Comm 3310
Media Savvy Litigation
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Brett Shipp - Southlake
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Brett Shipp - Landfill
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Brett Shipp - Prime Prep
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Gentile v. State Bar of Nevada
“An attorney’s duties do
not begin inside the
courtroom door. He or
she cannot ignore the
practical implications of
a legal proceeding for
the client.”
-Mr. Justice Kennedy
U.S. District Judge Lewis Kaplan
Southern District of New York
“…dealing with the
media in a high-profile
case probably is not a
matter for amateurs.
“…professional public
relations advice was
needed.”
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The Internet
Electronic Filing
Aggregators
Blogs
Main Stream Media
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Electronic Filings
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Twinkie Gate
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What Makes a Case
Newsworthy?
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A hard luck story
Allegations of illegal conduct
High profile litigants
Unusual or humorous claims
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NBC Today Show Bra Case
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Divorce case
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Tricia Smith NBC
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What Makes a Case
Newsworthy?
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Allegations of discrimination
A situation that could impact a large number of
individuals or companies or illustrates a larger issue
An attorney who likes to try their cases in the court
of public opinion
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Gloria Allred
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News Conference
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Social Media Legal Issues
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Defamation and Privacy Torts
Intellectual Property Infringement
Trade Libel
Securities Fraud
Gun Jumping
Selective Disclosure
Forward-looking statements
Employment Issues
User Privacy
Discovery
HIPAA
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Ethical Considerations
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Rule 3.07 Texas Disciplinary Rules
of Professional Conduct
(a) In the course of representing a client, a lawyer
shall not make an extrajudicial statement that a
reasonable person would expect to be disseminated
by means of public communication if the lawyer
knows or reasonably should know that it will have a
substantial likelihood of materially
prejudicing an adjudicatory proceeding. A lawyer
shall not counsel or assist another person to make
such a statement.
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Rule 3.07 Texas Disciplinary
Rules of Professional Conduct
“…the likelihood of a violation increases
if the adjudication is ongoing or
imminent”
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Not Everyone Follows the
Rules
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20/20 Anna
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How to Respond Within
The Rules
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Hardin Interview
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Commentary
Because no body of rules can
simultaneously satisfy all interests of a fair
trial and all those of free expression, some
balancing of those interests is required.
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WHAT WILL GENERALLY PUT THE
LAWYER ON THIN ICE
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A statement about the character, credibility,
reputation or criminal record of a party…or
the expected testimony of a party or witness.
A statement about information the lawyer
knows or reasonably should know is likely to
be inadmissible as evidence in a trial and
would if disclosed create a substantial risk of
prejudicing an impartial trial.
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WHAT WILL GENERALLY PUT THE
LAWYER ON THICK ICE
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The general nature of the claim or defense;
Information contained in a public record;
That an investigation of the matter is in progress,
including the general scope of the investigation,
the offense, claim or defense involved;
Except when prohibited by law, the identity of the
persons involved in the matter; and
The scheduling or result of any step in litigation.
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The Right Way
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Anticipate controversial issues
Prepare responses in advance with review
by legal team
Act quickly
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During Trial
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Help reporters follow evidence and case
storyline
Educate reporters concerning trial
developments and procedures
Provide background information for reporters
who visit periodically, but do not stay for the
whole trial
Monitor coverage and correct misinformation
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Common Misconceptions
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Issue only involves high profile criminal cases.
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Ethics rules require saying “No comment.”
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There is no benefit to the client to comment on legal
issues.
Saying “No Comment” is the best way to protect
your client’s interests.
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Common Misconceptions About
Litigation Coverage

The media is interested in the legal issues.
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You can’t respond if you don’t know everything.
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You will get a fair shake if you don’t respond.
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Responding will destroy the attorney-client privilege.
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Responding will get you in trouble with the court.
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The Right Way
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Respond immediately to inquiries.
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Establish a rapport with reporter.
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Understand motivation for story.
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Establish client’s role in story.
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Provide response before a major investment is made in story.
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Provide backup information.
