1 Comm 3310 Media Savvy Litigation. 2 Brett Shipp - Southlake 2

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Brett Shipp - SouthlakeBrett Shipp - Southlake

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Brett Shipp - LandfillBrett Shipp - Landfill

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Brett Shipp - Prime Brett Shipp - Prime PrepPrep

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Gentile v. State Bar of Gentile v. State Bar of NevadaNevada

“ “An attorney’s An attorney’s duties do not begin duties do not begin inside the courtroom inside the courtroom door. He or she door. He or she cannot ignore the cannot ignore the practical implications practical implications of a legal proceeding of a legal proceeding for the client.”for the client.”

-Mr. Justice Kennedy-Mr. Justice Kennedy

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U.S. District Judge Lewis U.S. District Judge Lewis KaplanKaplanSouthern District of New YorkSouthern District of New York

“… “…dealing with the dealing with the media in a high-media in a high-profile case probably profile case probably is not a matter for is not a matter for amateurs. amateurs.

“…“…professional professional public relations public relations advice was needed.”advice was needed.”

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The InternetThe Internet

Electronic FilingElectronic Filing

AggregatorsAggregators

BlogsBlogs

Main Stream Media

Main Stream Media

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Electronic FilingsElectronic Filings

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Twinkie GateTwinkie Gate

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What Makes a Case What Makes a Case Newsworthy?Newsworthy? A hard luck storyA hard luck story Allegations of illegal conductAllegations of illegal conduct High profile litigantsHigh profile litigants Unusual or humorous claimsUnusual or humorous claims

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NBC Today Show Bra NBC Today Show Bra CaseCase



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Divorce caseDivorce case



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Tricia Smith NBCTricia Smith NBC

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What Makes a Case What Makes a Case Newsworthy?Newsworthy? Allegations of discriminationAllegations of discrimination A situation that could impact a large number A situation that could impact a large number

of individuals or companies or illustrates a of individuals or companies or illustrates a larger issuelarger issue

An attorney who likes to try their cases in the An attorney who likes to try their cases in the court of public opinioncourt of public opinion

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Gloria AllredGloria Allred

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News ConferenceNews Conference



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Social Media Legal Social Media Legal IssuesIssues Defamation and Privacy TortsDefamation and Privacy Torts Intellectual Property InfringementIntellectual Property Infringement Trade LibelTrade Libel Securities FraudSecurities Fraud Gun JumpingGun Jumping Selective DisclosureSelective Disclosure Forward-looking statementsForward-looking statements Employment IssuesEmployment Issues User PrivacyUser Privacy DiscoveryDiscovery HIPAAHIPAA

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EthicalEthical Considerations Considerations

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Rule 3.07 Texas Disciplinary Rule 3.07 Texas Disciplinary Rules of Professional Rules of Professional

ConductConduct

(a) In the course of representing a client, a lawyer (a) In the course of representing a client, a lawyer shall not make an extrajudicial statement that a shall not make an extrajudicial statement that a reasonable person would expect to be disseminated reasonable person would expect to be disseminated by means of public communication if the lawyer by means of public communication if the lawyer knows or reasonably should know that it will have a knows or reasonably should know that it will have a substantial likelihood of materially substantial likelihood of materially

prejudicing an adjudicatory proceedingprejudicing an adjudicatory proceeding. A lawyer . A lawyer shall not counsel or assist another person to make shall not counsel or assist another person to make such a statement. such a statement.

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Rule 3.07 Texas Disciplinary Rule 3.07 Texas Disciplinary Rules of Professional Rules of Professional ConductConduct

“…“…the likelihood of a violation increases the likelihood of a violation increases if the adjudication is ongoing or if the adjudication is ongoing or imminentimminent””

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Not Everyone Follows Not Everyone Follows the Rulesthe Rules

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20/20 Anna20/20 Anna



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How to Respond Within How to Respond Within The RulesThe Rules

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Hardin InterviewHardin Interview



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CommentaryCommentary

Because no body of rules can Because no body of rules can simultaneously satisfy all interests of simultaneously satisfy all interests of a fair trial and all those of free a fair trial and all those of free expression, some balancing of those expression, some balancing of those interests is required.interests is required.

