April 15, 2015 – An Associated Press reporter covering central Florida, Mike Schneider is no stranger to the media frenzy. He covered two of the most high-profile cases in recent history: the criminal trials against Casey Anthony and George Zimmerman.
Anthony was found not guilty of murder in the death of her two-year-old daughter, Caylee. Zimmerman escaped murder charges in the shooting death of teenager Trayvon Martin. In both cases, the world got to know the lawyers involved.
“I got the experience of watching lawyers do their jobs under very intense scrutiny,” said Schneider, who noted that both trials lasted more than a month. He said the lawyers, mostly the defense attorneys, often communicated with the press before trial.
Prosecutors would publicly release discovery documents, Schneider said, and the defense attorneys would speak publicly to refute or clarify certain information.
“It was up to the defense attorneys to respond to anything that put their client in a bad light. These statements were part of the ongoing storyline,” said Schneider, who essentially camped out at the courthouse steps during these month-long trials, along with countless other news outlets. “The public gets immersed in these stories.”
Dealing with the Media in High Profile Cases: A Practical Tip Sheet
Before any media plan is devised, understand the applicable rules of ethics and law in the relevant jurisdictions regarding media relations.
Select an official spokesperson and do not allow anyone else to speak to media, including your client. All media requests should be directed to the official spokesperson.
Media Coverage
When leaving the courthouse, you can expect a “media blitz.”
Avoid rushing past reporters and cameras with your head down. It makes you look like you’re hiding something or — even worse, guilty.
Do not answer questions that you are not prepared to answer, just to please the media.
Always take the high ground. Be positive and forward thinking.
Be polite and confident. Act like this is your show and you are the one in charge.
Never say “no comment.” Rather, calmly and politely state that you are not in a position to answer the question(s) at this time and offer to give a statement in the future.
Avoid legal jargon or inflammatory language. Do not react defensively or reactionary. Be factually accurate.
Develop three or four concise and catchy, one-sentence messages and do not deviate from those messages. Your messages should not convey information that you would not say in open court.
Be mindful of body language.
Explain court proceedings or other helpful information to reporters. Alternatively, offer copies of pleadings or recent briefs that explain your client’s position.
Keep your client close by. Don’t let the client step away from spotlight. If so, reporters will leave attorney and follow the client to ask questions.
Sound bytes on local news: Your comments will be limited to 15-20 seconds so be concise, easily understood, and accurate.
Have an exit strategy. Devise a plan to end reporters’ questions. Plan your last word.
Keep reporters apprised of schedule changes in the trial.
Scheduled Interviews
Always assume that you are “on the record.”
Determine each media outlet’s trends or biases.
Anticipate the types of interviews and quotes you want, and determine which media outlets will not be granted interviews.
Learn habits and prejudices of particular reporters, their interview techniques and angles.
Grant interviews to reporters whose work fits the story and who can be sympathetic to your client.
Ask to review any and all of your quotes before they appear in the story to check for errors and omissions.
Keep your client informed of requests for interviews.
Do not ignore a reporter’s telephone call. It’s not advantageous to inform the public that the attorney was not available for comment or did not return a call. At least contact the reporter to say why you are unable to make a statement at this time.
If you do not know the answer to a reporter’s question, state that you do not know the answer but that you will try to get it in time for the reporter’s deadline.
Take time to explain how the legal system works. In the absence of legal training, reporters do not understand concepts such as summary judgment, etc. This will go a long way in cultivating a good relationship with a reporter.
Assist reporters with reasonable requests in obtaining court documents.
Respect the reporter’s deadlines and time limitations.
This checklist was reprinted with permission from The Remsen Group in Atlanta, Georgia. Checklist created by authors Susan Maynor and John Remsen Jr.
Getting the Scoop
Schneider will join other panelists this summer for a program called “Ethical Implications of High-Profile Cases in the Media” at the State Bar of Wisconsin’s Annual Meeting and Conference (AMC), June 25-26 at the Grand Geneva Resort & Spa in Lake Geneva.
Schneider will provide a journalist’s perspective on covering high-profile trials and other court proceedings in both civil and criminal cases. And he’ll note the impact that press coverage can have on communities, especially when social media fuels the fire.
“Public perception is powerful in this information age,” Schneider said. “And now with social media, we can openly see the public’s response.”
“Social media feeds the media attention and the frenzy of coverage, but it’s also a tool for lawyers to sort out jurors,” said Schneider, noting publicity can lead to requests for venue changes or disqualify potential jurors who have posted things about the case.
“Sometimes I’m astounded we get a jury for any case,” said Anne Schwartz, the director of communications and public affairs for the Wisconsin Department of Justice who broke the Jeffrey Dahmer story as a Milwaukee Journal reporter in the 1990s. Schwartz is another panelist at the AMC program. “You have to go some lengths to not read or hear about a high-profile case given all the different outlets out there. And it’s not like they’ve only heard the facts. They have heard everybody’s version.”
Schwartz notes that no one had cell phones when the Dahmer case broke. “I think about how differently the coverage would be if there was social media back then.”
She had received a call just before midnight on July 22, 1991.The anonymous police department insider said two cops found a human head in someone’s apartment. Schwartz spent the night confirming the facts and circumstances with sources.
