Litigation public relations problems and limits.
PROBLEMS AND LIMITS"It'll pass. The President will remain in office, he'll do a good job . . . and I think everything's going to be fine."(1) This confident declaration by William Ginsburg, attorney to Monica Lewinsky in one of the alleged sex scandals of President William J. (Bill) Clinton's presidency, is remarkable in that it occurred as part of a litigation public relations campaign. The tabloid television show American Journal referred to Ginsburg's "massive media blitz defending his client," while AJ's competitor, Inside Edition, noted that "His (Ginsburg's) press strategy is receiving harsh criticism." Inside Edition videotaped Ginsburg begging off reporter's requests for interviews, claiming "I did five shows today, and I'm really fired."(2) Indeed, the Associated Press noted that "Ginsburg was a one-man show on the Sunday news circuit, appearing on five programs."(3)
Bill Clinton's sex life and ensuing legal problems, however titillating, pale in comparison when the landmark litigation public relations case, to date, is considered - the O. J. Simpson criminal and civil trials. As jury scholar Godfrey B, Lehman noted, "From this time forward, the history of trial by jury shall be divided into two distinct eras which shall be known as the BOJ period and the AOJ period. The acronyms stand for, respectively, the time before Orenthal J. Simpson and the time after he crashed into our collective consciousness during the eventful summer of 1994."(4) Simpson's emergence was neither accidental nor unintentional, but rather the calculated result of an effective litigation public relations campaign.
Was it appropriate for Ginsburg, the attorney of a potential legal adversary of President Clinton, to issue statements of an exculpatory nature about Clinton, and to remark that "All 24-year-olds and all 18-year-olds and all 19-year-olds tend to embellish" (Lewinsky, his client, was 21 at the time), seemingly undermining his own client?(5) Did Simpson escape criminal prosecution because of an effective litigation public relations campaign? These are serious questions, and they motivate the present study, which has a singular focus - determining the problems caused by litigation public relations, and the limitations associated with its use.
PROBLEMS AND LIMITS
There are substantial benefits to litigants of engaging in litigation public relations campaigns before and, if necessary, during trial. It is widely believed that publicity has the potential of influencing jurors, and that public opinion is a powerful ally for any prosecutor, plaintiff, and defendant.(6) The vitality of the litigation public relations industry stands as testimony to the popularity of this public relations speciality, and this analysis is not intended to judge or criticize litigation public relations practitioners. However, there are disadvantages and drawbacks to litigation public relations.
The present study, through historical-critical methods and based upon a comprehensive review of the litigation public relations and related literature, suggests ten such difficulties: (1) Effect on Trial Outcome; (2) Court of Public Opinion vs. Court of Law; (3) Pro-Plaintiff/Prosecution Bias; (4) Ethics; (5) SLAPP Suits; (6)Attorney/Public Relations Clashes; (7) Cost; (8) LPR Action/Reaction Cycle; (9) Constitutional Rights Conflict; and (10) News Diversion.
Effects on Trial Outcome
It is intuitively appealing that persuasive communication, and quite possibly mere publicity, might have an effect on jurors or judges hearing cases. PR Tactics defined litigation public relations campaigns in terms of potential trial outcome effect: "A litigation public relations campaign includes carefully constructed messages aimed at various target audiences - the media, the courtroom decision makers - to affect the views of people across the country and, in certain situations, the outcome of the trial."(7) Interestingly, however, there is a body of evidence exonerating pretrial publicity from undue trial outcome influence.(8) To understand the consequences of litigation public relations on trial outcome, we must consider three issues: litigation public relations is pretrial publicity; pretrial publicity affects trial outcome; and pretrial publicity remedies are ineffective.
Litigation public relations is pretrial publicity. Litigation public relations (also called "litigation journalism" by Gorney, and "journalistic prosecution" by Lukaszewski) is tantamount to what legal scholars, jurists, and political scientists refer to as "pretrial publicity." Both terms refer to the process and outcome of planned, purposive communication programs designed to stimulate certain attitudes and/or behavior. The differences are both disciplinary and evaluative, as the public relations construct, litigation public relations, is typically positively regarded, while political science and jurisprudence's pretrial publicity is generally portrayed as a negative entity.
Pretrial publicity affects trial outcome. In 1991 Moran and Cutler found that "even modest pretrial publicity can prejudice potential jurors against a defendant and . . . self-reports of impartiality should not be taken at face value."(9) Green stated that "jurors' decisions may be influenced by a broad range of legally relevant information gleaned from media sources, including newspaper reports, radio and television news, advertising, movies, television crime shows, and televised courtroom scenes."(10)
In order to fully understand the impact of pretrial publicity we must first define the term. Padawer-Singer and Barton defined pretrial publicity as "the effect of news reporting, whether in print or broadcast media, upon the fairness of the trial."(11) In the aforementioned study, Padawer-Singer and Barton found that "80% of jurors exposed to prejudicial articles convicted, while only 39% of the control jurors did likewise."(12) Kramer, et al., found in their 1990 study two separate types of publicity, factual and emotional, that may affect potential jurors' ability to serve appropriately and without prejudice. Factual publicity "contains incriminating information about the defendant," and emotional publicity "contains incriminating information about the defendant," and emotional publicity "contains no explicitly incriminating information, but did contain information likely to arouse negative emotions."(13)
