In The Court of Public Opinion

IN THE COURT OF

PUBLIC OPINION

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IN THE COURT OF

PUBLIC OPINION

Winning Your Case with Public Relations

JAMES F. HAGGERTY, ESQ.

John Wiley & Sons, Inc.

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Copyright © 2003 by James F. Haggerty. All rights reserved.

Published by John Wiley & Sons, Inc., Hoboken, New Jersey.

Published simultaneously in Canada.

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Library of Congress Cataloging-in-Publication Data:

Haggerty, James F., 1965–

In the court of public opinion : winning your case with public

relations / James F. Haggerty.

p. cm.

Includes index.

ISBN 0-471-30742-4

1. Public relations and law—United States. 2. Public relations

consultants—Legal status, laws, etc.—United States. I. Title.

KF390.5.P8 H34 2003

347.73′504—dc21

2002153260

Printed in the United States of America.

10 9 8 7 6 5 4 3 2 1

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For Elyse, who’s loved me through

summer wind and winter wind . . .

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vii

Acknowledgments

The motto on the Haggerty family crest (Hegarty in Ireland)

reads “Nec flectitur nec mutant,” which translated from the

Gaelic means: “They neither bend nor change.” Anyone who has

worked with me (or, for that matter, lived with me) over the years

knows just how true that can be. So I have many people to thank.

I start with my wife, Elyse DeMayo Haggerty, my partner in the

truest sense of the word. Among other things, she has to live with

me . . . and deserves special acknowledgment just for that. Not

only has she supported this book from the beginning, but during

the development she’s been pregnant, given birth, and cared for

our young son Liam (in addition to her fulltime job). Propped up

on the couch in the final days of pregnancy, listening to me

blather on about publishers and proposals and writer’s block—

well, you can imagine the extent to which her contribution goes

above and beyond the call of duty.

Next, I thank Robert Shepard, in my opinion the best nonfic￾tion agent in publishing. He did far more than just bring this book

to the right publisher—he nursed the project from conception to

completion, and was instrumental in helping a shaky, first-time

book author through a process that can be quite daunting (even for

someone like me who, over the years, has written numerous articles,

speeches, press materials—even fiction on occasion).

I must also thank my parents (corny though that might sound):

my mother, who grew up in rural northwest Ireland in a two-room

house with seven cousins and two grandparents, then worked

nights for 20 years so that we would have a better life; and my fa￾ther, who handles life with such grace, humanity, and outright

courage that he is nothing less than my hero. Together, they taught

me that no matter how modest your circumstances, if you work hard

and believe, you can succeed—so long as you understand what suc￾cess really is.

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viii ACKNOWLEDGMENTS

Professionally, there are more people to thank than I could ever

fit in one book. First among them is Alan (Max) Metrick, to my mind

the most skilled consigliere in the public relations business, cur￾rently the director of communications at the Natural Resources De￾fense Council (NRDC). Max has, at various times, been a mentor,

employee, business partner, and client—but has, at all times, been a

great friend. Then there’s Jeffrey Sandman (who appears at various

points in this book), CEO of Hyde Park Communications, another of

my closest friends, who works in partnership with me and is the per￾fect complement to my sometimes-scatterbrained (I would call it

“creative”) methods. Richard Schrader, among the most respected

minds in New York City politics, is a senior consultant to The PR

Consulting Group and a great friend. Rich reads a book or two each

week, and has been enormously helpful in making sure that this

book is something he would read. Bruce Berman, a senior counselor

to our firm and fellow Wiley author, gave me great advice on the

publishing business and how to effectively manage the process.

Other political, public relations, and public affairs profession￾als have influenced me enormously through the years—taught me

most of what I know—and I’m sure I’ve forgotten some, but I espe￾cially thank John C. Carns, David P. Warner, Lee Silberstein, John

Softness, John F. ( Jack) Drum, Paul DelPonte, Howard Teich, and

Richard Aborn. In the legal world, I thank C. Bryant Boydston of

the St. Petersburg, Florida, law firm of Boydston, Dabroski & Lyle,

who gave me my start. Also thanks to George P. Sape, managing

partner of Epstein, Becker & Green, who has been a client, friend,

and mentor through the years. Speaking of clients, I should partic￾ularly thank Ronald M. Green and all the attorneys at Epstein

Becker & Green, a longtime client, along with Pat Martone, Kevin

Culligan, Ed Bailey, Jesse Jenner, and all their colleagues at Fish &

Neave, another law firm that I have worked with closely. I thank all

of the lawyers and clients who have worked with me through the

years. Without them, I’d just be “playing office.”

