Los Angeles Lawyer, Survival Guide for New Attorneys in California
Fall 2011 Issue
By Thomas A. Mesereau, Jr.
Society, and the legal profession, are fixated on high-profile cases. Although the infamous O. J. Simpson case in 1994-95 riveted the nation like no other previous case, high-profile and celebrity cases have always had a prominent role in U.S. history. Lawyers who find themselves in a case that is generating intense media interest should proceed proactively on a number of fronts.
First, it is essential that the lawyer not lose focus. No matter how intense the media spotlight may be, the most important person in the courtroom is the client. Every decision a lawyer makes should put the client’s welfare before the lawyer’s.
While I was defending actor Robert Blake in his homicide case, he told me that cameras were like a drug–and no one is immune. He was correct. For whatever reason, lawyers have a tendency to change their countenance and alter their values when cameras loom. This is dangerous.
Many of the reasons behind this phenomenon began with societal values. On some level, most human beings seek recognition and approval–consciously and subconsciously. The boundaries of this need may extend no further than one’s immediate social group, such as a school, club, athletic team, or professional association. However, this desire for recognition is reaching absurd heights in a culture that seems to have gone beyond the goal of 15 minutes of fame to constant 24/7 celebrity. Social media–including Facebook, YouTube, and other Websites–are enabling everyone to obtain some form of celebrity status.
But lawyers have a unique role. When we represent clients, we have their lives and welfare in our hands. What we do can save or destroy someone’s life, financial welfare, reputation, and freedom. It is paramount that the lawyer’s approach to the media constantly and consistently places the client’s interest ahead of the lawyer’s.
Trials are won in the courtroom. The lawyer’s primary focus should be on 13 individuals–the judge and the jury. If a trial lawyer forgets this cardinal fact and wastes too much time on media strategy and its inevitable component of self-promotion, a winnable trial can easily be compromised. The best public relations for a lawyer is a reputation for professionalism and success. Never violate court orders or the canons of professional ethics.
Media outlets are powerful. They have an enormous capacity to influence public perception. The media’s goal is never justice. Ratings, revenue, and advertising dollars are the media’s only concern. They will constantly look for the entertainment value in criminal and civil cases and exploit whatever furthers their profit.
It often becomes necessary for lawyers to calculate how best to “spin” their client’s position. Before a lawyer can effectively do this, he or she has to understand not only the client’s case but also exactly who the client is. You cannot humanize someone that you don’t understand. Great effort must be made to study the facts and evidence as well as the client’s personal situation.
Developing a Media Strategy
Lawyers tend to be more effective at mastering cold evidence than understanding humanity. Law school does not train us in compassion, empathy, sympathy, and human emotion. But these are often the ingredients that affect media strategy the most.
In preparing a media strategy, first create a list with two columns–positive and negative. List the positive facts that favor the client and then do the same for the negative ones.
Identify those human qualities that will best place the client in a positive light in the media. For example, the client may have a record of public or charitable service that militates against any civil or criminal charges. The client may have surmounted enormous obstacles in his or her personal life to obtain a valued position in society.
Further, you must identify precisely how the media has or may target the client for negative commentary. In a criminal case, the charge itself provides fodder for damaging commentary and innuendo. Prepare a compelling counterattack, in the form of a story.
Experts in marketing and advertising often discuss emotional “hooks.” A hook can be little more than a theme that succinctly and powerfully associates the client’s case with something desirable. It also can be a vehicle for turning your opponent’s negative perspective about your client into a positive message.
In the Michael Jackson case, the media consensus was very much against Jackson from the beginning. The public is often more repelled by charges of child molestation than even murder. Because Jackson devoted an enormous portion of his life to charity for children, my colleagues and I decided to try to turn the prosecution’s allegations into misinterpretation and misguidance. We focused on the fact that Jackson lacked a normal childhood because of his talent and being forced to work at an early age. While other children visited the playground, Jackson was rehearsing in the studio until three in the morning. He was signing contracts at the age of five. We sought to use information to explain why an adult would construct a home like Neverland and conduct his life with an emphasis on children.
Rather than run away from Jackson’s focus on children, we embraced it. We emphasized his desire to champion the cause of children from violent and impoverished backgrounds. We discussed his history of helping children with AIDS and degenerative diseases. We also portrayed his childlike tendencies as a key to his music and choreography. What the prosecution portrayed as monstrous, we portrayed as harmless and beneficial.
The goal was to reduce the prosecution’s presentation to one, simple question: “Given that Michael Jackson is a childlike person with innocent explanations for his focus on the world’s children, did his behavior ever cross the line into sex?” If the prosecution could not prove that it did, acquittal was required. This is what happened.
In the O. J. Simpson case, the defense effectively emphasized Simpson’s charismatic, larger-than-life athletic and entertainment career. He was portrayed as a target of dishonest and racist police officers. Because the trial was televised, the defense had a daily forum to emphasize these themes. They also took advantage of the racial tension and fears of police misconduct that characterized Los Angeles at that time. A proper media strategy will take into account the social environment surrounding the case.
Celebrities are often targets of unscrupulous reporting. In defending a celebrity, a lawyer may want to inquire into every circumstance that suggests unfair targeting.
The savvy lawyer also develops contacts in all forms of media. If the lawyer has a reputation for integrity and professionalism, the lawyer is more likely to be treated favorably. If a lawyer feels that he or she should not comment on a particular issue, the lawyer should say so. Don’t intentionally mislead media representatives. Once burned, they don’t forget.
Cameras in the Courtroom and Gag Orders
In a high-profile case, the lawyer may need to decide whether or not to oppose television cameras in the courtroom. In the Robert Blake case, I favored them for the three-week preliminary hearing. The media’s treatment of Blake had been horrific. I felt that I could change public opinion by attacking the prosecution’s case and witnesses in public. As a result, CourtTV’s polling registered the biggest change in public opinion that it had ever recorded. Before the hearing, the polls showed that more than 80 percent of the public thought Blake was guilty. Three weeks later, the same percentage viewed him as innocent.
In the Michael Jackson case, I opposed having cameras in the courtroom. I felt that television coverage would emphasize the circuslike atmosphere that already existed around the case. I did not want potential witnesses watching what other witnesses said. I also felt that excluding cameras would send a message to the trial judge and the public that the defense was serious, focused, and not trying to emphasize publicity at the expense of the client.
Fashioning a media strategy also makes determining whether or not to seek a gag order. Gag orders preclude lawyer commentary on the merits of a case. In the Blake case, I was against any type of gag order and felt that open commentary would allow me to level what appeared to be an uneven playing field. It was clear that the prosecution and police had repeatedly poisoned the media with negative information on Blake.
In the Jackson case, I favored a gag order and wanted the case to be primarily tried in the courtroom. Again, I felt this would send a message that Jackson’s defense was going to be characterized by professionalism and focus rather than cheap theatrics.
Of course, trial lawyers also can speak to the media through filed pleadings. As a result, the trial judge in the Jackson case forced salacious pleadings to be filed under seal.
How one spins the media varies from case to case. However, lawyers should always remember that the best media spin is effective trial lawyering in the courtroom. American juries tend to be very independent and, while not perfect, they try to be fair.
Don’t get too carried away with the media. The media overwhelmingly predicted that O. J. Simpson, Robert Blake, Michael Jackson, and Casey Anthony would be convicted. They were wrong. The media also predicted an acquittal or hung jury in the Scott Peterson case. He now sits on death row.