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WHAT WILL GENERALLY PUT THE WHAT WILL GENERALLY PUT THE LAWYER ON THIN ICELAWYER ON THIN ICE

A statement about the character, A statement about the character, credibility, reputation or criminal record credibility, reputation or criminal record of a party…or the expected testimony of a party…or the expected testimony of a party or witness.of a party or witness.

A statement about information the A statement about information the lawyer knows or reasonably should lawyer knows or reasonably should know is likely to be inadmissible as know is likely to be inadmissible as evidence in a trial and would if evidence in a trial and would if disclosed create a substantial risk of disclosed create a substantial risk of prejudicing an impartial trial.prejudicing an impartial trial.

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WHAT WILL GENERALLY PUT THE WHAT WILL GENERALLY PUT THE LAWYER ON THICK ICELAWYER ON THICK ICE

The general nature of the claim or defense;The general nature of the claim or defense; Information contained in a public record;Information contained in a public record; That an investigation of the matter is in That an investigation of the matter is in

progress, including the general scope of the progress, including the general scope of the investigation, the offense, claim or defense investigation, the offense, claim or defense involved;involved;

Except when prohibited by law, the identity of Except when prohibited by law, the identity of the persons involved in the matter; andthe persons involved in the matter; and

The scheduling or result of any step in The scheduling or result of any step in litigation.litigation.

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The Right WayThe Right Way

Anticipate controversial issuesAnticipate controversial issues Prepare responses in advance with Prepare responses in advance with

review by legal teamreview by legal team Act quicklyAct quickly

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During TrialDuring Trial

Help reporters follow evidence and case Help reporters follow evidence and case storylinestoryline

Educate reporters concerning trial Educate reporters concerning trial developments and proceduresdevelopments and procedures

Provide background information for Provide background information for reporters who visit periodically, but do reporters who visit periodically, but do not stay for the whole trialnot stay for the whole trial

Monitor coverage and correct Monitor coverage and correct misinformationmisinformation

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Common Common MisconceptionsMisconceptions Issue only involves high profile criminal cases.Issue only involves high profile criminal cases.

Ethics rules require saying “No comment.” Ethics rules require saying “No comment.”

There is no benefit to the client to comment There is no benefit to the client to comment on legal issues.on legal issues.

Saying “No Comment” is the best way to Saying “No Comment” is the best way to protect your client’s interests.protect your client’s interests.

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Common Misconceptions Common Misconceptions About Litigation CoverageAbout Litigation Coverage The media is interested in the legal issues.The media is interested in the legal issues.

You can’t respond if you don’t know everything.You can’t respond if you don’t know everything.

You will get a fair shake if you don’t respond.You will get a fair shake if you don’t respond.

Responding will destroy the attorney-client privilege.Responding will destroy the attorney-client privilege.

Responding will get you in trouble with the court.Responding will get you in trouble with the court.

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The Right WayThe Right Way

Respond immediately to inquiries.Respond immediately to inquiries.

Establish a rapport with reporter.Establish a rapport with reporter.

Understand motivation for story.Understand motivation for story.

Establish client’s role in story.Establish client’s role in story.

Provide response before a major investment is made in Provide response before a major investment is made in story.story.

Provide backup information.Provide backup information.

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EnronEnron

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

February 7-12, 2002 Executives appear before Congress, Skilling testifies

Indictments begin March 2002 Andersen indicted

10/17: WSJ articles Begin

Media Before Enron’s Fall: Triggers Stampede

Source: Dow Jones

Enron Common Stock Price and Volume

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.

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.

Enron is facing a problem with “trust and credibility. It's not easy to regain something as basic as trust,” he said.

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Media Frenzy After Fall of Enron

UNEVEN JUSTICEBy BETHANY MCLEAN AND PETER ELKINDFebruary 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 multimillion-dollar 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 JUSTICEBy BETHANY MCLEAN AND PETER ELKINDFebruary 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 multimillion-dollar 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 JuryMedia 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 RespondLinda Lay Interview: How Not to Respond

New York Times Article: How to Respond

By KURT EICHENWALDPublished: February 09, 2003

New York Times Article: How to Respond

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