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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March 17, 2011

Frivolous lawsuits and Rule 11: Is the cure worse than the problem?

Few would argue the merits of frivolous lawsuits, but the “cure” being proposed in Congress this week is far worse than the disease. One only needs to journey back in history a few decades to get a preview of what could easily happen again if the groups pushing for tougher measures get their way in the fight against frivolous lawsuits.

At the heart of the battle is Rule 11 of the Federal Rules of Civil Procedure. Originally drafted more than 70 years ago, it has been revised twice in the last thirty years: first to toughen up sanctions against attorneys filing frivolous lawsuits, and a decade later to mitigate the damage caused by the first revision. In today’s version of Rule 11, judges have some latitude in determining whether or not to impose attorney sanctions, and lawyers in civil cases are granted a 21-day “safe harbor” period during which time they can withdraw a lawsuit following a sanctions motion.

This week, though, lobbyists representing two of the country’s most powerful small-business interest groups have testified on Capitol Hill that they want to see Rule 11 brought back to its 1983 state – that is, the time of the first, lamentable revision. Their argument: that in its current form, Rule 11 is creating a chilling effect on small businesses. These lobbyists are asking Congress to reinstate mandatory attorney sanctions under Rule 11 and remove the rule’s provision granting the 21-day withdrawal period. What these small-business interest groups may not realize is that the Rule 11 of today is far less “chilling” to the American judicial system than the Rule 11 to which they want to revert.

University of Houston law professor Lonny Hoffman, who testified against the proposed changes, put it best, recalling the chaos that ensued after Rule 11 was first amended in 1983: “Sanctions practice took on a life of its own…with lawyers routinely battling over the minutiae of all the new obligations imposed.” Indeed, rather than reduce litigation, Rule 11 added both time and expense to it.

In his testimony, Hoffman cited another legal scholar, Georgene Vairo, who wrote about the “avalanche” of satellite litigation unleashed by the 1983 revisions, including one study that found that in a one-year period almost 55% of respondents had experienced either formal or informal threats of Rule 11 sanctions.

Even more disturbing about Rule 11, particularly after it was amended in 1983 and before it was revised again in 1993, was that those most hurt by it were low-income civil rights and employment discrimination plaintiffs. These were the people least likely to have the funds to keep the battle going. In effect, Rule 11 became an intimidation technique and had a chilling effect on free access to the courts. Even in its current form, Rule 11 suffers similar criticisms. It also encroaches upon the American rule disfavoring the award of counsel fees for the losing party.

When, in 1993, Congress revised Rule 11 to give judges more latitude in imposing sanctions and to create the safe-harbor provision, Congress was attempting to correct much of the damage of Rule 11 in its earlier form. Now groups representing small businesses want to have Rule 11 brought back to those glory days of the mid-1980s?

Before we rush to do that, we should pause and reflect on history. After all, as American philosopher George Santayana once said, “ Those who do not learn from history are doomed to repeat it.”

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January 16, 2011

Legal Aid: Justice for All

Earlier this month, the National Law Journal reported on the desperate state of legal aid across the country, calling it a “perfect storm” of all things grim. Legal aid for millions of indigent people around the nation comes from a variety of sources that, for a variety of reasons, drop in funding just as demand for those services rises. As more people lose their jobs and their homes in an economic downturn that just entered its fourth painful year, the need for lawyers to represent them in court has spiked. Legal aid isn’t unique in this dilemma – this same tragedy is being played out by charities, as well as state and federal agencies, across the nation.

As lawyers ourselves, though, we ought to be particularly sympathetic to the needs of those seeking justice in a court of law, but who are unable to get it because they simply can’t afford an attorney. In Maryland, tens of thousands of impoverished Maryland citizens count on the services of Maryland’s Legal Aid Bureau every year, and that number has risen by volumes since the recent economic downturn. Founded in 1911 to provide free legal services to the poor, the Maryland Legal Aid Bureau has grown to have offices in nearly every county in the state, and its services are in constant demand. Much of Maryland Legal Aid’s work focuses on serving the legal needs of the elderly, helping women and children in abusive relationships, representing families who face eviction from their homes and assisting low-income workers deal with problems in their workplaces.

