Pre-trial publicity - while sometimes a very slippery issue, can be crucial to winning in the court of public opinion.

Irvin v. Dowd (1961). Sheppard v. Maxwell (1966). In any legal-savvy person’s mind these two trials are significant for a common reason: pre-trial publicity. Embodied in this concept is a conflict between the First Amendment and the Sixth Amendment– freedom of speech and the press and the right to an impartial jury. Indeed it is imperative that these constitutional preservations are upheld; however, does that mean attorneys should keep their mouths shut at all times, unless in the courtroom?

It is important to remember that an attorney’s duty is to represent the client, inside or outside the courtroom. While some attorneys may never deal with media inquiries, one can never know when a client is retained whose case may turn into a public interest fest. When this happens, a reporter may call or an attorney might be questioned outside of the courtroom. The smartest decision you can make is to be prepared to handle the media at all times, whether before, during or after the trial. The following are some suggestions to help you be prepared from the beginning.

Know who will be talking

It looks unprofessional and unorganized if different members of your party are saying different things to the public. There are two ways to solve this problem. One would be to designate a spokesperson who handles all media questions. This may be the lead attorney or a public relations representative. If others are asked questions, they could politely say, “Let me put you in touch with (spokesperson’s name) and he/she will be able to help you.” The media will be grateful you are connecting them to a key source. Another way to make sure everyone on your side is on the same page would be to hold regular meetings to go over facts of the case and review how certain questions should be handled. This requires trust and faith within your legal party but can be powerful when executed correctly and all members are speaking as one.

Know when to talk

Consider this situation. You get a call from a reporter asking you to comment on a high-stakes suit filed against your client. What do you do? Is “no comment” your only choice? The reality is that “no comment” can be almost as harmful to your client and your case as making a reckless comment. The court of public opinion can be as threatening a place as the courtroom, so be prepared to make comments to rightfully defend your client. If for some reason you are bound by certain restrictions or are thrown off-guard by a question, feel free to say, “I’d like to get back to you on this. Would we be able to talk privately at a later time?” Set up a shorter interview, and the reporter will appreciate your considering his or her needs.

The bottom line is that you as an attorney have a right to represent your client inside and outside the courtroom and especially to defend your client in the face of negative publicity. Granted that there are no confidentiality issues, be confident in speaking to the media about your client and case. Words spoken to the public can be just as important as those spoken to the judge or jury. Pre-trial publicity, while sometimes a very slippery issue, can be crucial to winning in the court of public opinion.

This posting is republished from the Chicago Lawyer Magazine Blog "Around the Watercooler" located at:  http://h20cooler.wordpress.com/2010/