I must also give special acknowledgment to the many talented

people who’ve worked with me and for me over the years, and

played a role in many of the examples in this book. There are too

many to mention here, but I thank them all. I also acknowledge

those who—over the course of several years—helped with the re￾search and writing of this book, including Carol McKoy, Liz Hall,

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ACKNOWLEDGMENTS ix

Matthew Kramer, Kristen Ruckdeschel, Daphne Kaye, and John

Pappas.

Finally, I must thank all the editors at John Wiley & Sons, and

particularly Debra Englander, who saw the promise of this book

from the beginning—that it would be both a treatise (in the best

sense of the word) and a good read. Here’s hoping I’ve come close

to this original vision.

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Contents

PREFACE xiii

INTRODUCTION xxi

CHAPTER ONE

WELCOME TO THE HOTSEAT: THIS IS

LITIGATION PR 1

CHAPTER TWO

ALL CASES ARE PUBLIC: WHY COMMUNICATION

IS NOW ESSENTIAL TO MOST LEGAL DISPUTES 29

CHAPTER THREE

THE RULES OF MEDIA PROCEDURE—AND HOW

TO USE THEM 55

CHAPTER FOUR

STEPPING INTO HIGH-PROFILE LITIGATION 81

CHAPTER FIVE

THE LITIGATION MEDIA CHECKLIST 119

CHAPTER SIX

LAWYERS, CLIENTS, AND PUBLIC RELATIONS

PROFESSIONALS: HOW WE CAN

WORK TOGETHER 143

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xii CONTENTS

CHAPTER SEVEN

BUILDING YOUR MESSAGE AND THE

CREDIBILITY OF YOUR CASE 173

CHAPTER EIGHT

THE PLAINTIFF’S PERSPECTIVE: ENSURING

YOUR CASE HAS “STAYING POWER” 195

CHAPTER NINE

WHEN YOUR CASE COMES TO TRIAL:

MANAGING THE MEDIA FRENZY AT

THE COURTHOUSE 217

AFTERWORD 237

NOTES 247

INDEX 249

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xiii

Preface

This is the first book of its kind. It presents a commonsense

but, in some circles, radical notion: that public relations

during lawsuits should be handled with the same seriousness and

care as any other aspect of the case. Whether you’re a business ex￾ecutive, corporate counsel, a lawyer at an outside law firm, or a sen￾ior communications professional, you need a system for managing

communications during litigation, to ensure that you “win” this

critical battle—and perhaps, in the process, the war.

Put this way, I’m sure this doesn’t seem like a radical idea at

all. Yet you’d be surprised at the extent to which communica￾tions and other public relations considerations are shunted aside

during litigation—sometimes even ignored. “We won’t try this

case in the media,” is often the knee-jerk reaction of lawyers and

clients alike.

Consider the e-mail I received just last week from a prominent

litigator on the West Coast:

We have something I’m working on that may need your services.

I’ll give you a call if it blows up.

As you’ll see throughout this book, waiting until a case “blows

up” is probably the worst time to begin communications planning

during litigation, although in reality that is when the first phone call

usually comes. Yet smart clients and their advisors are beginning to

realize that litigation public relations (or litigation communications, as

it’s also known) is, at its core, a litigation management function—as

important to the case as any other element of modern litigation

practice: legal research, expert opinion, investigations, document

management, jury consulting, you name it.

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xiv PREFACE

Moreover, while not every case will wind up on the front page

of the New York Times, lawyers and their clients should routinely ask

the following questions of all their legal matters:

• Will this case be subject to public scrutiny?

• If so, what procedures can be put in place to manage the

public aspects of the matter?

In the Court of Public Opinion will show you how to put your legal

issues to this test—and if indeed your case might be subject to pub￾lic scrutiny—show you how to use media coverage to your advan￾tage when litigating your side of the case.

Who should buy this book? Well, I’ve written it for the follow￾ing audiences:

• You are a CEO, CFO, or other business executive—or a small

business owner—and you’d like to know how to harness the

power of the media when dealing with lawsuits, government

investigations, or other legal proceedings that come your way.

• You are an attorney in the legal department of a corporation

whose job includes offering advice on those areas where

legal and public perception issues collide.

• You are an attorney at an outside law firm who realizes that

your clients are frequently finding themselves in the glare of

the public spotlight—and they’re turning to you (as always)

for wise counsel.

• You are a plaintiff looking to even up the odds in a battle

against a defendant with far greater resources.

• You are a senior communications professional—or a public

relations firm executive—looking to refine your skills in an

increasingly litigious business environment.

• You are a student—either in law school or in a communica￾tions program—wanting to learn the ropes in a practice that

is a true synthesis of the legal and public relations professions.

Every company, every nonprofit or governmental organization,

every high-profile individual—to save time, let’s just say everyone

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