The finding of separate types of pretrial publicity complicates analysis of the use of litigation public relations. Factual publicity plays an important role in biasing potential jurors by providing negative information about the defendant. Otto, et al, found that "pretrial publicity, particularly negative information about the defendant's character can influence jurors' initial judgments about a defendant."(14)
Simon and Eimermann's telephone survey of pretrial publicity regarding a murder case identified 79% as having heard/read about the case, with 75% able to supply details. Significantly, those who remembered the most details were more likely to favor the prosecution.(15) Tankard et al. sampled news stories by looking for violations of the ABA Model Code on prejudicial publicity; 67% of the news stories contained at least one violation of the ABA guidelines.(16) Kramer et al. observed that pretrial publicity seemed to increase the persuasiveness of pro-conviction jurors.(17)
"Many empirical studies of mock jurors' ability to lay aside impressions have supported the ABA's concern that certain types of publicity can be particularly prejudicial . . . . More importantly, negative perceptions following such exposure to pretrial publicity have also been found to carry over in experimental settings to posttrial judgments of guilt," Imrich et al. suggested after surveying the pretrial publicity literature and identifying fifteen corroborating studies.(18) In the empirical study conducted by Imrich et al., which was essentially a replication of Tankard et al., 27% of defendants were victimized by pretrial publicity in violation of ABA standards.(19)
The factual/emotional pretrial publicity dichotomy proposed by Kramer et al. was further investigated by Ogloff and Vidmar. They found that TV pretrial publicity is more biasing than print pretrial publicity, but that the two combined is the most biasing.(20) Juror self-reports of impartiality are invalid in cases where there is extensive emotional pretrial publicity, rendering voir dire ineffective.(21)
One study sought to identify the most important factor in jury bias. Constantini and King concluded that the more media sources used by a juror, the more information s/he possessed, and the more information possessed, the greater the likelihood that the juror would be pro-prosecution.(22) The study noted that pretrial knowledge was the best predictor of prejudgment.(23)
Pretrial publicity remedies are ineffective. Although there are many who advocate the adequacy of status quo pretrial publicity remedies,(24) there is considerable reason to doubt the efficacy of these countermeasures. Richard Winfield, General Counsel to the Associated Press, argued that gag orders are not effective, as prosecutors seems to enjoy immunity to such devices.(25)
Kramer et al. investigated pretrial remedies for effectiveness vs. both factual and emotional pretrial publicity. Judge's instructions to jurors did not reduce the impact of pretrial publicity, and continuances only worked in cases of factual pretrial publicity. On balance, the efficacy of pretrial publicity remedies was not demonstrated.(26)
Court of Public Opinion vs. Court of Law
There appears to be jurisdictional disagreement between the courts of jurisprudence and those of public opinion. Because the two differ in substantial ways, including rules of evidence admissibility, due process, and economic access, a problem arises when the same case is simultaneously tried in both courts.
The criminal justice system was created to allow courts final ruling in the criminal or civil judgment of an individual or corporation, but the use of publicity has shifted the final ruling to that of public opinion, thereby undermining judicial verdicts. In 1994 Gorney stated, "Litigation journalism is seriously undermining the integrity of our legal process."(27) Gorney added that "it is not the function of the press, or those who disseminate news and information . . . to allow the merits of individual cases to be argued or promoted outside due process."(28)
It is feared that the court of public opinion influences deliberations in courts of law. Professor Douglas Ann Newsome says, "Once a case is in the courts, a judge may decide that the organization's publicity and advertising generated to defend itself in the court of public opinion are an effort to affect the outcome of the court proceedings."(29) Harvard Law Professor Alan Dershowitz believes that "the media docs influence the outcome of trials. Once a television camera focuses on guilt, the public verdict penetrates all levels of the criminal justice system."(30)
The public verdict emanates from within the court of public opinion, yet this particular court should not have the final say in determining public perceptions of a defendant. McLean-Murray states that "litigation [is] a legal process that should not be compromised by anything other than the actual testimony or evidence presented at trial."(31)
Attorneys are required to follow strict rules of evidence and procedure during a trial, and problems may result when the media fail to follow the same rules for releasing information to the public. A standard media law textbook suggested these due process differences:
Judges and lawyers are accustomed to seeking the truth in a courtroom where hearsay and illegally obtained evidence have no place; speed in arriving at the truth takes second place to faith in the process will eventually lead to the truth. For journalists, on the other hand, speed is of the major importance, and even hearsay and illegally obtained evidence may be deemed newsworthy.(32)
The ultimate effect of competing jurisdictions lies in our propensity to disregard a judicial verdict if it does not adhere to our preconceptions. The general public tends to accept judicial verdicts it agrees with, and supplant disagreeable ones with rulings from the court of public opinion more congruent with their feelings.
Lehman agreed, noting "When we find fault with a jury verdict, we are not assessing the jury's failure rate, we are expressing our personal prejudices."(33) This breeds disrespect for our legal system, and may result in social fragmentation, and alienation from civic participation.
