What role can the media play in courtroom strategy? Or, to put it differently, how best can counsel advocate outside of the courtroom, particularly in publicly prominent trials?
Having had the good fortune of acting as counsel on many high-profile Canadian cases during my career, starting conspicuously with acting for the chief prosecution witness before the Patti Starr Commission of Inquiry, a.k.a. the Houlden Commission, in 1989, I have had a front-row seat to the interplay between media and counsel in such disputes.
Ignoring the media is not an option. Not a good one anyway. Choosing to not respond to media inquiries should be a deliberate decision rather than one of invariable policy. Otherwise, the media will define your case and your client to the public. That other court — the court of public opinion — must always be kept in mind.
Dan Abrams, the chief legal analyst for ABC News, once told a story about a friend working on a high-profile case who was concerned about being seen as a “media whore.” Abrams joked in response that, “There’s got to be something between whoring and abstinence.”
Judges, however skilled and neutral, are not immune to arguments that are made about a case outside of the courtroom, particularly when public policy is a factor in determining the law itself. That occurs more often than most realize and plays a particular role in employment law, where courts have enunciated that the law should be interpreted to redress the imbalance of power between employees and employers, particularly at the time of dismissal when employees are at their most vulnerable. Courts have explicitly said that, including the Supreme Court of Canada in Machtinger v HOJ, which I successfully argued relatively early in my career (1992).
In cases that are going to attract public interest — or if my client wants that attention — I draft my pleadings and other public filings so as to be accessible to journalists. My goal is to essentially write the journalists’ stories for them, with clear themes, headlines and catchy phrases so that it is easy to grasp why that story is of broad interest and why my client is the aggrieved and righteous party.
Particularly if a case is technically complicated, it is important to make it easily ascertainable to members of the media covering the case. Otherwise, buffeted daily with different pitches, the media’s interest will drift elsewhere. Such pleadings will not be drafted precisely as I was instructed to in law school and early practise. But what is sacrificed in legal rigour is far more than made up for in protecting the client’s brand.
And that is what it is fundamentally about. A case will attract media attention either because it is inherently newsworthy, in which case the media will come on their own in search of comment, or because there is an advantage to your client in the case receiving wider coverage, in which case the media must be courted. That may be to satisfy a client’s need for public vindication, to rehabilitate their reputation or, if their story is truly righteous and the employer a moral reprobate, to put pressure on the company to settle to reduce the damage its brand will otherwise suffer.
The same applies when acting for employers besmirched with allegations of public calumny such that the damage of the allegations exceeds the damages being sought in the lawsuit. The natural temptation, in such circumstances, is to settle. But the better option may be to expose the plaintiff’s comparative villainy so that the reputational damage to them dramatically exceeds that of your client and your client is seen as the victim. Just look at how counsel for Johnny Depp turned that case around so that, not only did he recover large amounts of money but he went from being a largely forgotten actor to a sort of public hero in the eyes of many.
If you have a client in public trouble for some wrongdoing, one tactic might be to find others more culpable and attempt to make those companies the subject of the story, diverting public attention from your own.
You should understand that the media do not take kindly to being attacked. After all, look what happened to America’s two Michaels, Cohen and Avenatti. Their downfalls may not have been caused by their attacking the media covering them, but the press certainly took up their wrongdoings with particular enthusiasm and ensured their plight was splashed everywhere.
Lawyers and clients have become interchangeable in the public mind so any lawyer should think carefully before taking on unpopular causes/cases.
Just last week, Paul Clement and Erin Murphy, two partners at the prominent Wall Street firm Kirkland and Ellis, said that the law firm offered them a “stark choice”: Drop their gun clients or withdraw from the firm after winning their U.S. Supreme Court case permitting people to carry guns outside of their homes. As they put it in a Wall Street Journal op ed, “There was only one choice: We couldn’t abandon our clients simply because their positions are unpopular in some circles.”
Of course, they will likely now make more money at their new firm after that win than they would have if they had remained. It is almost certain that Kirkland and Ellis required this choice because of pressure on them from other clients.
When I veered from my normal lane in 1990 and assisted Yolanda Ballard in her fight involving the Harold Ballard estate, I had more than one corporate labour client lean on me hard to drop it because of their view of my client. The concept that lawyers should take up any cause however unpopular has become an almost historic relic. Besides, I enjoyed Yolanda and my father socialized with her and Harold.
Lawyers should also remember that they are agents of their clients. Depp was successfully sued for $2 million in his case against Amber Heard as a result of comments made by his lawyer, who told the Daily Mail in 2020 that her claims were a hoax. If he had not succeeded in recovering $15 million in his own libel case against Heard, that judgement would have received considerable play as well as affecting him financially. He might have a claim against his lawyer for that amount if that lawyer did not provide an appropriate warning.
Should your client sue the media if they provide it with legal cause to do so? That, too, is a strategic decision. If they are not harming your client, such a suit could be an unfortunate distraction. But, if they are, it might make sense to do so, so as to concretely demonstrate your client’s outrage and to inform the public that the libel is false. But if you are going to, you should proceed with the claim vigorously so it is not seen by the public as an empty gesture meant to intimidate rather than having an honest belief in your rectitude.
Near the beginning of the Patti Starr case, a lawyer for one of the opposing parties threatened my very credible 65-year-old client as she was returning from the washroom about why it would be in her interest to drop the whole thing. I had a decision to make. I could have raised it immediately before Justice Houlden in open court with all the media present and obtained some strategic advantage but it would have inevitably derailed the entire proceeding for some time. I chose to do nothing with the information. Similar judgments arise often in such cases.
Got a question about employment law? Write to Howard at [email protected]
Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.
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