The Litigation Media Checklist

• Author: James F. Haggerty
• Profession: Lawyer
• Pages: 133-157

133

CHAPTER FIVE

The Litigation

Media Checklist

Is there a business, organization, client, or lawyer out there who doesn’t

rely on systems and procedures to manage the day-to-day aspects of the

work they do? If you’re a manufacturer, you have procedures; a service

business, operations manuals; a lawyer, formbooks and rules of evidence

and procedures. Even athletes, actors, and other performers have sys-

tems: watch Mike Trout prepare for a game or Daniel Day-Lewis his

next role. Common knowledge dictates that, regardless of the size of the

organization, ying by the seat of your pants is a sure recipe for disaster.

Yet, in handling the communications aspects of litigation, this is exactly

what is often done. Lawyers and clients rely on gut instinct, intuition,

and chance—hoping that the damaging lawsuit against them will be

ignored, or that someone, somewhere along the way, will notice a case

they believe deserves attention.

In this chapter, we look at a key tool for putting a system in place to

analyze your case for potential impact in the media and before other pub-

lic audiences. And we learn about the surprising way unexpected cases

can nd their way into the court of public opinion.

Way back in 1994, I was sitting with a prominent labor and

employment lawyer in Washington, D.C., discussing his various

cases. This particular partner, easily among the top dozen or so

in the country in his eld, specialized in employment discrimina-

tion and sexual harassment cases, and his plate was, as usual, full

of cases that could be considered newsworthy. My job was to ana-

lyze the cases he was handling to see if there was anything par-

ticularly media sensitive, a standard practice in the work we do.

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In the Court of Public Opinion

134

Over the course of a good 90 minutes of conversation, the law-

yer discussed cases at various levels in the court process—this

case is at the D.C. Circuit on appeal (very interesting legal issues),

that one was about to come to trial in New York (and may eventu-

ally make it to the U.S. Supreme Court on the question of which

party has the burden of proof in certain actions), and so on. All

pretty interesting stuff.

About 70 minutes or so into the conversation, he mentioned,

almost as an aside, what he called a “little” case he had that I

should be aware of.

“It’s nothing too big,” he said, “just a small case, it hasn’t even

been led yet and there’s nothing new legally, but it has some

interesting facts. It deals with sexual harassment by electronic

mail.” He then went on to another case that was before the Fourth

Circuit in Virginia and may create some new law in the area of . . .

Wait—sexual harassment by e-mail?

This was 1994, remember—back then e-mail was just becoming

common in corporate environments (if I recall correctly, my entire

small company still had only one e-mail address at the time). The

true implications of this new tool were just then beginning to

come to light. Hard as it may be to believe today—particularly

in this era of #MeToo and a general heightened awareness of the

devastating impacts of harassment—no one back then had ever

heard of using computers to sexually harass.

I stopped the lawyer’s discussion of the Fourth Circuit case

and went back to the e-mail case.

“Tell me more.”

He proceeded to tell me how the e-mail and voice mail technology

becoming common in corporate ofces was now actually making

certain forms of harassment easier. In the old days, if you wanted to

harass a coworker in an ofce, you would have to get up, walk to the

coworker’s desk, and make your move there. Or, at the very least,

call the person on the phone—and risk a very painful rebuttal. But

now, in the age of e-mail and voice mail, all you had to do was hit the

“send” button on your computer (or in the case of voice mail, leave a

message when you knew the coworker wasn’t around).

“But it’s the same old discrimination law,” he said. “From a

legal standpoint, there’s nothing unusual at all about the claim.”

In hindsight, you can see how he was correct as to the law but

dead wrong as to the wider public arena. In 1994, sexual harass-

ment by e-mail may not have been new law, but it was new. And

thus, news. This, I warned him, was the case we needed to watch

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