The verdicts rendered by public opinion may have greater historical significance than judicial outcomes. Chiasson asserted:
The true American theatre is the courtroom. How the public views the stage is often left to the media. The jury renders a verdict, but public opinion often determines the final verdict in terms of the lasting historical significance of the crime . . . . The reason is relatively simple. Trials are media events, and media coverage impacts their importance.(34)
Stack concluded that the two courts are essentially comparable, and equally important in promoting client rights;
Attorneys are beginning to realize that to provide full service to their clients, they need to represent them not only in the court of law, but in the court of public opinion. While legal opinions are rendered in a court of law, personal reputations - sometimes even public policy - is made in the court of public opinion. It's important to protect one's integrity and long-term reputation, so an attorney really does have to battle in the court of public opinion for the client.(35)
Pro-Plaintiff/Prosecution Bias
Pretrial publicity does not produce a level playing field for all parties in litigation; indeed, Gorney was struck by "the realization that resultant media coverage will most often have a clearly plaintiff bias."(36) The term defendant in itself has a negative connotation, and the media perpetuates this negative connotation to inadvertently assist the plaintiff in high-profile cases. "While defendants are talking about scientific studies and design factors, the plaintiffs tearfully are telling audiences what good wives and others the alleged victims were, or how they are struggling to deal with their losses."(37)
"The character of the defendant may be defined by the media in its earliest coverage, making the defendant a more salient or ~'prominent' figure," Shaffer noted.(38) Ogloff and Vidmar found that "coverage is more likely to be biased toward the conclusion that the defendant is guilty because the stories report information about such things as the details of the alleged crime and the arrest of the accused person."(39) They added that "the bulk of the information upon which reporters rely comes from police reports and prosecution charges; from the commencement of the case the source of publicity is prosecution focused."(40)
In 1995, Imrich et al. found when interviewing defense attorneys that:
they argue that even if court-ordered restraints were placed on both defense and prosecuting attorneys, press coverage nevertheless would be lopsided against a defendant, as prejudicial information would be released by the police and FBI officials. Prosecution-side sources such as law enforcement were found to be responsible for much of the prejudicial information reported in the press.(41)
The ability of the prosecution to circumvent court-imposed communication restraints was confirmed by Katherine Hatton, vice president and general counsel to Philadelphia Newspapers Inc., who noted that even when judges impose restrictions on trial participants, a "media pop" has already been scored by the prosecution when indictments are announced at news conferences.(42)
The reality of a pro-prosecution media bias was emphasized by Lukaszewski in 1995, "The first reality that clients need to recognize and overcome is that the courts, judges, other participants in the process and the news media tend to look at them as suspects."(43) Gorney added, "My own research shows that where defendants have been part of a litigation story, their statements were very brief in proportion to the entire story and were positioned weakly between victims and experts."(44)
Perhaps the pro-prosecution bias can be attributed to the differential rates of contact between media personnel and attorneys discovered by two recent studies. Dreschel found that prosecutors were far more likely to contact journalists than were defense counsel or judges, and that in turn journalists were much more likely to depend on prosecutors for information.(45) Two years later, Doppelt replicated Dreschel's study, with 40% of prosecuting attorneys acknowledging weekly or daily contact with reporters, compared to 16% of defense lawyers and 12% of judges reporting such contact.(46)
A traditional position often taken by a defendant or his/her attorneys is the "no-comment" avenue. This option is usually taken to protect the defendant from negative press, but it may serve to perpetuate the negative appearance of the defendant. Gorney suggested that "no comment is perceived by the media and the public as being tantamount to an admission of guilt."(47) While the use of "no comment" tends to further the public's perception of a defendant's guilt, often the attorneys are placed under a gag order from the court, which disallows their participation in media coverage of a case.
Not only are defendants given less press than plaintiffs, but there is also a substantial difference between the press given criminal cases as opposed to civil cases. Gorney perceived that "a significant imbalance occurs between the rights of the two categories of defendants and critical unfairness exists between civil plaintiffs' and defendants' access to the media once a lawsuit is filed."(48)
The clear plaintiff bias in civil cases, and the prosecution bias in criminal matters, undermines the judicial process. A defendant is supposed to be innocent until proven guilty, but prejudicial publicity placed the defendant in a position to defend him/herself in the court of public opinion as well as in the legal court. Litigation public relations professionals need to be aware of the media's tendency to give coverage to plaintiffs, while defendants must fight for positive publicity.
Ethics
"Publicity under the constraints of client confidentiality and professional ethics is difficult."(49) Stein's observation succinctly expresses the crux of the litigation public relations ethics issue, but McLean-Murray's assessment was more blunt, "The relationship between the practice of public relations and litigation raises several important ethical implications."(50)
During the Amy Fisher trial, her attorney also served as her public relations person. Eric Naiburg, when questioned about his ethical practices, said, "If I give you deliberate misinformation on behalf of a client and you print it, that's your problem."(51) McLean-Murray noted this ethical issue, "When attorney Eric Naiburg said that he had no qualms about misleading reporters to benefit his client, Amy Fisher, he justified this concern about the ethical conflict in the worst case scenario - that of a lawyer giving out statements designed to mislead the media to zealously defend a client."(52)
Gorney admonished journalists to "remember the ethical requirements of fairness, balance, and responsible reporting."(53) The Public Relations Society of America (PRSA) has a Code of Ethics that "requires practitioners to exemplify high standards of honesty and integrity" and "carry out dual obligations to a client or employer and to the democratic process."(54) McLean-Murray also suggests, "In their contact with the media, although some of these rules and principles apply, ethical considerations should guide conduct. If information is admissible in the courtroom setting it is ethically incorrect to give that same information to the media in attempts to sway public opinion or influence jurors."(55)
SLAPP Suits
A relatively new occurrence with regard to litigation public relations campaigns has arisen in the form of SLAPP (Strategic Lawsuits Against Public Participation) suits being filed. Tredennick observed, "The formula for trouble usually seems to start with a high-stakes adversarial contest. One side issues a press release or makes out-of-court statements about its activities in court. The other side responds with a defamation suit. Sometimes referred to as SLAPP suits, these actions can have a decidedly chilling impact on advocates."(56)
SLAPP suits are intended to inhibit and deter litigation public relations, and they thus seek to restrict lawful communication. For this reason, "Some states have passed statutes to stop countersuits against lawyers and litigants where the issue of the original suit is a matter of public interest. However, the anti-SLAPP statutes do not stop every defamation countersuit."(57)
When SLAPP cases reach appellate courts, as they will eventually, "A key issue is whether the out-of-court statement was privileged," Tredennick asserted. He added that "Under statutory and common law, the absolute privilege for statements made in court to advance a suit is nearly universal. However, there may only be a qualified privilege for identical statements made by lawyers and litigants out of court."(58)
"Even when the defamation suit is ultimately unsuccessful, it can be onerous and expensive to defend, and can disrupt the attorney-client relationship."(59) SLAPP suits can be an expensive litigation public relations-induced problem.
