January 3, 2011

Learn from Christine O’Donnell’s Possible ‘Witch Trial’: Be Cautious in the Court of Public Opinion

By: Dr. Ken Broda-Bahm – 

Enchanted Toad

When Christine O’Donnell, the Tea Party favorite who won the Republican nomination for a Delaware Senate seat before losing in November’s general election, received word of an U.S. Attorney’s Office investigation and possible charges stemming from misuse of about $20,000 in campaign funds to pay her personal expenses, she immediately took to the airwaves.  On a variety of network and cable news shows, she unequivocally denied the charges and went further to call the investigation “thug tactics,” and a politically motivated attempt to settle scores by enemies on the right and the left.  She does everything but call the investigation a “witch hunt”…but that is understandable since this is the same candidate whose troubled campaign was torpedoed when video surfaced showing a younger O’Donnell appearing on Real Time With Bill Maher claiming that she had “dabbled in witchcraft” and had to respond with a campaign advertisement beginning with the unforgettable declaration that “I am not a witch.”   

So what does this entertaining episode of campaign-craft have to do with a litigator’s advocacy needs?  Litigators, like politicians, understand that there is a court of public opinion that may matter more than, and certainly earlier than, the decisions that issue from hearing rooms and courtrooms.  So, is it a good idea to, like O’Donnell, get out in front of the story and get your side on the record?  Should a corporation that finds itself the subject of litigation similarly embrace a litigation PR strategy?  The answer, supplemented by a recent survey on General Counsel behavior, is yes, but it depends on how you do it.

The traditional conflict is between the PR professional, on one side, who understands that the news cycle is faster than ever, and recognizes a benefit to getting your message out there, strongly and repeatedly.  On the other side, there is the lawyer, who often views publicity as a form of discovery that you can simply opt out of:  after all, why disclose your best messages to the other side before you have to?   That classic dilemma is at odds with current practice.  While our typical image of a lawyer’s use of “the court of public opinion” might involve a criminal defense attorney standing on the courthouse steps in a circle of cameras talking about the lack of evidence against the poor unjustly accused client, the new reality involves corporate General Counsel and outside trial counsel being closely involved with the company’s public relations department in crafting and maintaining a message that works inside and outside of the courtroom.

A recent study (Beardslee, 2009), based on questionnaires and interviews with the General Counsels of S&P 500 companies, looked at the role of corporate attorneys in advocating in the court of public opinion, as well as how far they do and should go in that advocacy.  The published article, cited below, is available to research service subscribers (e.g., Lexisnexis), but a pre-publication draft copy is available here.

Three main conclusions stand out from this research.

1.  You Can’t Say Nothing.  In today’s media environment, “no comment” is no longer a viable strategy, if it ever was.  The media thrive on sources and comments, and those who have them have the best chance of getting their side of the story out.  For that reason, Christine O’Donnell is right to be speaking out (though not necessarily right in what she chooses to say — see points two and three below).  In the days after word of the investigation broke, she was speaking to the news and the U.S. Attorney’s Office wasn’t.  That provided a critical opportunity to highlight a positive, or at least less negative, spin to the story.  Similarly, in a highly visible case, a company has much to gain or lose in the way that the litigation is positioned in the media.  Beardslee’s survey found that, within corporations, it is increasingly common in high profile litigation for in-house attorneys to be actively managing the legal PR behind the scenes, including public message development and dissemination.

2.  You Must Communicate With One Voice.  While O’Donnell was definite in stating that “There’s been no impermissible use of campaign funds whatsoever,” in a newspaper interview last March, she had acknowledged that she used campaign funds to pay part of the rent on a town home that she lived in and used as a campaign headquarters – a violation of campaign finance laws.  Whatever is true, the inconsistency feeds the story.  This is why a corporation, or any party in litigation, needs to quickly decide on a single effective spokesperson as well as a process for ensuring that any public messaging is accurate and consistent.

3.  You Must Ensure that the Public Message Jibes with the Potential Trial Message.  There is always the chance that early statements made prior to trial can lock you into a trial strategy that you wouldn’t have chosen after a more sober review of the evidence against you.  In O’Donnell’s case, the best message for a future trial might be unequivocal denial, or the ambiguity of the law, or perhaps the unauthorized actions of campaign staff.  But as of now, the former candidate is locked into the first message – simple denial.  It reminds you of former Illinois Governor, Rod Blagojevich, who repeatedly said before trial that he “can’t wait to begin to tell my side of the story,” and then opted to not take the stand during trial (we’ve written previously on this).  For a company in litigation, sticking with a message that you can ride through trial requires early and close cooperation between the company’s legal and PR departments.  The old wall of separation between these two departments was never a good idea, and Beardslee’s research shows that it has substantially broken down.

Lawyers, inside or outside of a corporate legal department, are appropriately careful to avoid taking the court of public opinion to the point of manipulating the jury pool.  But they should also be aware of rules, like Model Rule of Professional Conduct 3.6, that allows lawyers to make public statements on behalf of your clients that are designed to address negative publicity.  What this means is that, when the harmful information is already public, then it becomes a lawyer’s responsibility to clarify – carefully – that your client is “not a witch.”

ResearchBlogging.org Michele DeStefano Beardslee (2009). Advocacy in the Court of Public Opinion, Installment One: Broadening the Role of Corporate Attorneys The Georgetown Journal of Legal Ethics, 22 (4)

Photo Credit:  Randy Robertson, Flickr Creative Commons

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