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Enron
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Enron: When Everything Turns Against You
Whistleblowers
August 22, 2001
Lay meets with Watkins
Initial Investigation
Report
October 8, 2001
Report on Watkins Investigation to
Audit Committee
The Press
October 17, 2001
Wall Street Journal Stories Begin
SEC Inquiry
October 22, 2001
Enron reports SEC inquiry
Auditor Conflict
November 2, 2001
Andersen reverses advice
Restatement
November 8, 2001
Enron files restatement with SEC
Bankruptcy
December 2, 2001
Enron files for bankruptcy and
announces layoffs
Department of Justice
January 8, 2002
Announcement of criminal
investigation
Second Investigation
February 2, 2002
Powers Report issued, critical of
executives, directors, and
counsel
Congressional
Testimony
Indictments begin
February 7-12, 2002 Executives appear before
Congress, Skilling testifies
March 2002
Andersen indicted
Media Before Enron’s Fall: Triggers Stampede
Enron Common Stock Price and Volume
10/17: WSJ articles Begin
Source: Dow Jones
Market Fears "Death Spiral"
Worries and rumors about Enron's financial strength could be found in the stock
market Wednesday [10/24/01]. Goldman Sachs analyst David Fleischer said he
heard people voice concerns about a possible "death spiral" in which
increasing credit concerns about Enron would decrease the number of people
willing to do business with the company, which would in turn weaken its
finances and lead to further business reductions.
Enron is facing a problem with “trust and credibility. It's not easy to regain
something as basic as trust,” he said.
DX 600
Media Frenzy After Fall of Enron
UNEVEN JUSTICE
By BETHANY MCLEAN AND PETER ELKIND
February 04, 2004
“Today, Martha Stewart is making headlines all by herself, her
criminal trial a staple of the nightly news programs. Kenneth
Lay, meanwhile, remains safely ensconced in his multimilliondollar Houston condominium. More than two years after Enron
declared bankruptcy, he still hasn't been charged with
wrongdoing.”
“Shouldn't he have to face a criminal trial for his role in Enron's
fraud? Prosecutors could be just as "creative" in finding ways to
charge Mr. Lay as they have been with Ms. Stewart. Otherwise,
the perverse lesson will be that the legal system rewards
ignorance but punishes those who dare to proclaim their
innocence.”
UNEVEN JUSTICE
By BETHANY MCLEAN AND PETER ELKIND
February 04, 2004
“Today, Martha Stewart is making headlines all by herself, her
criminal trial a staple of the nightly news programs. Kenneth
Lay, meanwhile, remains safely ensconced in his multimilliondollar Houston condominium. More than two years after Enron
declared bankruptcy, he still hasn't been charged with
wrongdoing.”
“Shouldn't he have to face a criminal trial for his role in Enron's
fraud? Prosecutors could be just as "creative" in finding ways to
charge Mr. Lay as they have been with Ms. Stewart. Otherwise,
the perverse lesson will be that the legal system rewards
ignorance but punishes those who dare to proclaim their
innocence.”
Bethany McLean, Fortune staff writer and author
of “Smartest Guys in the Room: The Amazing
Rise and Scandalous Fall of Enron,” July 9, 2004
online chat.
“[A] few things are clear. Enron was a
fraud, and Ken lay [sic] was the company’s
CEO for almost all of its history. I think it
would be a travesty if he could just proclaim
his cluelessness and walk away, leaving
junior people to bear the consequences of a
culture he created.”
Loren Steffy, Task Force Needs to Refocus After
Wishy-Washy Verdict, Houston chronicle, July
22, 2005 at Business, pg 1.
“From the beginning, the Enron
prosecution has had one true measure of
success: Lay and Skilling in a cold steel
cage.”
February 27, 2006 Excerpt from Loren Steffy’s
Commentary on his Houston Chronicle Blog,
“Remember the Lies.”
“The problem is that Enron executives,
including Lay and Skilling, repeatedly
misled investors. You can hear that on the
conference calls played in court. You can
see that in the company’s financial
statements.
Media Impact on Jury
Jurors’ questionnaire responses:
“I
believe that the rape of Enron and its
[employees] and stockholders could not have
happened without their knowledge.”
“I
find it morally awful that these people are still
running loose. I believe this should be a nice
short trial, all of them go to jail, and not a country
club.
“The
government should hang Ken Lay and his
underlings.”
“These
guys are guilty, they don’t even deserve
a trial. Let all the people they ruined have at
them.”
Houston Jury Pool Statistics
Over 86% have heard of or read about Enron-related cases, and
one out of every eight jurors has chosen to read an Enron-related
book or see an Enron-related movie.
Exactly 80% of the jurors, or 224 out of 280, expressed
preexisting negative views toward defendants, indicated they had
opinions about the perceived role defendants played in Enron’s
collapse, or expressed anger about what happened to Enron’s
“victims.”
60% have an opinion about the cause of Enron’s bankruptcy, and
nearly all of these believe Enron was brought down by “greed,”
“accounting fraud,” “lie[s],” “scheming to increase profits,” and
other “criminal” and “illegal activities” by upper management.
Linda Lay Interview: How Not to Respond
New York Times Article: How to Respond
New York Times Article: How to Respond
By KURT EICHENWALD
Published: February 09, 2003