Conflicts Between Attorneys and PR
The difference in professional ideals and procedures among attorneys, public relations staff, and members of the media lends itself to a conflict among people who should be working together. "Lawyers complain that public relations practitioners don't understand legal issues; PR professionals complain that lawyers don't like to appear to be promoting themselves, yet they have certain expectations about the kind - and the amount - of publicity they receive."(60)
Cooper found that "the often competing and adversarial approaches to problem solving used by public relations professionals and lawyers can have a paralyzing effect on the decision-making process."(61) "Paralysis of decision making" results from the "frustrating and restrictive" conservatism of attorneys, according to Public Relations Journal.(62) "Though the relationship between lawyers and public relations practitioners is often hostile and belligerent, it doesn't have to be," argued William Koch, APR, public affairs manager for a waste management company.(63)
Attorneys tend to focus on the silence of the client, while public relations practitioners rely on public speech as part of their professional practice. Fitzpatrick and Rubin found that "legal strategy dominated the decision-making process. Traditional legal strategy was followed in almost two-thirds (24) of the situations, while traditional public relations strategy was followed in less than one-fifth (7)."(64)
"In crisis, the comment/no-comment tug of war is often an issue. To lawyers, not commenting is a guarantee that you won't say anything that might later be used against you. To public relations practitioners, not commenting means that the public may interpret silence as admission of guilt."(65) Cutlip added, "The education and mindset of most lawyers handicap them in their role of public relations counselor. The lawyer's basic attitude I once heard expressed succinctly by a General Motors attorney: 'Tell' em nothing, deny everything.' We saw this attitude writ large in Exxon's disastrous response to the Alaska Valdez oil spill."(66)
Not only do lawyers and public relations professionals have professional differences, but attorneys and media practitioners also have communication difficulties, according to Jannet Hurd, of Verner, Lipfert, Bernhard, McPherson, and Hand in Washington, D.C., "Many lawyers are unwilling to release information to a reporter."(67) Stephen Jones, the lead defense attorney for Timothy McVeigh, experienced some of the problems within the relationship between attorneys and the media:
If I spoke to the media too much, they accused me of self-promotion. If I spoke less, they accused me of being unavailable. If I did not appear zealous enough in the defense of McVeigh, I was accused of being token, because I was paid by the government, but if I was too aggressive, I was accused of being insensitive to the victims' feelings and flailing about at the taxpayers' expense.(68)
These attitudinal and behavioral barriers between attorneys and public relations professionals are unfortunate, as most crises require the skills of both parties. "With growing frequency, people or businesses faced with a crisis find themselves turning to two consultants; lawyers and those engaged in public relations," Cooper suggested.(69) Fitzpatrick agreed, noting "When crisis strikes, organizations face potentially devastating public relations and legal consequences. Companies involved in crisis risk losing both their credibility with important constituents, as well as incurring legal liability for alleged bad acts."(70) Twardy added:
Public relations professionals and lawyers must work hand-in-hand with their corporate clients and with one another. The lawyers will need to devise a strategy that will place the client in the best possible position in a court of law. The public relations professional will need to develop a strategy that will place the client in the best possible position in the court of public opinion.(71)
Stack underscored both the necessity for all litigation public relations participants to work effectively together and the barriers to their cooperating: "Current trends in media coverage of the judicial system are compelling attorneys and journalists to work together more frequently, even though the two professions have little understanding about how each other's respective fields work, are critical of one another, and have minimal awareness of how to work together effectively."(72)
Cost
Litigation costs a great deal, and many people do not have the money to hire an attorney and pay for a defense. The creators of the Constitution and the Bill of Rights perceived this problem, and they created a clause specifically addressing the issue of cost and providing that if an accused person cannot afford an attorney the court will appoint one for them.
Not only is the process of litigation a costly one, but litigation public relations is also an expensive venture. Richard Stack, an attorney and communication professor at American University, observed about litigation public relations that "such a talent is employed solely by clients who can afford it."(73) Stack added, "If it's good for the rich, it should be good for the poor."(74) Legal services are continually provided for people who cannot afford to hire an attorney; Stack feels that litigation public relations should also be provided for those who cannot afford it: "I would like to see communications slots opened up for legal aid societies and public defender offices to balance the scales, especially when prosecutors have such an early and frequent shot at getting their cases known."(75)
Stark's plea for subsidized litigation public relations assistance for all defendants is unlikely to be realized anytime soon; in a capitalist system, the ability to pay distinguishes between people on the basis of the ability to pay for goods or services. This economic equity issue concerned Lehman:
Jury and trial "consulting" thus dedicates itself to constitutional destruction by attempting to manipulate the system . . . . These professionals charge very high prices, which would reduce "justice" to a marketable commodity that can be purchased only by the well-off. Justice would then become marketable if the consultant can guarantee a winning case. With opposing consultants in competition, which guarantee is likely to be met? Is winning based on the cost of one's consultant?(76)
Action/Reaction Cycle
One dangerous potential litigation public relations problem involves an action/reaction cycle, an escalation where one litigant's communication campaign inspires a counterattack. This communication version of an arms race could escalate to serious dimensions.
