imperative to choose one person to talk about what could be said, namely, that Dr. Murray never gave Michael Jackson Demerol.
Houston criminal defense attorney Ed Chernoff appeared on Dateline in the hours after the initial police interview and then the following Monday spoke on as many news programs as he could to level the playing field as much as he could for his client. To prepare Chernoff for this feat, the team anticipated questions and grilled him ahead of time with any possible questions that could come up. We also armed him with messaging points to stick to during the interview.
Anticipation of what could possibly be revealed in an upcoming interview is achieved through a vulnerability audit of the client. Asking the client, 'What could possibly come up in the course of this media campaign we will have to answer to?' and planning a response in an excellent method of maintaining control. It also helps to restrict interviews to one reporter at a time- avoiding press conferences at all costs as they are impossible to control. This is a simple fact that is easily forgotten in the thick of battle- choosing to grant interviews needs to be based on what is best for the client's purposes, not the media's. If it won't benefit the client to talk on camera, distribute a written or taped statement instead.
Establishing boundaries is the first job. Restricting interviews, access and yet at the same time sharing information as it relates to the case and issue at hand via an online pressroom is very effective. Strategizing what will be said begins by choosing three themes and speaking to only those themes. These messaging points should be agreed-upon by the legal team and client as well. The themes may change depending on the stage of the litigation or developments in the story being dealt with. Often court cases only make headlines three times in their life cycle; when the suit is filed, when the trial begins and when the decision is reached.
Cherry-pick the outlets considered the most friendly and sympathetic and grant them an interview ONLY when there is something tangible to say and it clearly benefits the client to say it.
Using You Tube and Online Tools
Establishing a good online pressroom is a great way to disseminate information.
Pressrooms put control in the hands of the proper player. Be sure to include information on the pressroom that is useful and correct. Do not embellish or exclude pertinent information that can be shared. A well-organized pressroom can be an invaluable resource for a journalist as it is available to them for fact-checking 24 hours a day.
A good pressroom should include biographical information on the client and the lawyers, the names and numbers of current friends and family available for interviews, a frequently asked questions page, all press releases, and a photo gallery if needed. On every page should be a contact name and number for additional questions. The pressroom created for Dr. Conrad Murray is a good example of an effective but no-frills website.
According to new research the number one reason people visit the Internet is to watch a video. The beauty of this for attorneys is, they don't have to rely on a traditional media outlet to pick up the news story of a case. If a self-produced video benefits the client attorneys should create one and post it on You Tube. In the Dr. Conrad Murray case, we produced a short two-minute video of the doctor thanking his supporters and friends. This video took the pressure off the doctor and his family for the first images of the man accused of killing Michael Jackson. It also presented to the public the image of a real person, not some shadowy figure hiding from suspicion.
Attorneys can also use You Tube to share information about a case they are currently working on to benefit the audience. This video about a recall of Triad alcohol prep pads helped to educate the public about the issue in a way that doesn't run afoul of State Bar Advertising Review rules because it is presented as editorial opinion absent of a call for business.
Making Friends With The Media
Good mutually beneficial relationships with the media are essential for a positive outcome. Respecting a reporter's deadline goes a long way. If it has been promised to answer a reporter's questions, follow through with the interview on time. Return all phone calls even if the answers to be given are limited.
Information follow-up and interview organization is one of the most neglected and yet important aspects of media relations. When it is impossible to answer all media questions make sure to explain why and follow-up with an offer to share the information later when possible. On the flipside, if a reporter or media outlet continually misquotes a spokesperson or prints information either blatantly wrong, or over-blown do not feel compelled to reciprocate with future interviews or information.
Finally- never forget the end game. Any future litigation action could be jeopardized by media communication decisions made today. The media tends to believe a story that doesn't change. Keep the team's messaging consistent, immediate and proactive and the court of public opinion has a very good chance of ruling in your client's favor.
About The Author: Miranda Sevcik is a former television journalist and current principal of Media Masters, a Houston-based litigation communications and legal PR firm that caters exclusively to lawyers and legal professionals.
