When to Comment to the Media – Steps to Deciding
Question 2: Is it true?
Rule 4.1 Truthfulness in Statements to OthersIn the course of representing a client a lawyer shall not knowingly:(a) make a false statement of material fact or law to a third person; or(b) fail to disclose a material fact when disclosure is necessary to avoid assisting an illegal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
Question 3: Will you always be able to stand by what you said? Will you ever have to retract it?
Question 4: Does the client consent?
Why talk to the press at all? What’s the point
Political pressures on decision-makers (i.e., DA).
How does this help or hurt my next client? Or, don’t crap where you eat.
Reversing negative publicity that can affect your jury pool – Source ConfusionThis is the most nuanced and most important factor in my opinion.
“These errors are examples of source confusion because, in each case, the person is correct in recalling that a particular bit of information was somehow part of his or her past but then is confused about the source of the information—and so recalls it as part of the original event when, in fact, the information came into the person’s experience via some other route.”
Reisberg, Daniel, Professor. The Science of Perception and Memory: A Pragmatic Guide to the Justice System (Page 70). Oxford University Press. Kindle Edition.
Witness ID issues (basis of case law in the ground-breaking Lawson case).Source confusion of a jury, discussed below, is the same memory error that we see in witness misidentification cases. According to Reisberg, “In each case, the person is correct in recalling that a particular bit of information was somehow part of his or her past but then is confused about the source of the information—and so recalls it as part of the original event when, in fact, the information came into the person’s experience via some other route.”
Source confusion: confusion about who said what – The Honsowitz effect
The late Eugene, Oregon, attorney Bill Honsowitz once had a trial with our office where he asked these annoying leading and accusatory questions to our client where she denied every single one of them. He would ask, “Isn’t it true that you only fed the kids suckers and candy for dinner?”
Then, in the judge’s findings of fact, he actually adopted the statements made by the attorney and misattributed it to a witness that never materialized. It was fixed in the findings of fact but it didn’t change the judgment. We lost. That client lost. She lost custody on a very thin record of mainly accusations.
Now, imagine this in a jury setting. They get back there in deliberations and they can’t remember if the info came from a question, an answer, or something they recall from months earlier. Perhaps a question refreshed a recollection that was never proven up but they now take as fact. But it’s source confusion. They don’t know that they’ve mixed up the result. It’s unconscious and not deliberate.
“The research here is straightforward: Jurors are exposed to PTP, then to a trial, and then questioned about which pieces of information came from which source. In these studies, source confusion has been observed in individuals’ recollection of real trials in which they have served as jurors and also observed in research participants’ recollection of simulated trials. In the data, source confusion is evident even when the information in the PTP was inaccurate (as sometimes it is) or if the information would have been inadmissible if it had been presented in trial.”
Reisberg, Daniel, Professor. The Science of Perception and Memory: A Pragmatic Guide to the Justice System
Other factors increasing source confusion (or at least not alleviating it).1. Complex cases
2. Older PTP is the problem
3. Deliberations can compound source confusion.
Deliberations don’t fix it. The jurors who do the fact “correcting” in deliberations are often the ones most confident about their memories because, possibly, they are most imbedded due to source confusion. Remember, it’s not intentional. It’s a confusion of the source.
PTP source confusion remedies:
3. Voir dire Promise not to consider PTP: they can’t deliver on the promise because they are confused on the source.
Confirmation bias: PTP also increases that.
Remedies: there aren’t many since this is an emotional response that is automatic and unconscious.
What about voir dire: The Skillman v. United States Enron case essentially says that you can always fix pretrial publicity in voir dire by just getting a lot of jurors and asking a lot of questions.
Change of Venue is the only remedy: who has filed a change of venue? Who has won one? Not many. If it’s an unlikely or impossible solution, what else can be done?
My theory is: Inoculate the jury prospectively and reduce the chances of source confusion by giving the other side to the story.
Other Reasons for Pretrial Publicity (Crowdsourcing and Getting witnesses to contact you):
(Photo: A volunteer attempts to contact witnesses in a murder case.)
Consequences for the attorney: What will happen if you do this? (You need a thick skin)
Dealing with them on social media: Facebook and Twitter is a blessing and a curse. You can’t do most media campaigns without them and you can’t control very easily the trolls from trying to take away from your message or disparage your law firm. To counter this, you can set certain automatic restrictions on curse words and other buzz words important to your case to keep the social media review labor time to a minimum. This is really only an issue in a nationally important case.
Bar complaints: The ultimate in trolling a lawyer is a frivolous bar complaint, which can be done in a matter of seconds anonymously in Oregon. It takes time and/or money to respond and can be very stressful. Hence the propriety of spending more money on someone like Peter Jarvis. If you are going to be handling these sorts of cases, have someone on retainer and have a canned media response ready to go. And don’t sweat it.
Ammon Bundy’s Case as a Case Study in Challenging Media Bias (and thus inoculating from source confusion)The news coverage of the Malheur refuge occupation before the arrests was very negative. The media was calling them militants and extremists, as well as calling them “protesters.” The ratio of good words versus bad words (extremists/militants) was about even in the media: 1:1 to 1.5:1
Immediately after the arraignment, Lissa Casey and I went on the courthouse steps to begin to change the narrative. We were offering a pure “political protester” and “little guy vs. big bad government” narrative. We hired a media consultant to help define the issues and the message. My position has always been that the “Patriot Movement” needs a PR expert. They appeared very bad at it. They were good at energizing their supporters but weren’t doing a very good job of making their message relevant to the public (i.e., their jury pool).
By the first month into the case, the media narrative started to change favorable. The media was now calling them protesters 3-1 over negative terms. However, the internet support dropped from 3:1 to 2:1
Media was 3 to 1. That’s triple the positive coverage.
The Internet support (proportionally) dropped dramatically immediately after from 3:1 to 2:1, meaning the vocal minority in the public where posting more negative things than positive about the protesters online.
Then we got some momentum. We starting getting our client statements out and he started doing interviews. That had a great impact in the press calling him positive things because they were presenting his and my own words. We had a media consultant fly in to assist with these initial news conferences and we rebranded.
Then it leveled out to 3:1 for news and stayed consistently 2:1 for the public.
(Graph: Note the jump in positive coverage after arrest, which peaked in the midst of the media blitz, bottomed out mid summer and then leveled back out just before trial, continuing steady even after the acquittal.)