"The tactic of prosecutors and defense attorneys putting pretrial 'spins' on the facts can turn into a judicial nuclear arms race, in which each side blames the other for accelerating the conflict," Clark noted.(77) Imrich et al. concluded, "Many prominent defense attorneys, in response to the recent criticism of their press contact, argue that their primary reason for speaking out is to counter the barrage of antidefendant statements issued regularly to the press by prosecutors."(78)
Gorney explained the virtual inevitability of the action/reaction cycle, in conceptual terms:
Failing to respond quickly to charges made or carried by the media is, more than ever before, perceive as having something to hide. The result: All organizations, particularly high profile ones, that are easy targets of often baseless litigation, must learn and use the tactics of litigation public relations or risk losing the battle (and maybe the war) before firing their first legal shot in defense.(79)
In the Oklahoma City bombing case, convicted bomber Timothy McVeigh's lead defense attorney engaged in litigation public relations specifically to counter similar prosecutorial efforts. Defense counsel Stephen Jones told a news conference, "The public is entitled to know more about Mr. McVeigh than the government has released anonymously."(80) He later told a reporter, "We were trying to show the media that McVeigh's image, created by the government's leaks, was false."(81)
Dow Corning found itself in a comparable position recently, "For three years, Dow Corning Corp. has been engaged in a scientific and legal tug-of-war concerning alleged hazards of its silicone breast implants . . . the fallout from claims of adverse health effects has hit the company hard, leading to last month's announcement that it may file for Chapter 13 bankruptcy protection to survive." In response to the anti-breast implant litigation public relations campaign, Dow "sought to provide information on developments in implant research to the public, media and its employees. It has also taken steps to communicate directly with implant patients, their physicians, and support groups."(82)
One study suggested that attorneys devote time during the trial to countering the effect of pretrial publicity: "Attorneys will be better able to communicate their case to the jury if they understand what scenarios are prevalent and make an effort to counteract the effects of general pretrial publicity that may bias jurors."(83)
Constitutional Rights Conflict
Perhaps the most serious litigation public relations problem, aside from the prejudicial effect on trial outcome, involves the clash of important Constitutional rights. Hardaway and Tumminello referred to the collision of the First Amendment's declaration of media rights and the Sixth Amendment's rights of public trial and impartial juries as "a clash of Constitutional proportions."(84)
"The extraordinary press and public attention given to recent high-profile criminal trials has focused attention on the question of whether a conflict exists between the right of a defendant to a fair trial and the freedom of speech guaranteed to the public, press, and private individuals" Whitebread and Contreras reasoned.(85) Shaffer corroborated their opinions; "The conflict arises from the danger that the press in informing the citizenry will also prejudice the potential jurors to the point that it is impossible to form a fair and impartial jury."(86) McLean-Murray warned that, in the face of litigation public relations, we must be vigilant in "protecting the Constitutional rights of a defendant."(87)
Interestingly, journalists do not necessarily insist on the primacy of their Constitutional rights. Limburg et al. concluded, "Both print and broadcast reporters placed high degrees of importance on a fair trial - even more so than on the freedom of the press in the courtroom."(88)
News Diversion
Media critics have long decried attention paid to certain topics in lieu of others for coverage. For instance, international issues are said to be ignored in favor of relatively less important domestic issues. Complex, public policy issues are not covered in meaningful manners, while sensational or lurid stories get full play if litigation public relations campaigns succeed in diverting our attention.
Consider the Clinton/Lewinsky sex scandal:
From Jan. 21-27, ABC, CBS, and NBC devoted 124 stories - that's 244.7 minutes or 63.7 percent of news stories - to the Clinton-Lewinsky matter, says the nonprofit, nonpartisan Center for Media and Public Affairs. During the same period there were 22 stories about the Pope's visit to Cuba and 14 about the crisis in Iraq.(89)
When one story is covered, that time or space cannot be allotted to another story. In this sense, there is an opportunity cost imposed by each editorial decision to include litigation public relations-generated material in print or electronic news. Our collective attention may be diverted.
CONCLUSION
This paper sought to identify problems generated by, and limitations on the use of, litigation public relations. Contemporary cases have been critically examined, and the pretrial publicity and litigation public relations literatures have been reviewed, to facilitate our analysis of the negative side of litigation public relations.
The most significant problem caused by litigation public relations is pretrial publicity. If litigation public relations influences trial outcome, then the fundamental assurance of fair trials for all Americans may well be an illusory one. If litigation public relations is substantially equivalent to pretrial publicity, and there is reason to accept this equation, ethical liabilities must be conceded. In addition, Constitutional rights clash over litigation public relations activities, as rights to public trials by impartial juries may be undermined by the right of media coverage.
If one accepts the marketplace-of-ideas concept, then litigation public relations is a beneficial contributor to the universal market of ideas. It is a neutral tool, able to be used by any party to litigation. In fact, it is to the benefit of the general public and the American criminal justice system for litigation public relations to be developed, so that the relational difficulties encountered by attorneys and members of the press can be brokered and mediated by those professionals trained in facilitating communication.
The present study has not made an on-balance judgment that litigation public relations is more bad than good. Indeed, a complete account of the social, political, and legal benefits of litigation public relations is outside the scope of this paper, which focuses on the undesired consequences of this practice. Other studies in this research agenda concentrated on the foundations of litigation public relations,(90) and an ongoing study is investigating the communication variables in litigation public relations.
Much of the criticism of contemporary litigation public relations practice discussed in this paper actually, upon closer examination, supports the development of more effective communication practices. Stack observed:
The interaction between lawyer and journalist has spawned a burgeoning communication subspeciality, litigation public relations. This discipline contends that a public communication expert can play a critical role in the dialogue between the media and attorneys. If properly managed, litigation public relations may influence the media coverage of a case.(91)
Litigants, the general public, the media, and the participants in the criminal justice system all benefit from the development of ethical and effective litigation public relations practices:
A strong working relationship between the media, the public relations specialist, and the lawyer could help demystify both the judicial and journalistic processes, thus making the legal system more accessible to the average citizen. Court coverage that is clearer, more accurate, more complete, and more objective could balance the scales in the court of public opinion.(92)
I agree with Stack, who suggests that litigation public relations can contribute to just verdicts in both the courts of jurisprudence and those of public opinion.
It is important to take into account the unintended, undesirable consequences of litigation public relations if we are to have an accurate understanding of the complete nature of this important contemporary communication practice. Litigation public relations has prominent critics within the communication and criminal justice system, whose insight can enable litigation public relations practitioners to more effectively understand public attitudes and serve their clients and the public interest. If we take heed of the potential problems incurred by litigation public relations activities, we might prevent or minimize their impact while maximizing the individual and social benefits of this applied communication practice.
NOTES
1. Jim Abrams, "Lewinsky Lawyers: Clinton Crisis Will Go Away," Albuquerque Journal (Feb. 2, 1998), p. A-6.
2. American Journal, Feb. 3, 1998; Inside Edition, Feb. 3, 1998.
3. Jim Abrams, op. cit., p. A-6.
4. Geoffrey D. Lehman, We the Jury: The Impact of Jurors on Basic Freedoms (Amherst, NY: Prometheus Books, 1997), p. 9.
5. Jim Abrams, op. cit., p. A-6.
6. Litigation public relation's effectiveness can be inferred from the surge of popularity in this specialized communication field. Cipalla called "the world of legal public relations . . . one of the fastest-growing PR specialities around." See Rita Cipalla, "Legal Public Relations: The Verdict Is In," IABC Communication World (March 1994), p. 34. A year later, PR News suggested that "a new specialization has emerged, litigation public relations. Communicating with the media during litigation - whether your organization is a plaintiff or defendant - is a specialized type of PR practice." See "Litigation PR: What to Say, and When to Say It," PR News (Aug. 7, 1995), p. 8.
