"What We've Got Here Is Failure To Communicate"

Litigation communication, like most public relations, relies, in varying degrees, on using the media to deliver the client's message to the general public or the targeted audience. It is, of course, a source of continuing frustration that often the resulting story is at odds with the client's message. Strother Martin's iconic line from Cool Hand Luke, "what we've got here is failure to communicate," immediately leaps to mind. Indeed, according to a recent study conducted by Burson-Marsteller, an affiliate of Hill & Knowlton, a company's message is lost in translation 48% of the time with the mainstream media, and 69% of the time with bloggers.

What accounts for this "failure to communicate" and what can be done about it? Insofar as the mainstream media is concerned, the Burson-Marsteller Message Gap Analysis, points out that in an effort to present a complete story, reporters will often include specific details related to the story that the company fails to provide. Because the specific details may be from a non-company source, the resulting story is not always aligned with the message the company is attempting to communicate. In addition, the mainstream media is also likely to identify and quote critics for a different point of view, especially if there is a potential controversy. Therefore, Burson-Marsteller counsels that in order for a company to increase the odds of its message getting through, it should commit to telling the whole story, otherwise, the media will tell it for the company:

Communicators should expect that journalists will attempt to present a 360-degree view of the story and anticipate and answer questions the media will have when writing the story. The company messages should include responses to these questions to clearly present the company position on potential issues that will arise.

Insofar as bloggers are concerned, they present a more difficult communications challenge. Bloggers, particularly independent ones not associated with more mainstream publications, play by a different set of rules. They often operate with little, if any, editorial oversight. They largely answer to themselves, and that is, in part, how they build an audience and get people to follow them. Moreover, bloggers are more likely to incorporate their own opinions and personal experiences and to bring in messages from multiple sources. Most of them have a deep interest and expertise about the topics they blog about, and therefore are eager to educate others who share their interests. In addition, bloggers are more likely to speculate about the company's underlying intentions and strategy. A good blogger will cut through jargon and spam messaging, and will take on the company for using it. Finally, bloggers who solicit comments and actively interact with their commenters are more likely to generate a broad discussion that may include comparisons to the company's competitors or competitive products. All of these reasons account for why, when a company targets bloggers, or "influencers" as they are often called, the company's message is likely to get through only about 30% of the time. Therefore, Burson-Marsteller counsels that when engaging bloggers, a company increases the odds that its message will get through by being clear, transparent, and forthright:

Communications professionals need to be aware of who is blogging about their content and how their messages are being presented in social media in general. Reaching out to bloggers and Twitterers where appropriate can foster a dialogue that enables the company to clarify its messages for bloggers and keep the communications on target. Also, monitoring, responding to and [re]tweeting bloggers'/Twitterers' posts helps generate a dialogue and gives the company an opportunity to refine the social media message. As with mainstream journalists, anticipating and providing the information that bloggers may want to discuss, including comparisons to competitive offerings and broader issues can help a company position itself in the context that bloggers are likely to write about.

The Burson-Marsteller study is important because it quantifies what we already knew through instinct and experience, that is, when you engage the mainstream media and enter the social media world, it is likely that your client's message will get lost in translation. Knowing this, there are at least two things that a good communications strategy must include. The first is a plan to deliver the message directly to key audiences such as employees, investors, shareholders, and customers through the client's website, Facebook page, Twitter account, email, text messages, and even the old-fashioned telephone. The second is to recognize that when using the media to deliver the message, it is a mistake to think that just sending out a press release will accomplish the mission. Therefore, in addition to the Burson-Marsteller recommendations for dealing with the media, the plan must include a process for following the media and correcting errors, challenging false reports and information, and providing continuous updates.

The journalistic relevance of bloggers is very real and proliferating. The Burson-Marsteller study cites sources who provide the following statistics: there are 200 million blogs; 73% of active online users have read a blog; 44% of those online get news at least a few times a week through posts from social networking sites, automatic updates, and emails; and that 26% of Twitter users get their news from tweets. Monitoring all this activity can be a huge undertaking. In a later post, I will examine how one company is taking on the challenge of monitoring social media in order to manage its message and protect its brand.

Lance Armstrong Hires Litigation Communications Consultant

Lance Armstrong, another athlete being investigated for the past use of performance-enhancing drugs, has added legal and communications consultant Mark Fabiani to his team in order to try to limit damage to his image. Mr. Fabiani, co-owner of the public relations firm of Fabiani & Lehane, began working with Mr. Armstrong informally in July, but as of last month began serving as the point person for all media. Mr. Fabiani, a former White House counsel, represented former President Bill Clinton and his wife, current Secretary of State Hillary Rodham Clinton, during the investigation of the Whitewater land deal. He also served as deputy campaign manager for then-Vice President Al Gore in the 2000 presidential election and spearheaded communications during the subsequent Florida voting controversy.