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Running from the media when they come calling is the worst thing you can do. A no comment or failure to return a phone call is viewed by the public as an admission of guilt or wrong-doing. We all know how brutal the public is and a PR agency can really help you maneuver through the media circus. Just be sure you do everything you can to ensure that any and all communications with a PR consultant are protected. This paper will help you do just that by examining relevant case law.
In United States v. Kovel, 296 F.2d 918 (2d Cir. 1961), the Second Circuit extended the attorney-client privilege to communications in the presence of a third party. In Kovel, the third party was an accountant. Since this case, courts have issued varying opinions in applying waiver principles to other third parties, including public relations consultants. One of the main things that courts look at when ruling on whether this privilege extends to public relations consultants, is the scope of the consultants' duties. More specifically, is there a nexus between the PR consultant's function and the obtaining of legal advice.
In the case of In re Copper Market Antitrust Litigation, 200 F.R.D. 213 (S.D.N.Y. 2000), a Tokyo-based corporation hired a crisis management firm to handle publicity from allegations of price fixing in copper trading. The PR firm drafted documents informing the corporate employees of what they could or could not say, prepared press releases, prepared talking points and consulted frequently with outside counsel regarding the contents of its work. Not surprisingly, the plaintiffs served subpoenas seeking production of any and all documents related to the PR firm's representation of the Tokyo-based Corporation that had anything to do with the allegations concerning the price fixing of copper.
The district court found that the PR firm was essentially integrated into the corporate structure and characterized the firm's role as analogous to an in-house public relations department, or an employee, and thus found no reason to distinguish its communications from those of employees on the payroll. The court further found that the PR firm's communications were made for the purpose of obtaining legal advice from outside and in-house counsel.
The court also held that the PR firm's communications were also protected by the work product doctrine, explaining that it was the PR firm's purpose and goal to ensure that the corporate client's public statements would not result in additional exposure to liability. The court reasoned that this goal of protecting the Corporation from additional liability illustrated that the PR firm was instrumental in formulating and enforcing the litigation strategy of the corporation.
Another case dealing with this issue is In re Grand Jury Subpoenas, 265 F.Supp.2d 321 (S.D.N.Y.) 2003. In this case, domestic diva Martha Stewart's attorneys hired a PR firm "out of concern that unbalanced and often inaccurate press reports about [Stewart] created a clear risk that the prosecutors and regulators conducting the various investigations would feel public pressure to bring some kind of charge against her." Not surprisingly, the government served a subpoena duces tecum seeking documents from the firm regarding their representation of Ms. Stewart.
The court found that each communication, in order to sustain the attorney client privilege objection, must satisfy each of the following criteria in order to be protected. These criteria are: (1) a confidential communication (2) between lawyers and public relations consultants (3) hired by the lawyers to assist them in dealing with the media (4) that are made for the purpose of giving or receiving advice and (5) directed at handling the client's legal problem.
The court noted that the above standard was not satisfied solely because the lawyer, and not the client, hired the consulting firm. Instead, of greater importance, is the court's analysis of whether the PR firm's presence was necessary for the lawyer to provide legal service. Stewarts' lawyers cleverly argued that their litigation strategy hinged on the ability to neutralize the negative opinion which was influencing prosecutors and regulators to act in ways adverse to Stewart's interest. In short, the attorneys believed that the negative press was driving the government to issue charges against Stewart. The lawyers needed to neutralize this negative public opinion and could not do so alone.
In Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53 (S.D.N.Y. 2000), the plaintiff hired a PR firm in anticipation of litigation. The defendant sought to discover the work of the PR firm. The plaintiff asserted that the information was protected, arguing that the PR firm's purpose was not only to manage the media, but was also to provide legal advice. The court did not buy this argument. After reviewing the documents, the court stated that while communications between the lawyer and the PR firm may have assisted the lawyer in formulating legal advice, the main role of the PR firm was to provide "ordinary public relations advice" such as monitoring press coverage, interacting with and responding to the media, and seeking out friendly reporters. As such the court concluded that none of the documents were protected by the attorney-client privilege.
However, the court did extend the work-product doctrine to some of the documents, recognizing as valid the argument that the PR firm needed to know the litigation strategy in order to come up with a targeted media plan. That the media plan influenced decisions made by legal counsel was a winning argument.