Litigation public relations may be an inevitable reaction to what some describe as hostile media intent and behavior. Lukaszewski observed that "when corporations have a serious legal problem, and have a high-profile brand, they attract what I call the other prosecutors, better known as the news media." See James E. Lukaszewski, "The Other Prosecutors," Public Relations Quarterly (Spring, 1997), p. 23. Gorney also perceived a negative power involved in litigation public relations; in a 1993 article entitled "Litigation Journalism Is a Scourge," her lead sentence extended the logic of her title, "Litigation blackmail is being committed in the United States every day, aided and abetted by journalists, lawyers, and public relations consultants." See Carole Gorney, "Litigation Journalism Is a Scourge," New York Times, Feb. 15, 1993, p. C-1.
Two years later, Gorney continued her criticism of litigation public relations; "Of all the negative, potentially image-threatening situations that organizations find themselves faced with today, by far the most frustrating is litigation journalism." See Carole E. Gorney, "The New Rules of Litigation Public Relations," Public Relations Strategist 1 (Spring 1995), p. 23.
7. "PR in the Court," PR Tactics 2 (November 1995), p. 3.
8. The notion that pretrial publicity is relatively harmless has been advanced. For instance, a study of convicted criminals found, "The inmate responses suggested that for most criminal trials, coverage of the arrest and/or actual trial was minimal." Sherard concluded her study with this judgment: "These findings suggest that even in the estimation of those individuals most directly affected by news coverage of criminal trials - the defendant - the press' influence on the trial generally was perceived as minimal and fair." See Regina Ganelle Sherard, "Fair Press or Trial Prejudice?: Perceptions of Criminal Defendants," Journalism Quarterly (Spring 1987), pp. 337-340.
One way to quantify the impact of pretrial publicity is to ascertain how many cases succeed on appeal for that reason. Spencer found that only 638 criminal appeals out of 63,000 state court decisions resulted from pretrial publicity, according to a five-year study. He also concluded that fewer than 100 out of 250,000 Federal convictions were successfully appealed based on pretrial publicity. See Dale Spencer, "Coverage Seldom Cause for Conviction Reversal," Presstime (October 1982), pp. 8-10.
Other studies have isolated jurors as the focal point for determining pretrial publicity effects. Frasca observed that only 2% of jurors are unduly influenced by pretrial publicity, because most readers/viewers forget so rapidly. Key case facts are forgotten by 94%, and most people recall only 1.5 facts per case. See Ralph Frasca, "Estimating the Occurrence of Trials Prejudiced by Press Coverage," Judicature 72 (October/November 1988), p. 162.
Seibert, Wilcox, and Hough replicated the essence of these studies in their Detroit Free Press analysis. They concluded that publicity did not have a substantial effect on trial outcome, because of delay between the "breaking" of a story and the trial. See Fred Seibert, Walter Wilcox, and George Hough III, "Felonies, Jury Trials & News Reports," in The Press & Fair Trial: Some Dimensions of the Problem (Athens, GA: University of Georgia Press, 1970).
A final factor might minimize the impact of pretrial publicity; it appears that interpersonal communication has a stronger biasing effect on jurors than does mediated communication. See Sam G. Riley, "Pre-Trial Publicity: A Field Study," Journalism Quarterly 50 (Spring 1973), pp. 17-23.
9. Gary Moran and Brian L. Cutler, "The Prejudicial Impact of Pretrial Publicity," Journal of Applied Social Psychology 21 (1991), p. 345.
10. Edith Greene, "Media Effects on Jurors," Law & Human Behavior 14 (1990), p. 440.
11. A. Padawer-Singer and A. H. Barton, "The Impact of Pretrial Publicity on Jurors' Verdicts," in Rita J. Simon (ed.), The Jury System: A Critical Analysis (Beverly Hills, CA: Sage Publishers, 1975), p. 125.
12. Ibid, p. 347.
13. Geoffrey P. Kramer, Norbert L. Kerr, and John S. Carroll, "Pretrial Publicity, Judicial Remedies, and Jury Bias," Law and Human Behavior 14 (1990), p. 409.
14. Amy L. Otto, Steven D. Penrod, and Hedy R. Hexter, "The Biasing Impact of Pretrial Publicity on Juror Judgments," Law and Human Behavior 18 (1994), pp. 464-466.
15. Rita J. Simon and T. Eimermann, "The Jury Finds Not Guilty: Another Look at Media Influence on the Jury," Journalism Quarterly 48 (1971), pp. 343-344.
16. James W. Tankard, K. Middleton, and T. Rimmer, "Compliance with American Bar Association Fair Trial/Free Press Guidelines," Journalism Quarterly 56 (1979), pp. 464-468.
17. Geoffrey P. Kramer, Norbert L. Kerr, and John S. Carroll, op. cit., pp. 409-438.
18. Dorothy J. Imrich, Charles Mullin, and Daniel Linz, "Measuring the Extent of Prejudicial Pretrial Publicity in Major America Newspapers: A Content Analysis," Journal of Communication (1995), p. 96.
19. Ibid., p. 110.
20. James R. Ogloff and Neil Vidmar, "The Impact of Pretrial Publicity on Jurors," Law and Human Behavior 18 (1994), pp. 510-520.