Lance Armstrong hires Mark Fabiani [ESPN.com]

Pre-Trial Publicity, the First Amendment, and "The Fugitive" - Part Two, Gagging the Lawyers

Judge Walton's gag order in the Rogers Clemens perjury case directed the lawyers for the "parties and witnesses" to "refrain from making any further statements about this case to the media or in public settings outside the courtroom that are 'substantially likely to have a materially prejudicial effect' on this case. Gentile v. State Bar Nev., 501 U.S. 1030,1076 (1991)." By citing Gentile, Judge Walton raises the question of whether the lawyers needed to be covered by the gag order, because if they are licensed in a jurisdiction that has adopted ABA Model Rule of Professional Conduct 3.6, they already have an ethical obligation not to make any out of court statement that will have a "substantial likelihood of materially prejudicing an adjudicative proceeding."

I am very familiar with the Gentile case, as it was one of the cases where the ABA submitted an amicus brief while I was its General Counsel. Dominic Gentile was a Nevada lawyer who held a press conference the day after his client, Grady Sanders, was indicted for the theft of cocaine and money that was being used in an undercover operation. Mr. Gentile read from a prepared statement, and then responded to questions. The gist of Mr. Gentile's statements were that his client was being used as a scapegoat to try to cover up for police misconduct, since the person who most likely stole the drugs and money was a Las Vegas police detective.

Six months after his indictment, a jury acquitted Mr. Sanders of all charges. Subsequently, the State Bar of Nevada filed a complaint against Mr. Gentile, alleging that the statements he made during the press conference violated Nevada Supreme Court Rule 177, which prohibited Mr. Gentile from making out of court statements to the media that he knew or reasonably should have known would have a "substantial likelihood of materially prejudicing" Mr. Sanders' trial. The Southern Nevada Disciplinary Board found that Mr. Gentile violated Rule 177 and recommended that he be privately reprimanded. The Nevada Supreme Court affirmed, rejecting Mr. Gentile's argument that Rule 177 violated his right to free speech.

Nevada Supreme Court Rule 177 was identical to ABA Model Rule of Professional Conduct 3.6, which, at the time Gentile was decided, had been adopted - either verbatim or with insignificant variations, by 32 States. Therefore, when the case reached the United States Supreme Court, the ABA filed an amicus brief arguing that Rule 177 did not unconstitutionally infringe on Mr. Gentile's right to freedom of speech. Although a fractured Supreme Court reversed the judgment that Mr. Gentile had violated Rule 177, the Court did hold that the "substantial likelihood of material prejudice" standard did not violate the First Amendment:

The restraint on speech is narrowly tailored to achieve [the State's] objectives. The regulation of attorneys' speech is limited - it applies only to speech that is substantially likely to have a materially prejudicial effect; it is neutral as to points of view, applying equally to all attorneys participating in a pending case; and it merely postpones the attorneys' comments until after the trial. While supported by the substantial state interest in preventing prejudice to an adjudicative proceeding by those who have a duty to protect its integrity, the Rule is limited on its face to preventing only speech having a substantial likelihood of materially prejudicing that proceeding.

Gentile, 501 U.S. at 1076. Since the Supreme Court decided that lawyers can be disciplined for making out of court statements that are "substantially likely to have a materially prejudicial effect," one wonders whether it was necessary for Judge Walton to cover the lawyers in his gag order. Considering that Judge Walton's order provides that "[f]urther action in violation of this admonition will be confronted with the full authority of the Court," it appears that he wanted to make the lawyers subject to the court's contempt powers in addition to any possible disciplinary proceeding.

Notwithstanding the Supreme Court's decision on the First Amendment issue, a majority of the Justices agreed with the following statement of Justice Kennedy, wherein he concluded that sometimes a lawyer is obligated to advocate for the client "in the court of public opinion:"

An attorney's duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client. Just as an attorney may recommend a plea bargain or civil settlement to avoid the adverse consequences of a possible loss after trial, so too an attorney may take reasonable steps to defend a client's reputation and reduce the adverse consequences of indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives. A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.

Gentile, 501 U.S. at 1043. In consideration of Justice Kennedy's statement, the ABA amended Model Rule 3.6 to add the following provision:

(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.