08 April 2011

In the court of public opinion (repost from The Persuasion Business)

These originally appeared in two parts on July 23 and July 24, 2007 at The Persuasion Business.

Part One

You don't have to be Conrad Black or Brian Mulroney to find yourself facing a legal battle and at the same time face a battle over your reputation in the court of public opinion.

Cases involving large companies, alleged injuries to members of the public, alleged wrongdoing by politicians or other prominent people usually attract news media attention. It's true in Chicago with Conrad Black and Los Angeles with OJ, Paris Hilton or the latest flavour of the moment.

Yet, it is equally true even in a relatively small place like Newfoundland and Labrador. Max Ruelokke, currently the head of the offshore regulatory board, found himself speaking with reporters on a legal action to resolve a dispute over his appointment to the job he currently holds. Ruelokke, a senior executive in the private sector and former public servant likely never expected to find himself at the centre of a political controversy but that's where he wound up.

These days, though, any case is liable to make the news. Even in appeals courts, cases that would normally draw yawns have earned news coverage either because there was something peculiar about the subject matter - a bizarre constitutional challenge on a fisheries violation, for example - or because one of the lawyers was particularly colourful in his arguments before the court.

Parties involved in a court proceeding - especially one that is likely to make news - must deal with the court of public opinion just as they deal with legal aspects of whatever matter they may face in a court of law. Reputations are at stake and as several high-profile cases - like Mulroney and Airbus - a successful co-ordination of public relations strategy with legal strategy can have a profound influence on the outcome.

It's not just a matter of having a lawyer make comments to a reporter. Most lawyers, even the ones who make a habit of granting interviews, run on whatever innate abilities they have. But being knowledgeable in the law and persuasive in a courtroom or in a boardroom doesn't necessarily guarantee success in the other, less formal and often more combative court. The rules are different. That's where counsel comes in. Just as no one with half a clue would walk into court without a lawyer, no one - including lawyers - should wander into the court of public opinion without experienced counsel.

Part Two

There are at least five reasons to deal with reporters and, in the process, co-ordinate action in both the court of law and the court of public opinion.

It's called litigation public relations.

1. Preserve the presumption of innocence.

This may be the cornerstone of our legal system, but often the first allegation made in public is the one that sticks.

Far too often people and organizations facing allegations will decline public comment. Just as silence is consent, silence in the news media usually implies agreement with whatever is being said about you.

Consider any of the high-profile cases currently taking place in Newfoundland and Labrador. Current and former members of the House of Assembly face allegations about improper spending of public funds. Charges have been laid against one - and he continues to decline comment of any kind - but all are supposed to be innocent until proven guilty.

Ask anyone about the case and see how many are willing to maintain the presumption of innocence after the onslaught of allegations from the Auditor General. In a court of law, allegations are subject to scrutiny and cross-examination. Weaknesses in an argument, faulty work, or in some instances a lack of credible evidence may win an acquittal.


In the meantime, those allegations are all that are available publicly. And every time there's another news story, the allegations get repeated sometimes without direct refutation.

For example, take the case of the former director of finance in the legislature who faces a civil action brought against him by the provincial government to recover money he is only - at this point - alleged to have inappropriately obtained or which he is alleged to have approved for others. His lawyer filed a statement of defence to the claim, until now the only comment of any substance made on his behalf and it is 13 months after the first allegations were made.

The CBC coverage of the filing is accurate and apparently thorough. But look at the amount of space devoted to the allegations in a story on the statement of defence.
The same could be said of a radiologist in Burin accused - merely accused - of misreading radiology reports. Find someone who hasn't heard of the case. Find someone who doesn't believe the guy is guilty of screwing up more than 6,000 reports.

Silence implies guilt.

2. Provide accurate, factual information about the case from the client's perspective, or as may be the case, correct inaccurate information.

The basis of solid legal argument and solid public relations argument is fact. Nothing persuades better than a consistent, logical and simple series of factual propositions or statements.

It isn't spin. Spin is misrepresentation, which is a slightly more polite word for a falsehood. Spin erodes credibility which undermines reputation which rots relationships.

In all cases, but especially when the allegations are emotionally charged, it may be important to defuse emotionalism with facts.

Sometimes allegations may involve inaccurate information or a news report may include inaccurate information from any source, including third parties.

The inaccuracy may come from a comment or it may result from the context, like the example of a health authority announcing the suspension of a radiologist immediately before an announcement of a public inquiry into breast cancer screening problems.

If the subject is complex or the issues involved are arcane or intricate - like how claims were processed and who approved them - important details will be omitted or simply misunderstood.

3. Provide reporters with background information not necessarily related to the case so that reporters may understand the legal proceedings.

Reporters are usually bright people but even reporters who have covered legal issues for years before may be unaware of important aspects of the process.