21. Ibid., p. 522.
22. E. Constantini and J. King, "The Partial Juror: Correlates and Causes of Prejudgment," Law and Society Review 15 (1980/81), pp. 9-40. Other studies corroborate the notion that pretrial publicity produces a pro-prosecution/plaintiff bias. See Neil Vidmar and J. Judson, "The Use of Social Science in a Change of Venue Application," Canadian Bar Review 59 (1981), pp. 76-102; J. McConahay, C. Mullin, and J. Frederick, "The Uses of Social Science in Trials with Political and Racial Overtones," Law and Contemporary Problems 23 (1977), pp. 205-229; H. E. Rollings and J. Blascovich, "The Case of Patricia Hearst: Pretrial Publicity and Opinion," Journal of Communication 27 (1977), pp. 58-65; and Mary Dee Tans and Steven Chaffee, 'Pretrial Publicity and Juror Prejudice," Journalism Quarterly 43 (Winter 1966), pp. 647-654.
23. Ibid, p. 36.
24. "With proper instructions and other assistance from judges, jurors in cases that are subject to wide pretrial publicity can put aside their preconceptions and deliver fair, impartial verdicts," according to the consensus of scholars and practitioners at an Annenburg Washington Program-sponsored forum. See Charles E. Anderson, "Trial By Press?" ABA Journal (September 1990), p. 32. Judge Abner Mikva agreed, adding, "A good judge with a good charge to the jury in an appropriately conducted trial can get a jury that is dispassionate and impartial." See Anderson, p. 32.
Other potential pretrial publicity remedies, besides the judge's instructions to the jury, may include "Careful, extensive voir dire, change of venue, importation of a venire from a distant location, trial adjournment, granting both sides additional peremptory challenges, admonition of jurors to be unaware of outside influences, and sequestration." See Martha White, "Fair Trial, Free Press, Can They Coexist?," Human Rights (Fall 1995), p. 6. Lawless offered a slightly different list: "Other steps that a trial judge may take to protect the fairness of the trial include limiting the number of reporters in the courtroom and regulating their conduct, insulating witnesses from exposure to the media, controlling the release of information by police officers, witnesses, and counsel, proscribing extrajudicial statements by any lawyer, party, witness, or court official, and warning the media of the impropriety of publishing material not introduced at trial." See Bleu K. Lawless, "Criminal Procedure Project," Georgetown Law Journal 85 (1997), pp. 1278-1279.
According to O'Donnell, "If the court determines that pretrial publicity may have a prejudicial effect on a potential jury, the court may mitigate these effects through one of four vehicles: 1) continuance, 2) expansion of voir dire, 3) foreign venires, 4) change of venue." See Peter D. O'Donnell, "Pretrial Publicity, Change of Venue, Opinion Polls - A Theory of Procedural Justice," University of Detroit Law Review 65 (1988), p. 177.
25. Martha White, op. cit., p. 6.
26. Geoffrey P Kramer, Norbert L. Kerr, and John S. Carroll, op. cit., p 411. The ineffectiveness of pretrial publicity remedies was demonstrated in a series of seven studies. Sec A. Padawer-Singer, A. Singer, and Singer, "Voir Dire by Two Lawyers: An Essential Safeguard," Judicature 57 (1974), pp. 386-391; A. Padawer-Singer and A. H. Barton, "The Impact of Pretrial Publicity on Juror's Verdicts," in Rita J. Simon (ed.), op. cit.; S. Sue, R. E. Smith, and G. Pedroza, "Authoritarianism, Pretrial Publicity, and Awareness of Bias in Simulated Juries," Psychological Reports 37 (1975), pp. 1299-1302; V. J. Hans and A. N. Doob, "Section 12 of the Canada Evidence Act and the Deliberations of Simulated Juries," Criminal Law Quarterly 18 (1976), pp. 235-253; S. Tanford and M. Cox, "Decision Processes in Civil Cases: The Impact of Impeachment Evidence on Liability and Credibility Judgments," Social Behavior 12 (1987), pp. 345-353; N. L. Kerr, G. P. Kramer, J. S. Carroll, and J. J. Alfini, "On the Effectiveness of Voir Dire in Criminal Cases with Prejudicial Pretrial Publicity: An Empirical Study," American University Law Review 40 (1991), pp. 665-701; and Hedy R. Dexter, Brian L. Cutler, and Gary Morgan, "A Test of Voir Dire As a Remedy For the Prejudicial Effects of Pretrial Publicity," Journal of Applied Social Psychology 22 (1992), pp. 819-832.
27. Carole E. Gorney, 1995, op. cit., p. 24.
28. Ibid., p. 24.
29. Ibid., p. 25.
30. Richard A. Stack, "Establishing the Constitutional Argument for Litigation Public Relations," PR Update (March/April 1994), p. 4.
31. Beverly McLean-Murray, "Public Relations Litigation on the Ethical Front," PR Update (March/April 1994), p. 5.
32. T. Barton Carter, Marc A. Franklin, and Jay B. Wright, The First Amendment and The Fourth Estate: The Law of Mass Media (New York: The Foundation Press, 1991), p. 438.
33. Geoffrey D. Lehman, op. cit., p. 10.
34. Lloyd Chiasson Jr., The Press on Trial: Crimes and Trials as Media Events (Westport, CT: Greenwood Press, 1997), p. viii.
35. John Elsasser, "Lawyers Learning Art of Media Relations," PR Tactics 5 (June 1998), p. 30.
36. Carole E. Gorney, 1995, op. cit., p. 25.
37. Ibid., p. 27.
38. Richard A. Shaffer, "Pretrial Publicity, Media Coverage, and Guilt Attribution," Communication Quarterly 34 (Spring 1986), p. 158.
39. James R. Ogloff and Neil Vidmar, op. cit., p. 510.
40. Ibid., p. 510.
41. Dorothy J. Imrich, Charles Mullin, and Daniel Linz, op. cit., p. 113.
42. John F. Budd Jr., "GUILTY-Until Proven Innocent: Litigation Journalism Tests Public Relations Acumen," Public Relations Quarterly (Summer 1994), p. 14.
43. James E. Lukaszewski, "Managing Litigation Visibility: How to Avoid Lousy Trial Publicity," Public Relations Quarterly (Spring 1995), p. 19.
