Should Trial Counsel Speak to the Media?

I’m often asked whether litigation counsel should serve as a media spokespeople when they are handling legal matters of public interest.  As in most things, the answer is “It depends.”  Here are a few key considerations:

  • Is the key message about the legal proceedings, or about the business? If the former, perhaps counsel is a good choice.  If the latter, go with someone else.  Choosing a lawyer as a spokesperson reminds your audience that you’re involved in legal proceedings.
  • Are you close to trial? If so, recall that lawyers are limited in their statements by Tex. Dis. R. Ethics 4.07 so as not to prejudice potential jury proceedings.  The Supreme Court has indicated that the clients themselves are not so limited.  Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425, 428-35 (Tex. 1998).  And on a more practical note, your trial lawyer’s focus likely needs to be on the courtroom, not the media.  But keep in mind there are some legal concepts that only a lawyer will be able to explain.
  • Whose reputation are you trying to promote? Sometimes lawyers will advocate to be the spokesperson for self-marketing purposes.  While there is nothing wrong with being associated with a big trial or deal, keep in mind your key messages and intended audiences so as to not confuse your goals with the goals of your lawyers.  And keep in mind what kind of media profile your lawyer has, which is likely built around the representation of other clients who may or may not be similar to you.
  • What is the long game? Do you intend to try to positively position your company’s profile with other stories either before or after trial?  Perhaps maintaining a single spokesperson throughout the campaign is a good idea, and a lawyer might not be the best choice of spokesperson.

Oil Prices are Falling: Get Ready for Litigation

Oil prices are falling and deals are getting scrapped.  As was the case with the last several business cycles, litigation will undoubtedly ensue.  The old-timers refer to this as “drilling at the courthouse.”  Here are five tips for preparing for possible litigation:

  1. Issue a litigation hold for your documents and emails. Tell everyone in the company –either by email or hard copy document – to preserve and segregate their documents and emails pertaining to the dispute.  Even better, give them a list of key terms and people so that they are assured of complying.  Ask your IT department to affirmatively search for those terms and people in the systems.
  2. Consult outside counsel early, even if you don’t know that you’ll file suit or be sued. Starting early will give you more time to select appropriate counsel, plus give her or him time to prepare.  Consider whether your current counsel may or may not be appropriate for the situation at hand.  Factors that can impact your choice:  venue, legal substance, liability exposure, conflicts of counsel.
  3. Think about who will be a witness – on your side, from the outside, and from the opposing party. For those witnesses under your employment, or who are friendly to you, have counsel interview them to capture their basic memories of facts and their impression of the matters at issue.  An early assessment of whether you have good witnesses or not will be key to your determination of whether to bring, or how to defend, a lawsuit.
  4. Consider arbitration. Whether or not your agreement has an arbitration clause, consider whether it might help.  Arbitration is still far quicker than a court case, and all of those months and years spent slogging through court litigation take a toll – not only in outside counsel fees, but also on your company’s ability to tend to its regular business.  Plus, arbitration is confidential and court cases are not.  Consider entering into an agreement to arbitrate if you don’t have one.
  5. If the public will care about your dispute, think about what you’ll say publicly and how you’ll say it. Many cases don’t trigger public interest, but many do – because of who is involved, how much money is at stake, or because the facts are exciting.  If you’re a plaintiff, think about whether advance publicity will enhance your outcome (but always be mindful of your ethical duties, if you’re a lawyer).  If you’re a defendant, you’d better have something more to say than “no comment” when the media call – and that call may come as soon as plaintiff’s counsel promotes the story or files the lawsuit.