A key part of any public relations job is translating complex issues into accurate but understandable language. Legal cases are no different than engineering or mathematics. Keeping the level of comprehension high fights against inaccuracy and the resulting wrong impressions.

Lawyers and others may often need to provide background information to ensure reporters get the story right.

A few years ago, I dealt with reporters covering a high-profile set of charges. My client was not directly involved.  Reporters were obviously having some difficulty understanding the circumstances under which bail is granted in Canada. The lawyer representing the accused didn't provide any information - simple background - and when I referred the reporters to the two Crown prosecutors on the case, both lawyers declined any comment.

Reporters were evidently frustrated and they were directing questions anywhere, including in my direction. As a result, I gathered some information, consulted a couple of solid sources and gave them a bit of background. Doing that helped direct questions away from my client - where attention shouldn't have been focused anyway - and also helped reporters understand the circumstances that likely influenced the judge's eventual decision to grant bail with some fairly stringent conditions.

The sad part of that episode was that both the Law Society guidelines and guidelines for federally-appointed courts on media coverage of court proceedings all encourage exactly that type of comment by lawyers even those directly involved in litigation.

4. Know what to say and when; know what not to say and when not to say it.

As important as it is to say something, it may also be advisable to hold back some information for the courts or even to avoid making some comments at all.

Ask Conrad Black's attorneys about that last bit when it comes time to sentence the former media baron.

More likely though, it may be generally inappropriate to lay out in detail every aspect of a defence or a prosecution, of an allegation or a response, in public before making the comments in court. That's something lawyers will know.

But consider the alternative: the need for disclosure in the court of public opinion.

In their book, Buck up and suck up, James Carville and Paul Begalla recount the initial stages of Whitewater. Bill and Hilary Clinton - being lawyers - instinctively approached the allegations like lawyers. They hired lawyers.

And the lawyers did what lawyers do: they said nothing, admitted nothing. They advised against saying anything. The lawyers acted in what they perceived as the clients' best interest based on what works in their world. However, as Carville and Begala point out, "stonewalling is the biggest, brightest red flag you can wave to a reporter."

Closer to home, consider the piece of information withheld from the public on breast cancer screening, apparently on the advice of lawyers. It's easy to trace and entire public inquiry to the furor created by just that one earnest and well-intentioned piece of advice based on experience in one court but used in the wrong one.

Openness breeds confidence. Stonewalling breeds something else.

5. Everyone follows the news and vice versa.

We'd be naive if we didn't understand that everyone watches television, listens to the radio and reads the newspapers or surfs the Internet.

Stories can't be contained any more by the fact they happen in a town with only a single daily newspaper, a couple of radio news outlets and a couple of television stations. For anyone doing business outside his or her own community, odds are that media coverage will reach. In addition to dealing with immediate legal problems, widespread media coverage may make it hard to carry on business elsewhere.

Equally, while it may have been possible once to pull stakes and move to another province or even another country to start again after a legal disaster, those days are gone. What will drag along behind is not just the legal disaster, but virtually every comment made - accurate or wildly speculative - and if the person or business happens to gain some prominence in the new local, old ghosts may return to haunt.

In the immediate world of a litigation though, we'd be equally naive to believe that judges and prospective jurors don't follow the news and we'd be just silly to think they also don't start forming some opinions based on what they hear initially. They are human.

Rather than vacate the field to whatever allegations are made, presenting factual, accurate comment in news media can influence a case. (Making wild and silly comments can produce the opposite, but that's another war story)

Consider the case of Max Ruelokke. Appointed to chair the offshore regulatory board by a process established by federal-provincial agreement (the 1985 Atlantic Accord), Ruelokke faced a situation in which the provincial government delayed issuing the order in council making the appointment official.

As it turned out, Ruelokke had to sue the provincial government to get the job he won on merit, but in the process, he faced public criticism from the Premier. Ruelokke didn't seek the limelight, but he never shied away from it either. He accepted interview requests and presented himself calmly and consistently. He was impressive, even as the whole process dragged on for months.

Would it have made a difference if he kept his mouth shut? Hard to say. Ruelokke had a strong case anyway, one the judge hearing the case described as a "slam-dunk" even before final summations.

Had Ruelokke lost his temper in the face of some of the comments made against him, he may well have damaged his case. By maintaining a cool demeanour and dealing simply with the facts, Ruelokke may well have helped confirm that he was simply a professional executive entitled to the job he had been awarded in a fair process.

Ruelokke's calm persistence in the face of the Premier's bluster may also have helped persuade the Premier to abandon his futile legal fight.

One sign of the impact Ruelokke had? After the case was settled, the Premier whined about Ruelokke being "in everyone's face" throughout the process, although Ruelokke had appeared in interviews on only a handful of occasions.

Ruelokke's response was characteristic of his overall performance:

"I have not gone seeking the attention of the media. I have not failed to respond, however, to media on my views on what's happened," he said.
That's the essence of litigation public relations.

- srbp -