44. Carole E. Gorney, op. cit., 1995, p. 23.
45. Robert Dreschel, "An Alternative View of Media-Judiciary Relations: What the NonLegal Evidence Suggests About the Fair Trial/Free Press Issue," Hofstra Law Review 18 (1989), p. 1.
46. Jack Doppelt, "Strained Relations: How Judges and Lawyers Perceive the Coverage of Legal Affairs," Justice System Journal 14:9; 15:1 (1991).
47. Carole E. Gorney, 1995, op. cit., p. 26.
48. Ibid., p. 25.
49. M. L. Stein, "Lawyer Says It's OK to Lie to the Media," Editor and Publisher (Aug. 28, 1993), p. 9.
50. Beverly McLean-Murray, op. cit., p. 5.
51. M. L. Stein, op. cit., p. 5.
52. Beverly McLean-Murray, op. cit., p. 5.
53. Carole Gorney, 1993, op. cit., p. C-1.
54. Beverly McLean-Murray, op. cit., p. 5.
55. Ibid., p. 5.
56. John C. Tredennick Jr., "Before You Send That News Release," Law Practice Management 23 (September 1997), p. 31.
57. Ibid.
58. Ibid.
59. Ibid.
60. M.L. Stein, op. cit., p. 35.
61. Douglas A. Cooper, "CEO Must Weigh Legal and Public Relations Approaches," Public Relations Journal (January 1992), p. 40.
62. Adam Shell, "7 Years After Landmark Court Ruling, Professional Firms Look to Marketing," Public Relations Journal (February 1992), p. 10.
63. "Turning Lawyers into Allies," Public Relations Journal (January 1989), p. 24.
64. Kathy R. Fitzpatrick and Maureen Shubow Rubin, "Public Relations vs. Legal Strategies in Organizational Crisis Decisions," Public Relations Review 21 (1995), p. 30.
65. Adam Shell, op. cit., p. 10.
66. Scott Cutlip, "The Invasion of Public Relations' Domain by Lawyers and Marketers," IABC Communication World (January 1992), p. 27.
67. Cipalla, op. cit., p. 35.
68. Chrissy Dukeman, "The Media Trials of Timothy McVeigh's Attorney," Public Relations Tactics (December 1997).
69. Douglas A. Cooper, op. cit., p. 40.
70. Kathy R. Fitzpatrick, "Ten Guidelines for Reducing Legal Risks in Crisis Management," Public Relations Quarterly (Summer 1995), p. 33. Corbin echoed Fitzpatrick's analysis: "In the past, chief executives often deferred to their attorneys in dealing with such crises, but many now depend on public relations advice as much as legal counsel. Although lawyers and public relations counselors serve two different functions, and have different approaches, these two forces can contribute importantly to the success of executive management when they function synergistically. There is, and should be, a natural give-and-take dynamic between lawyers and public relations counselors, especially on major issues." See Jeffrey D. Corbin, "Lawyers and Us: A Synergistic Relationship," Public Relations Quarterly 42 (Winter 1997-98), p. 15.
71. Stanley A. Twardy, "Attorneys and Public Relations Professionals Must Work Handin-Hand When Responding to an Environmental Investigation," Public Relations Quarterly (Summer 1994), p. 15.
72. Richard Stack, Courts, Counselors and Correspondents: A Media Relations Analysis of the Legal System (Littleton, CO: Fred B. Rothman & Co., 1998), p. 101.
73. M. L. Stein, op. cit., p. 10.
74. Ibid.
75. Ibid.
76. Geoffrey D. Lehman, op. cit., p. 29.
77. Charles S. Clark, op. cit., p. 825.
78. Dorothy J. Imrich, Charles Mullin, and Daniel Linz, op. cit., p. 113.
79. Carole E. Gorney, 1995, op. cit., p. 23.
80. Associated Press, "Lawyer Tries to Humanize McVeigh's Image," Statesboro Herald (June 26, 1995), p. 4.
81. Chrissy Dukeman, op. cit.
82. "Legal, Perception Battles Drive Dow Corning's Communication Strategy," PR News 51 (May 15, 1995), p. 1.
83. Charles Mullin, Dorothy J. Imrich, and Daniel Linz, "The Impact of Acquaintance Rape Stories and Case-Specific Pretrial Publicity on Juror Decision Making," Communication Research 23 (February 1996), p. 130.
84. Robert Hardaway and Douglas B. Tumminello, "Pretrial Publicity in Criminal Cases of National Notoriety: Constructing a Remedy for the Remediless Wrong," Internet Publication, 1997, p. 1.
85. Charles A. Whitebread and Darrell W. Contreras, "Free Press vs. Fair Trial: Protecting the Defendant's Rights in a Highly Publicized Trial," American University Law Review (October 1996), p. 1.
86. Richard A. Shaffer, op. cit., p. 154.
87. Beverly McLean-Murray, op. cit., p. 5.
88. Val E. Limburg, Nicholas P. Lovrich, Charles H. Shelton, & Erik Wasmann, "How Print and Broadcast Journalists Perceive Performance of Reporters in Courtroom," Journalism Quarterly 65 (1988), p. 626.
89. Kinney Littlefield, "TV Confesses Sins in Lewinsky Coverage," Orange County Register (Feb. 1, 1998), p. D-10.
90. Dirk C. Gibson, "Litigation Public Relations: Fundamental Assumptions," Public Relations Quarterly (Spring 1998).
91. Richard Stack, 1998, op. cit., p. xxii.
92. Ibid.
Dirk C. Gibson is an assistant professor in the Department of Communication & Journalism at The University of New Mexico and Mariposa E. Padilla is a legal assistant in Albuquerque, New Mexico.
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| Comment: | Litigation public relations is an emerging crisis communication management subspecialty of enormous contemporary significance. |
|---|---|
| Author: | Gibson, Dirk C.; Padilla, Mariposa E. |
| Publication: | Public Relations Review |
| Geographic Code: | 1USA |
| Date: | Jun 22, 1999 |
| Words: | 8313 |
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