For most class-action defense lawyers, dealing with the press is, while rare, a necessary evil. Plaintiffs’ firms have taken to issuing press releases whenever they file a complaint. However, for defendants, the media is usually a separate front, one that moves much faster than discovery, and one that offers more perils than payoffs. Moreover, outside of expensive PR firms, there are few sources of advice on how to deal with a case that attracts press attention.
Enter Kendall Coffey, a Florida lawyer who has been involved in some of the more high-profile cases of the last few decades, including the negotiations surrounding Elian Gonzalez and the infamous Bush v. Gore. His book, Spinning the Law: Trying Cases in the Court of Public Opinion, discusses how to litigate high-profile cases.
For the most part, Coffey’s book is not a perfect fit for civil litigants. The book primarily focuses on high-profile criminal trials, since those tend to receive the most press coverage. And it relies heavily on Coffee’s own experience (which he does relay well), and a series of cutesy aphorisms ("Defense attorneys will ruffle feathers to keep their clients from becoming a cooked goose") that don’t convey a lot of information.
However, the concluding chapter, A Media Primer for Spinners, offers an excellent introduction to litigating cases that have a press component. Among the lessons Coffey imparts there:
Press coverage can influence judges.
The ears of judges often have a chronic buzzing, particularly because they are not prohibited from following the news coverage of their cases. The law presumes that judges will ignore the media monsoons drenching the courthouse and decide every legal issue as if nary a drop had fallen. If we assume, though, that judges are real people who live in the real world–sometimes a world of judicial elections–it follows that they are acutely aware of community feelings about media-intensive cases.
In other words, the more press coverage of a given legal dispute, the more information outside the pleadings that the judge will likely absorb. And since judges are susceptible to rhetoric and spin just like other people, press coverage likely influences their rulings. This is certainly something that Richard Scruggs relied on in his PR strategy for his Katrina class actions.
Press coverage can generate fact development.
Good press is also a recruitment poster for lawyers, experts, and even fact witnesses. Winnability magnetizes cases. Lawyers and experts may be mercenaries, but even hired guns prefer to be retained by winners. For the top professionals who can pick and choose their cases, many prefer a cause that is acclaimed to one that is being acclaimed to one that is being defamed. Even fact witnesses, the main determinant of most cases, can be more effective if they believe their testimony will be featured in a success story. Just as many prefer to join the team with all the cheerleaders, horrible publicity can impair recruitment efforts
Coffey is not the first to note that press coverage can encourage fact witnesses to step forward.  But it’s a point that bears repeating. Moreover, press coverage can also help class action defendants develop facts. Once class members begin discussing newsworthy cases, they often provide lawyers with variations that demonstrate that a class may not be appropriate.
Getting press coverage can be as simple as filing reporter-friendly pleadings.
Courthouse files largely immunize their contents from the laws of defamation, so reporters rely overwhelmingly upon court papers and hearings. As a result, press-savvy lawyers craft court papers that not only nourish procedural requirements but also feed the press.
In high-profile cases, or even ones where just a few reporters are clearly paying attention, filing a pleading that’s written in plain English, with clear, emotional themes, can pick up press coverage. Plaintiffs often exploit this in complaints, but there is no reason that defendants cannot use the same tactic.
Talking points are not a bad thing.
Some legal strategists anticipate the initiator’s huge advantage by preparing their own legal document with their key facts. While the defense will rarely have enough time to fully respond in writing to the just-filed accusatory document, first responders should consider something as basic as a nation for a status conference–a request to discuss general issues about court scheduling–loaded with defendants’ best facts.
While Coffey suggests motions for status conferences as a means of getting a theme out to defeat a case relying on publicity, if the facts are strong enough, one can also just buy an ad refuting the allegations, much like Taco Bell did earlier this year.
Lawyers still need to be careful.
[T]he high-profile case is no place for amateurs. Attorneys with minimal media exposure should not handle media relations without true professional help. As a compromise, outside press consultants should strategize regularly, but a client’s regular spokesperson or a media-savvy member of the legal team should handle the communication. … Bear in mind, though, that communications with a press specialist may not be privileged from subpoenas, and care should be exercised, particularly when exchanging correspondence and email.
The biggest problem with a campaign of "spinning" is that the lawyer doesn’t control the news outlets. Reporters are–for the most part–pretty bright, and conscientious enough to not just take one side of a story. So overtly trying to control a story often backfires. And leaving a paper trail of one’s attempts only makes matters worse.
In general, I’d recommend Spinning the Law. While the meat for class-action lawyers comes at the end, he’s an engaging writer, which makes the journey fun on its own.