The Rules of Media Procedure, and How to Use Them

• Author: James F. Haggerty
• Profession: Lawyer
• Pages: 67-95

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CHAPTER THREE

The Rules of

Media Procedure,

and How to

UseThem

“Where are the rules? I don’t understand the rules.” This is a familiar

refrain from lawyers when dealing with media during litigation. Law-

yers, remember, live their lives by rules: Rules of Civil Procedure, Rules

of Evidence, local court rules, appellate court rules, and so on. But in

dealing with the media, lawyers are in a court of a different kind—the

court of public opinion—where the rules are shifting, amorphous, dif-

cult to understand, and even more difcult to enforce.

In this chapter, we look at some of the rules that govern reporters dur-

ing interviews and some of the reasons why the media behaves the way

it does. We explore a host of tips and techniques for handling the media

during litigation and then take a moment to return to a central issue in

working with the media: understanding what reporters want.

A few years ago, I was at lunch with an attorney and an editor

of BusinessWeek. It was an off-the-record discussion of a case the

law rm was working on that we expected would be big news

in the coming months. This particular lawyer—one of the most

prominent litigators in New York, in fact—prided himself on his

no-nonsense, tough-guy demeanor. On the walk over to the res-

taurant, we discussed the importance of not going into too much

detail about his client’s case, for reasons of strategy and to avoid

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I  C  P O

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revealing any information that might be considered conden-

tial. Instead, the lawyer was to speak generally about the issues

involved in the case and what they might mean for the future of

this area of the law. If something came up that was condential, I

made sure the litigator knew to say something like “That’s a con-

dential part of the case that I can’t get into” and move on.

It started off a cordial affair with the BusinessWeek editor and

the attorney hitting it off famously. But then something went hor-

ribly awry. There I was, halfway through my salad, listening as

my lawyer friend began to reveal intricate details of the case and

his client’s position. He made one revelation after another. Con-

dential details, the kind of inside information he wouldn’t nor-

mally divulge to anyone unconnected with the litigation, never

mind an editor at a national magazine. I shot him a glance, but he

ignored me and continued.

Finally, I choked on some lettuce, cleared my throat, and inter-

rupted: “We’re all agreed that this conversation is strictly off the

record, right?” The editor smiled and agreed. She knew the law-

yer had crossed the line but also remembered the ground rules

we had set for the interview. But my insistence stopped the litiga-

tor dead in his tracks. He suddenly realized what he had done.

An awkward silence ensued. His face turned as red as the cherry

tomato on my plate.

After a moment more, he shakily rose from the table and

excused himself to use the men’s room. It was some 15 minutes

before he returned.

It was a surprise to see so stalwart a legal lion shaken, but I

had a pretty good idea what was going through his mind as he

wobbled away from the table. This was BusinessWeek, after all.

He realized not only that he had revealed some very compromis-

ing information about his client and his case, but also that he’d

done it to a person who (as the saying used to go) buys ink by the

gallon.*

*Of course, in an era when all media now have an online presence and

Twitter feed—often the equal or exceeding their print audience—perhaps

that old saying should be revised: “Never get into an argument with some-

one who attracts eyeballs by the millions.”

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