Posted On: September 26, 2011

The media and you: think before you speak

During my many years of practice as a Baltimore trial attorney, I have periodically been involved in cases that have garnered a great deal of media coverage. I’ve learned that when it happens, it happens fast: calls come in all at once from multiple television stations and newspapers – and everyone needs to speak to you right away. Everyone is on deadline.

My advice is that, before fielding any of these calls, you should have your secretary tell everyone you’ll call them back within 30 minutes. Then, take a moment to ponder the following points:

First, consider ABA Model Rule 3.61, which prohibits counsel from making public statements that will have a high likelihood of materially prejudicing the proceedings. The rule does allow counsel to confirm or explain information that is in the public record, as well as provide notice that an investigation is in process, and status information about the case. Significantly, the rule also allows a lawyer to make a statement that a reasonable lawyer would believe necessary to protect the client from substantial prejudicial effects of recent publicity not initiated by the lawyer or the lawyer’s client. Regardless, consider the ramifications of the rule carefully.

Also, consider drafting a prepared statement to recite to any reporter who contacts you. Ideally, you should prepare this statement in advance -- even if you think there is only a remote chance you’ll be contacted by the media. A prepared statement helps protect you from two very real human tendencies – the tendency to ramble in response to a question without hitting the point directly, and the tendency to think out loud, thus risking the exposure of information you might not have planned to reveal. Remember: when talking to reporters, whatever you say is quotable.

A side note to this: “off the record” can mean different things to different people. Don’t make a comment first and then ask that it be considered off the record. Similarly, if a reporter agrees in advance to an off-the-record comment, make sure you both agree when “off the record” has shifted to “on the record.” Failure to clarify this can result in an embarrassing surprise on the publication's website or in its newspaper the next day.

This leads to my next suggestion: crystallize your message. People speaking to the media often complain about being misquoted. This is often the result of a reporter misunderstanding your comments or an editor choosing to delete that very portion of your comments that you believe was central to your message. You can minimize the frequency of these scenarios by being ready with a short, specific quote that advances your position crisply and clearly.

Notwithstanding all of the above, before you pick up the phone, consider the courtroom climate. Remember that anything you say to the media is surely to be read by the judge and opposing counsel. Certainly, if the court informally suggests that counsel limit remarks, you must be careful to abide by the court’s wishes.

Finally, despite the allure of fame and glory, weigh whether speaking to the media about the case is truly in your client’s best interest. Sometimes comments to the media can positively impact your case by making the media aware of public information that may be advantageous to your side. Other times, the risk of jeopardizing your case or your credibility with the court outweighs any advantage in speaking to the media. Don’t let you be swayed by the appeal of seeing your name in print.

(Adapted from "Think Before You Leap: Talking to the Media," a chapter I wrote for the book Lawyers and Reporters (ABA, 2000), edited by Robert L. Rothman.

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