Editor's note: This is the first in a two-part series.

 

There are few things more cringeworthy for me when consuming news than reading an attorney's (or his client's) statement regarding a development in ongoing litigation. Typically, an attorney's involvement in drafting or reviewing such a statement is problematic for one of two reasons. Either the attorney has drafted a statement that has no legal or public relations value, or he has wrung any such value out of what was an adequately drafted statement from the client for fear that opposing counsel will somehow use the statement against the client in the lawsuit.

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Lucky for you, I have tabulated my cringes. As far as I can tell, there are 10 things I hate about statements to the media regarding ongoing litigation. Below are the first five. My next column will focus on the remaining five.

 

• The attorney or client didn't bother to make one. My deepest cringes occur when a reporter states that the attorney for a party "did not respond to requests for comment," or that the attorney "declined to comment." Attorneys never waste opportunities to file documents with, or make statements in, a court of law when permitted to do so in order to support their legal arguments. Yet, by not providing comment to reporters regarding a development in litigation, attorneys are wasting an equivalent opportunity in the court of public opinion. A wasted opportunity in that court could cause more harm to a client than whatever the legal development is. A common excuse for an attorney declining comment is that he could not prepare a statement ahead of time because there was no way to know how the court would rule. That "known unknown," as Donald Rumsfeld would likely describe it, can be accounted for. Attorneys could prepare media statements ahead of time that anticipate different developments in litigation so that when one of those developments actually occurs, the attorney will have a statement ready to go. In doing so, attorneys will have one less reason to ignore or decline requests for comment.

 

• The statement said nothing of substance. "The allegations made by the plaintiffs are meritless. We will vigorously defend ourselves against these claims." Sound familiar? It should. The majority of statements concerning litigation include references to "meritless" allegations and a "vigorous defense." These words are conclusory fluff. They are the equivalents of rice cakes: they take up space, but have no substantive value. They communicate nothing about the substance of the case. They also beg questions. If an organization settles a lawsuit which contains allegations the organization has called "meritless," will that organization's customers and employees feel like they have been lied to? After all, why settle a suit that has meritless allegations? And, what about clients whose attorneys have made statements about vigorously defending their other clients' cases? Are those clients getting their attorneys' best work? Or are those attorneys exhausted after exerting all of their energy for their other clients? Yes, these questions are tongue-in-cheek, and taking the above statements at face value is unwise. But so is thinking that they are effective statements about developments in ongoing litigation.

 

• The statement was too long. Statements to the media about ongoing litigation must be concise. These statements are not the place for an attorney to explain how his client satisfies each of the seven factors at issue in a particular legal dispute. Instead, statements must be short enough that they can be easily digested by readers—and easily reprinted by media outlets. If a statement is too long for a news article and needs to be cut down, the attorney (or client) loses control over the substance of the statement. Statements should generally be a few sentences long. If more needs to be said about a development in a lawsuit than what can reasonably be captured in those sentences, consider posting a longer version to a client's website or on their social media accounts.

 

• The statement did not "tee up" legal arguments. For attorneys, a statement to the media about ongoing litigation is an opportunity to make their clients' cases to particular audiences, such as the clients' customers and employees, and of course, opposing counsel in the litigation. Attorneys should take advantage of this opportunity by foreshadowing their legal arguments as explicitly or implicitly as their litigation strategy dictates. For nonlawyer news consumers, "teeing up" legal arguments is an effective way to communicate to them that there are two sides to a story and that what one side allegedly did may not be "wrong." For opposing counsel, telegraphing legal arguments can serve as "dares" to adversaries to continue pressing weak arguments. In some instances, such telegraphing may not be appropriate where attorneys want to keep adversaries guessing. But in litigation where the legal strategy and arguments are well-known and do not allow for much creativity (which could be the majority of litigation), "teeing up" legal arguments in public statements can be effective.

 

• The statement was in "legalese." Yes, I know I just said that statements to the media about ongoing litigation should include legal arguments. That is not, however, an excuse for attorneys (or their clients) to draft statements that sound like excerpts from a legal brief. "We deny liability" is not a phrase that belongs in a media statement. Nor are "replete with errors," "systematically denied," or "failed to substantially perform." Statements to the media must be easy for nonlawyers to digest. Thus, legal jargon and terms of art should be avoided. Such language is the equivalent of feeding uncooked broccoli to a 4-year-old child. As parents know, that vegetable in that form is rarely digested willingly by that audience.

 

I hate these five things about statements to the media about developments in ongoing litigation. In my next column, we will pick up where I left off, giving you five more things I hate about such statements. •

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Special to the Law Weekly Wayne Pollock is the founder and managing attorney of Copo Strategies in Philadelphia, a boutique law firm that makes its clients' cases in the court of public opinion. Contact him at 215-454-2180 or @waynepollock_cs on Twitter.

 

Reprinted with permission from the May 9, 2017, online edition of The Legal Intelligencer/Pennsylvania Law Weekly © 2017 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com

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