Is there a reason lawyers are hesitant to use the media against an adversary?

Question

I'm not a lawyer, so I'm only familiar with a small cross section of civil suits, but it seems to be a general trend that lawyers are very hesitant to publicize any part of a case. Even when the adversary has huge vulnerabilities because of the nature of the civil suit, the lawyer insists you keep quiet, in order to "not make them mad." Instead, you pay the lawyer to keep filing documents and orders, asking for "christmas lists," etc, while they other side does the same, and in the end, it's often a war of attrition, and the little guy loses. However, anecdotally, it seems that a number of cases resolve themselves within hours or days after an appropriate post on social media or call to a journalist. Corporations that rely heavily on their public image and understand their exposure will suddenly see that balance shifted against them and do everything they can to settle as humanely and quickly as possible.

My first conclusion is that using social media cuts into the usual business of lawyering, and so culturally, this would not be welcome around law firms. Is there a better explanation for this?

Answer 1

This appears to be a complaint about lawyers using the legal process to achieve what their client wants. Forgive me, but this seems to be like complaining that doctors only want to cure the client's disease, architects only want to design the client's buildings and generals only want to kill the client's enemies.

Your lawyer is not your business strategist or your life coach!

A civil case is always about the money. If you are pursuing a civil case over a principle then you are going to spend a lot of money and probably lose.

The use of a lawyer should always be part of your wider negotiation strategy in the same way that your armed forces are part of your diplomacy; in both cases the threat of use is usually better than the actual use.

A civil case always follows a failure to successfully negotiate. Not all by any means, but most, civil cases would be better settled by agreement than litigation by all parties.

If you believe that your objectives can best be served by a social media campaign, political pressure, etc. then go for it. Your lawyer can advise you what the risks are wrt to defamation etc. but ultimately how you choose to pursue your goal is up to you.

Lawyers, understandably, look for legal solutions. A public relations professional is far better placed than a lawyer to inform your media strategy.

Answer 2

For the sake of simplicity, let's imagine this is a straightforward case where Alice alleges that Bob negligently injured her during a sporting event.

It locks you into a narrative

If Bob tells the media that, say, Alice was being careless, and that was the cause of her injury, Bob has now conceded at least the following:

1. Alice was injured at all.
2. Bob was present and witnessed the injury.

Additionally, if Bob wants the media to believe him, he will probably have to concede the following as well:

1. Bob physically touched Alice.
2. Bob was paying attention to Alice at the time.
3. Some acknowledgement of how serious (or trivial) Bob believes Alice's injury to be.

If Bob is sufficiently foolish, he may also end up saying one or more of the following (all of which are basically gifts to Alice's counsel):

1. Bob "made a mistake."
2. Bob intentionally did [something more specific than touching Alice, such as deliberately running into her].
3. Bob "shouldn't have" [done that thing].
4. Bob "didn't think ahead."
5. Bob "wasn't expecting" an injury to occur.
6. Bob was the proximate cause of the injury.

Bob is going to be reliant on an assumption of risk and/or contributory negligence defense (or a similar argument), and will not be able to credibly raise most other defenses. This may weaken his case, both because some defenses have been forfeited, and because Alice will no longer need to prove any of the above statements. Also, Alice can depose Bob and ask him to elaborate on his statements to the press, or use his statement to impeach him during cross-examination, which is especially useful if any element of Bob's press statement is false, misleading, or inconsistent.

It can antagonize the judge

In general, judges prefer for cases to be tried in front of them, and not in the court of public opinion. This is especially likely to annoy the judge if Bob's press statement emphasizes something which the judge has decided to exclude, or facts which are not legally relevant (such as Alice's character).

Judges are supposed to be impartial, but they have to make a large number of subjective decisions throughout the trial. Not all of these decisions can be easily appealed, and due to the harmless error standard, an appeal may not be productive anyway. So antagonizing the judge is usually a bad plan.

It is irrevocable

Once you make a statement to the press, it's out there. The public will read it and make up their minds, one way or the other. Lawsuits can take months or even years to fully litigate, and what looks like a slam dunk case today may turn into a quiet settlement agreement tomorrow. It's harder to make that transition if you've released a confident press statement explaining in great detail why your side is right and the other side is wrong. This gets even worse if you actually manage to lose the case. At that point, the old press statement is just embarrassing.

Answer 3

No because lawyers have no special ability to use the media. Anyone can pay for airtime. However, lawyers do purport to have mastery of persuasion. In reality, sales people (sometimes called agents) are the true masters of persuasion. That's why they make all the money!

Nothing secret or magic. In summary, lawyers have no special ability to use the media. As for playing outcomes, predicting the future is nearly impossible. Just ask a financial trader.