The National Law Journal points out that it isn’t just budget cuts that have made the situation so bleak for legal aid. A major part of legal-aid funding comes from what is known as Interest on Lawyer Trust Accounts, or IOLTA. This is a portion of the interest in certain state-run lawyer trust accounts that is set aside for legal-aid groups in those states. Given the record-low interest rates over the past few years, proceeds from IOLTA have dropped substantially. Combine that with budget cuts and a dramatic rise in the number of low-income people requiring legal aid since the economic downturn, and it is clear legal aid is hit with a triple whammy.

As lawyers we pride ourselves in working toward the ideal of “justice for all.” We need to be mindful of the role we play in that regard. For more information about Maryland’s Legal Aid Bureau Inc., call 410-951-7680 or go to www.mdlab.org.

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October 19, 2010

Is Sarcasm Good Courtroom Strategy?

How much sarcasm is too much in court? That very question was brought before an appellate court in Connecticut earlier this month when a public defender challenged his client’s guilty verdict, claiming the defendant’s right to a fair trial was compromised by the prosecutor’s aggressively sarcastic style.

According to the Connecticut Law Tribune, the prosecutor used the phrase “lo and behold,” several times and prefaced questions with a heavily emphasized, “You claim….” He also announced, “Good luck for you,” when the defendant testified that he obtained his gun when it happened to fall out of a relative’s pocket.

Though the appellate court upheld the guilty verdict – ruling that sarcasm does not constitute an appeal – a good trial lawyer should proceed with caution when playing the sarcasm hand.

Though there is some case law indicating that a ruling could be overturned if the sarcasm is deemed excessive, your goal shouldn’t be to come too close to that line. You can’t know for sure how the jury will react to your sarcastic tone. Certainly, you don’t want to appear to abuse or bully the witness and lose the jury’s respect. Your goal, particularly in a cross-examination, is to control the witness and if appropriate, to discredit the witness’s testimony, but to do it in a more restrained way than by resorting to sarcasm.

A skillful trial lawyer ought to be able to lead a witness into revealing his foolishness or mendacity without directly mocking him. When you have an adverse witness that has made an improbable claim on direct, for instance, conduct the cross in such a way that you allow him to emphasize the very improbability of the testimony. Repeating back the witness’s hard-to-believe statements can help the jury focus on just how unlikely they really are: “So, the gun just fell out of your relative’s pocket, right on the floor of the living room, correct? And you just picked it up and put it in your pocket, correct?” can ultimately sway the jury in your favor, whether or not you add a sarcastic side note – and you won’t risk having yourself branded a bully.

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August 11, 2008

New York Times Reports on "Journal of Empirical Legal Studies" Article

The September issue of The Journal of Empirical Legal Studies will include a report on the risk/reward calculus of going to trial versus settling, and last week’s New York Times story on the subject has predictably excited fans of the latter option. (See Robert J. Ambrogi’s post on Legal Blog Watch.) Though I have not yet read the study in full, I have to take a moment to question the logic of those who see this news as a discredit to the institution of trial-by-jury.

According to the Times story, the researchers looked at 2054 civil cases that went to trial in the state of California between 2000 and 2005. In 61 percent of the cases in which the plaintiff rejected a settlement offer and went to trial or arbitration, they came out with less money than they would have had the taken the opponent’s offer. In 24 percent of the cases when the defendant rejected a settlement offer and went to trial/arbitration, they were forced to pay more than the plaintiff had requested. According to the Times, the “clear lesson” for plaintiffs is that it’s better to make a deal than fight.

The lesson is far from clear. Lawsuits are as individual and idiosyncratic as the people involved in them. To take a sample set of 2054 cases in one state and try to generalize for all litigants is to engage in logical fallacy. And we should acknowledge the study’s implication that 39 percent of plaintiffs in this set and 76 percent of defendants fared better by going to trial.

Obviously, it is often wiser to settle than fight, but the slim body of evidence collected on this subject should not be the foundation for decision-making. When push comes to shove, the risk/reward calculus is largely about the specific case and its unique circumstances. Good trial lawyers will advise clients well in working through these difficult decisions. If a sample set of plaintiffs did not fare well statistically, we should realize that innumerable determining factors were involved. The lawyers may have misjudged their cases and, in some instance, might not have had a wealth of trial experience. The Times article duly notes that the vast majority of civil cases nationwide do, in fact, settle, which means that many trial lawyers have rare opportunities to hone their skills (see post below!). But if any litigant--plaintiff or defendant--has a strong case that has been well prepared by excellent attorneys, studies like this should not interfere with a prudent and judicious evaluation of the specific situation at hand.

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