Persuasive Litigator

Don't Say Nothing: The Limitations of "No Comment" as a Litigation Crisis Strategy

By Dr. Ken Broda-Bahm:

A Google search on the phrase "no comment" appearing in recent news yields thousands of hits -- various individuals and organizations responding in time-honored fashion to some sort of crisis.  Recently, for example, after CNN Analyst Roland Martin had his finger too close to the Tweet button during the Super Bowl and broadcast a homophobic response to David Beckham's underwear advertisements, the network responded to mounting cricitism and petitions with "no comment" for several days before ultimately suspending Martin.  While careful decisions can require delay, the problem in a sustained "no comment" approach is that the silence fuels doubt and uncertainty while allowing the other side of the story to hold the floor uninterrupted.  Given that you can't "not communicate," your silence is inevitably interpreted in a variety of ways, most of them quite negative. 

Recently, I was approached by a company that had just received some bad press on an impending lawsuit.  Understandably, the in-house and outside counsel were united in a "please don't respond" position, while the PR department -- also understandably -- pleaded, "we've got to say something."  Ill-advised public statements naturally carry a risk of creating evidence and complicating a future trial defense.  However, when the litigation related crisis has the public's attention, silence from a party creates a cloud of doubt and an empty space that can only be filled in by those on the other side.  That route creates problems from both a PR perspective and a legal perspective by tainting a venue and influencing potential witnesses.  Making the argument that in this day and age, the time-honored "no comment" is a presumptively flawed prelitigation strategy, this post focuses on striking the intelligent balance:  avoiding both a "no comment" as well as a bad comment. 

Keep Your International Arbitration out of the Tower of Babel

By: Dr. Ken Broda-Bahm -

So, a retired Brazilian judge, two American litigators, and three German engineers walk into a bar...  Okay, so it wasn't a bar, it was an international arbitration, but the potential for miscommunication is just as great as the joke intro would imply.  This one took place in Sao Paulo, Brazil and it was preceded by a two-day mock arbitration that I facilitated in order to help our litigation team prepare the best arbitration case possible.  Any case that makes it to arbitration or trial faces its fair share of hurdles.  The need to teach, to leverage the best law, to overcome case weaknesses, to maximize strengths, and to wrap it all up in a convincing message, all adds up to a pretty tall order.  But, add to that the barriers of language and cultural difference, and the tall order becomes venti. 

As legal disputes inevitably become more international in nature, arbitration emerges as one of the more critical ways to solve disputes that transcend borders.  As international arbitration increases, however, we can expect an increase in the challenges in just getting the message across.  In appreciating these challenges, consider a few things. 

Learn from Christine O'Donnell's Possible 'Witch Trial': Be Cautious in the Court of Public Opinion

By: Dr. Ken Broda-Bahm - 

When Christine O'Donnell, the Tea Party favorite who won the Republican nomination for a Delaware Senate seat before losing in November's general election, received word of an U.S. Attorney's Office investigation and possible charges stemming from misuse of about $20,000 in campaign funds to pay her personal expenses, she immediately took to the airwaves.  On a variety of network and cable news shows, she unequivocally denied the charges and went further to call the investigation "thug tactics," and a politically motivated attempt to settle scores by enemies on the right and the left.  She does everything but call the investigation a "witch hunt"...but that is understandable since this is the same candidate whose troubled campaign was torpedoed when video surfaced showing a younger O'Donnell appearing on Real Time With Bill Maher claiming that she had "dabbled in witchcraft" and had to respond with a campaign advertisement beginning with the unforgettable declaration that "I am not a witch."   

So what does this entertaining episode of campaign-craft have to do with a litigator's advocacy needs?  Litigators, like politicians, understand that there is a court of public opinion that may matter more than, and certainly earlier than, the decisions that issue from hearing rooms and courtrooms.  So, is it a good idea to, like O'Donnell, get out in front of the story and get your side on the record?  Should a corporation that finds itself the subject of litigation similarly embrace a litigation PR strategy?  The answer, supplemented by a recent survey on General Counsel behavior, is yes, but it depends on how you do it.

Don’t (Always) Waste a Strike on the Crazy Juror

by: Dr. Kevin Boully

They show up in nearly every jury panel.  An unexpectedly flamboyant or oddly eccentric juror who offers too much (irrelevant!) information at the drop of a hat, responds to your oral voir dire question about lawsuits against corporations by telling you about his third cousin Simon’s run-in with a cantankerous Big Box store employee in Akron, Ohio.  “That store is a spacestation for dictators!”

 

He looks like a wildcard and he’s given you reason to fear he may be opposed to your case.  You hate the risk of leaving him on the panel for simple fear of what he may say and do in deliberations, but you also expect the quiet female juror in the corner may have it out for your corporate defense client.  What can you tell your client if the oddball commandeers the jury?  Shouldn’t you have seen it coming?  You use your last peremptory strike on “Kramer,” allowing the high risk female juror to sneak into the jury room and help decide the fate of your case.  A few insights help inform this either/or jury selection choice in the future. 

 

Take It From Rep. Joe Barton: Don’t Be A ‘Friend Of The Devil’

by: Dr. Ken Broda-Bahm

Here is a litigation lesson from the world of politics.  The Vice President, along with many other Americans, described it as ‘incredibly insensitive, outrageous, and astounding,’ but last Thursday, in the U.S. House of Representatives, Texas Congressman Joe Barton was facing BP CEO:

“I’m ashamed of what happened in the White House yesterday.  I think it is a tragedy of the first proportion that a private corporation can be subjected to what I would characterize as a shakedown — in this case a $20 billion shakedown.  … I’m not speaking for anybody else, but I apologize.”

Hours later, Representative Barton was taking back that statement in order to deal with the ensuing uproar from both Democratic and Republican circles.  

“I apologize for using the term ‘shakedown’ with regard to yesterday's actions at the White House in my opening statement this morning, and I retract my apology to BP.”

What we see here is an unsuccessful attempt by Rep. Barton to reframe the issues.  On the 59th day of the continuing Deep Horizon oil spill, and two days after President Obama’s oval office speech asking BP to set up a $20 billion dollar fund in order to deal with the consequences of the oil spill, the Congressman seemed to sense a chance to focus the public’s attention on something other than the flowing oil, suffering wildlife, and spoiled beaches.  The President’s demand was unprecedented, and on the heels of an unpopular health care reform law and in the run up to a climate bill being successfully framed as an “energy tax,” the public might have seemed primed to accept Barton’s characterization of the fund request as yet another example of an outrageous power grab by the Democratic President. 

So why did Barton’s gambit fail so badly?  Simply because the party that would have benefitted from this re-framing, BP, is so profoundly unsympathetic in the public eye, and that made Representative Barton look like a friend of the devil.  This failed reframing exercise carries some important reminders for litigators.