All Cases Are Public: Why Communication Is Now Essential to Most Legal Disputes

• Author: James F. Haggerty
• Profession: Lawyer
• Pages: 33-66

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CHAPTER TWO

All Cases Are

Public: Why

Communication

Is Now Essential

to Most Legal

Disputes

“My case is none of the media’s business. Let them draw their own

conclusions.”

I hear things like this all time. But what’s interesting in this case

is that I was hearing it from the head of a media company: a publicly

traded, New York–based operation that owned a string of radio stations

across the country. Even he failed to grasp the impact of the media on his

lawsuit—until the negative stories started appearing and his company’s

stock went down the toilet.

There is no way around this simple fact: in the information age, law-

suits and other legal disputes are fair game for media coverage. This

coverage can make or break a case and, ultimately, a business or orga-

nization’s reputation. In this chapter, we examine how plaintiffs and

defendants can—and should—use the media to inuence the course of

litigation. We also look at what media need and how to give it to them.

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In the Court of Public Opinion

34

Then we take a look at an important tool we have created for summariz-

ing your legal dispute for a media audience: the Media Brief.

Paul Newman thought I should be red. A hard thing to do, of

course, since I’m the owner of my company. But he was clearly

unhappy. You might even say that what we had was a failure to

communicate.

Now, I don’t routinely work with the famous—at least not on

the level of the late Mr. Newman. But I think this anecdote helps

illustrate an important point that runs throughout this book: the

difference between what we want to give reporters and what they

need.

In August 2000, my company was called into the Screen Actors

Guild (SAG) strike against the commercial advertising industry,

working closely with my partner rm in Washington (headed by

Jeffrey Sandman, who you met in Chapter One) and an afliate in

San Francisco. By this time, the strike was more than ve months

old, and it was oundering.

After an initial media splash announcing the strike in May

2000, things had quieted down considerably—so much so that I

was unaware a strike was still going on. That was precisely the

problem.

A labor dispute is a peculiar kind of legal ght, with its own

rhythm and “feel,” particularly because you’ve got thousands of

“plaintiffs” involved in the dispute—the union members them-

selves. Moreover, unlike other forms of legal disputes, there’s a

great history of use (and misuse) of public opinion and media in

labor disputes, going back at least as far as the Pennsylvania coal

strikes at the turn of the 20th century, where President Theodore

Roosevelt famously brought John Mitchell of the United Mine

Workers (UMW) and the rather vicious coal tycoon George Baer

to the table using only the power of public opinion (since he had

no other legal authority to intervene). Thus, Roosevelt’s “bully

pulpit,” as it came to be known, was born (Roosevelt, by the way,

also once said, in regard to the anticompetitive behavior of large

conglomerates, “The rst essential in determining how to deal

with the great industrial corporation is the facts—publicity,”1 an

endorsement of the techniques of public relations in legal matters

if I ever heard one).

So, yes, a labor dispute is somewhat different from the typi-

cal piece of litigation, but in many ways, it is the classic legal

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A C A P

35

confrontation, and the communications elements of such a ght

are quite similar to other legal actions. The goal is the same: to use

the media and other forms of communication to convince your

target audiences—including the other side—that the law is on

your side, the facts are on your side, and you’re going to win.

Back to Paul Newman. Once we were hired by the Screen

Actors, I dispatched a colleague of mine, Fred Winters, to be the

man on the scene at strike headquarters and help coordinate the

activities of the New York strike leaders. Our rst goal was to let

the world know that there was, indeed, a strike still going on and

that the so-called high-prole members of the union (they dis-

liked the term “celebrities”) were solidly behind the rank and le.

As the strike dragged on, a key problem was that, since that rst

burst of publicity, the high-prole members had all but disap-

peared. But that was about to change, and the credit belonged in

large measure to Paul Newman himself.

Working with strike leaders in New York, Mr. Newman

arranged for a group of some of the most important actors in the

New York area to get together for an evening strategy meeting

to discuss ways they might get involved in the strike. The one

caveat: no press could attend, for fear of scaring off the high-pro-

le actors.

Fred and I arrived at the meeting, and, although I’m no star-

gazer, it was heady stuff. Paul Newman, to his credit, was a key

force in getting high-prole SAG members such as Tim Rob-

bins, Kevin Bacon, Bebe Neuwirth, Sam Waterston, Ashley and

Naomi Judd, Marisa Tomei, Robert Klein, and others excited at

the prospect of ghting alongside rank-and-le actors to pre-

serve the “residual” system and other key elements of the way

they are paid for appearing in commercials. While I stayed in the

background for most of the meeting, at one point, as the crowd

was breaking up, Paul Newman, Harry Belafonte, and I became

sequestered in a corner as Mr. Newman discussed ways to get the

media to cover upcoming meetings between the two sides that

were scheduled for early September. Mr. Newman even offered

to sit in on the negotiating sessions himself. He was lled with

energy and ideas, and he impressed me with his enthusiasm and

still-sharp intellect. In many ways, he reminded me of my father.

The next day, I confronted the immediate strategic concern:

how to let the world know that the meeting had occurred and that

the high-prole members were revving up to support the strike

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