The next morning, when Schwartz’s story came out, the world met Dahmer, who later confessed to killing 17 boys and young men. The Milwaukee Cannibal, as he was called, remains an infamous story that Wisconsinites would rather soon forget.
“I continue to be interviewed about the Dahmer case 24 years later, but I’m never asked to speak about it in Wisconsin,” said Schwartz, who wrote a book about the case, “The Man Who Could Not Kill Enough: The Secret Murders of Milwaukee’s Jeffrey Dahmer.”
Schwartz will discuss the Dahmer case and offer knowledge on public relations, helping lawyers understand the purpose and effect of storytelling and strategic communications.
“Different communication tools allow you to get your message across and share it, and that’s one of the things I’m going to talk about this summer,” Schwartz said.
But Schwartz will also discuss dangers in the information age. The pressures of immediacy can create the opportunity for misinformation, she said. “In the old days you had to have two sources to confirm something before you could say that it was true.
“There are still reporters who do it right, who want to tell the story the right way. But with social media, everybody has a piece of it, and they share it the minute they think they know it, not just the minute they know it for sure. Then that misinformation is out there.”
“Also, the media wants information now,” Schwartz said. “The longer you take to get out there with it, the longer you are creating a vacuum for anything to come out.”
In addition, Schwartz said media reports can impact witnesses. “If a witness is sure they saw something but the news reports something contrary to what they saw, they might even change their story, thinking they must be wrong,” Schwartz said. “With a lot of publicity, you may also have witnesses who decide they don’t want to come forward.”
Media and Ethics: The Lawyer’s Duties and Obligations
Given the thirst for immediate information, Milwaukee attorney Ray Dall’Osto says lawyers have a duty to educate the press and should respond to press inquiries on the client’s behalf. But, he notes, there are significant limitations when giving information about the case.
“Freedom of the press is an important bedrock of our open and Democratic society, and the press has a job to do,” said Dall’Osto, a litigator at Gimbel, Reilly, Guerin & Brown.
“At the same time, attorneys have certain legal and ethical duties that limit what they can say publicly,” Dall’Osto said. “The law is pretty clear that lawyers should not be talking about the specifics of a case beyond what is available in the public record at the time.”
Dall’Osto, another scheduled panelist at the AMC program, has handled many high-profile cases in his career. He said lawyers must be mindful of a specific ethics rule on “trial publicity,” confidentiality, and other rules that limit what lawyers can say publicly about their clients' cases.
For instance, Wisconsin Supreme Court Rule (SCR) 20:3.6 states that lawyers shall not make public statements the lawyer knows or reasonably should know “will have a “substantial likelihood” of materially prejudicing an adjudicative proceeding in the matter.”
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Under the rule, statements that are likely to have a prejudicial effect include statements about a person’s credibility, witness identities, the existence of confessions, the results of tests or examinations, or the existence of evidence likely to be inadmissible.
While lawyers may state the claim or defense and may comment on information contained in public records, they can’t say anything that could taint the jury pool.
Dall’Osto points to the seminal U.S. Supreme Court decision in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), in which the State Bar of Nevada instituted disciplinary proceedings against a defense lawyer for statements he made at a press conference.
The press had been covering a juicy case in Las Vegas, pointing to defense attorney Dominic Gentile’s client as the main suspect in the disappearance of cocaine and cash from a safety deposit box that police were using in an undercover operation. Among his comments, Gentile suggested that corrupt police officials were the actual culprits.
The State Bar of Nevada sought to discipline Atty. Gentile, saying that his comments had a likelihood of materially prejudicing the jury pool. Gentile said that his statements were necessary to address weaknesses in the information provided to the press.
Ultimately, the U.S. Supreme Court ruled in favor of Gentile because a “safe harbor” in Nevada’s ethics rules said lawyers could discuss the general nature of the claim or defense, and Gentile had tried to do that. However, the Supreme Court affirmed that lawyer speech can be restricted.
No Comment?
If lawyers risk sanctions for speaking publicly, why do it at all? Isn’t “no comment” a sufficient answer to keep the lawyer clear of any ethical violations? Dall’Osto says no.
“A lawyer who does not speak when approached by the media and does not give them information does so at great risk,” Dall’Osto says. “The story will run with or without you.”
Dall’Osto says lawyers have an obligation to educate reporters in order to help them get their facts straight. And the lawyer’s refusal to communicate with the press could backfire, since the “no comment” response may suggest there’s something to hide.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
“For me, I engage the press so they get the story right,” Dall’Osto said. “I’ll send them pleadings or briefs and take interviews whenever possible, because I want to make sure the facts and the law that is reported is correct and not suggestive or misleading.”
In addition, lawyers have an obligation to shield clients. “I don’t want my clients peppered with questions. Anyone who gets put on the spot could become defensive. Lawyers have to advocate for clients both inside and outside the courtroom.”
When reporters are asking questions that Dall’Osto cannot answer, he simply reminds them of his ethical obligations. “I just inform them that I can’t talk about it, based on my ethical obligations. I’m not withholding or playing favorites, that’s just the rule.”
And Dall’Osto tries to prepare his clients for enterprising reporters who may try the ambush approach. “I make sure the client knows what’s going on at all times, have them direct all questions to me, and make sure they tell me if contacted by the media before they make a statement,” he said.
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