In a more recent case, NXIVM Corp v. O'Hara, 241 F.R.D. 109 (N.D.N.Y. 2007), plaintiff's outside counsel hired a PR firm to provide "litigation supported public relations services" to diffuse negative publicity from a copyright suit filed by the company. The court, using a narrow interpretation of the privilege, stated that the PR firm was nothing more than a "facade" designed to give cover to communications between the consulting firm and the plaintiff. The court went on to state that the PR firm did not facilitate legal advice. The court also did not extend the work product doctrine to the communications, stating that the communications were designed to advance a media strategy against the defendant, not to assist the lawyers in litigation.
After analyzing these cases, it's clear that while the attorney-client privilege is narrowly construed, the work product doctrine is more broad. These cases also illustrate that it's not enough to argue that communication with the PR professional is important to the defense of the action. As seen from the above case law, providing ordinary public relations advice and performing ordinary public relations functions will more than likely waive the privilege. It is also apparent that the only real winning argument here to protect the relationship with the PR professional is to show the court that any and all communications with the PR firm directly impacts the direction and effectiveness of the attorney and the litigation strategy.
Practically speaking, after a review of this applicable law, what can you do as a legal professional to protect communications with your PR consultant? Since providing ordinary public relations services do not protect communications, it's crucial that the purpose for hiring the PR professional is to obtain advice for the purpose of crafting and or modifying a litigation strategy. This purpose should be documented and expressed to the client. The attorney must be ready to show that their legal strategy depends and is impacted by the media strategy; one influences the other and both are designed to legally protect the client.
It is also extremely beneficial if the PR professional is an attorney and/or that the PR firm either focuses exclusively on litigation matters or has a litigation department. In addition, it helps that the PR professional is hired by counsel and not the client and that all communications made are in the presence of counsel or occur at counsels' instruction.
Now that these principles are understood, you can call on a media professional with confidence. With a high –profile case, the PR professional's expertise can really help protect your client.
About The Author: Rose Garcia Moriarty is an attorney and associate at Media Masters, a Houston-based litigation communications and legal PR firm that caters exclusively to attorneys and law firms. She can be contacted at firstname.lastname@example.org.
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Wikipedia is a very important tool in a tech-savvy legal marketers' arsenal. Web technologies like RSS from blogs, wikis, forums, and other kinds of channels into feed-enabled portals create buzz about an attorney or law firm.
Wikipedia has massive traffic volume and considerable influence in search engine results. The site also tends to attract a tech-savvy audience that researches RSS and other Web 2.0 technologies. Presented carefully, a strong presence for a law firm with relevant Wikipedia entries can help drive traffic to a firm's website. In the ever-expanding world of social computing, it makes sense for firms and attorneys to take the plunge into Wikipedia, but it is just as important to learn the rules of the game first.
When creating the firm or attorney page, first check the state bar's rules for the filing requirements for public advertising and written, recorded, electronic or other digital solicitations. In Texas, all attorney advertising must be submitted to the Advertising Review Department before it can be published. However, since Wikipedia entries are assumed written by a neutral third-party, the pages don't technically fall into the "advertising" category.
Here is the official word from the Texas State Bar Advertising Review Department Director Gene Major: "Read the Texas Disciplinary Rules for Professional Conduct. Rule 7.07(e) lists the type of exemptions the Bar allows without submission for approval from us. These exemptions include publicly available information about the attorney or law firm, business card-type information about practice areas, firm website and information concerning legal issues, such as news articles, legal articles, editorial opinions, or other legal developments or events."
Before constructing the framework for the Wikipedia page, the best advice is to list everything planned for the page, then read the individual state bar's exemptions rule on filing requirements and make sure nothing on the Wikipedia list contradicts the state bar rule.
Wikipedia's strict content guidelines must also be addressed and understood thoroughly. Wikipedia's editors are basically anyone who owns a computer, and they can be merciless. Wikipedia defines itself as: an encyclopedia, not a forum for advertising or self-promotion, or a vanity press. As such, it should contain only material that complies with its content policies, and Wikipedians must place the interests of the encyclopedia first. Any editor who gives priority to outside interests may be subject to a conflict of interest.
There are no firm criteria to determine whether a conflict of interest exists, but there are warning signs. Adding material that appears to promote the inter