1 Comm 3310 Media Savvy Litigation

2 Brett Shipp - Southlake 2

3 Brett Shipp - Landfill 3

4 Brett Shipp - Prime Prep 4

Gentile v. State Bar of Nevada “An attorney’s duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client.” “An attorney’s duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client.” -Mr. Justice Kennedy

6 U.S. District Judge Lewis Kaplan Southern District of New York “…dealing with the media in a high-profile case probably is not a matter for amateurs. “…dealing with the media in a high-profile case probably is not a matter for amateurs. “…professional public relations advice was needed.”

7 The Internet Electronic Filing Aggregators Blogs Main Stream Media

8 Electronic Filings

9 Twinkie Gate

10 What Makes a Case Newsworthy? A hard luck story A hard luck story Allegations of illegal conduct Allegations of illegal conduct High profile litigants High profile litigants Unusual or humorous claims Unusual or humorous claims

11 NBC Today Show Bra Case

12 Divorce case

13 Tricia Smith NBC 13

14 What Makes a Case Newsworthy? Allegations of discrimination Allegations of discrimination A situation that could impact a large number of individuals or companies or illustrates a larger issue A situation that could impact a large number of individuals or companies or illustrates a larger issue An attorney who likes to try their cases in the court of public opinion An attorney who likes to try their cases in the court of public opinion

15 Gloria Allred

16 News Conference

17 Social Media Legal Issues Defamation and Privacy Torts Defamation and Privacy Torts Intellectual Property Infringement Intellectual Property Infringement Trade Libel Trade Libel Securities Fraud Securities Fraud Gun Jumping Gun Jumping Selective Disclosure Selective Disclosure Forward-looking statements Forward-looking statements Employment Issues Employment Issues User Privacy User Privacy Discovery Discovery HIPAA HIPAA

18 Ethical Considerations

1919 Rule 3.07 Texas Disciplinary Rules of Professional Conduct (a) In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel or assist another person to make such a statement.

20 Rule 3.07 Texas Disciplinary Rules of Professional Conduct “…the likelihood of a violation increases if the adjudication is ongoing or imminent”

21 Not Everyone Follows the Rules

22 20/20 Anna

23 How to Respond Within The Rules

24 Hardin Interview

2525 Commentary Because no body of rules can simultaneously satisfy all interests of a fair trial and all those of free expression, some balancing of those interests is required.

2626 WHAT WILL GENERALLY PUT THE LAWYER ON THIN ICE A statement about the character, credibility, reputation or criminal record of a party…or the expected testimony of a party or witness. A statement about the character, credibility, reputation or criminal record of a party…or the expected testimony of a party or witness. A statement about information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial. A statement about information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial.

2727 WHAT WILL GENERALLY PUT THE LAWYER ON THICK ICE The general nature of the claim or defense; The general nature of the claim or defense; Information contained in a public record; Information contained in a public record; That an investigation of the matter is in progress, including the general scope of the investigation, the offense, claim or defense involved; That an investigation of the matter is in progress, including the general scope of the investigation, the offense, claim or defense involved; Except when prohibited by law, the identity of the persons involved in the matter; and Except when prohibited by law, the identity of the persons involved in the matter; and The scheduling or result of any step in litigation. The scheduling or result of any step in litigation.

28 The Right Way Anticipate controversial issues Anticipate controversial issues Prepare responses in advance with review by legal team Prepare responses in advance with review by legal team Act quickly Act quickly

29 During Trial Help reporters follow evidence and case storyline Help reporters follow evidence and case storyline Educate reporters concerning trial developments and procedures Educate reporters concerning trial developments and procedures Provide background information for reporters who visit periodically, but do not stay for the whole trial Provide background information for reporters who visit periodically, but do not stay for the whole trial Monitor coverage and correct misinformation Monitor coverage and correct misinformation

30 Common Misconceptions Issue only involves high profile criminal cases. Issue only involves high profile criminal cases. Ethics rules require saying “No comment.” Ethics rules require saying “No comment.” There is no benefit to the client to comment on legal issues. There is no benefit to the client to comment on legal issues. Saying “No Comment” is the best way to protect your client’s interests. Saying “No Comment” is the best way to protect your client’s interests.

31 Common Misconceptions About Litigation Coverage The media is interested in the legal issues. The media is interested in the legal issues. You can’t respond if you don’t know everything. You can’t respond if you don’t know everything. You will get a fair shake if you don’t respond. You will get a fair shake if you don’t respond. Responding will destroy the attorney-client privilege. Responding will destroy the attorney-client privilege. Responding will get you in trouble with the court. Responding will get you in trouble with the court.

32 The Right Way Respond immediately to inquiries. Respond immediately to inquiries. Establish a rapport with reporter. Establish a rapport with reporter. Understand motivation for story. Understand motivation for story. Establish client’s role in story. Establish client’s role in story. Provide response before a major investment is made in story. Provide response before a major investment is made in story. Provide backup information. Provide backup information.

33 Enron

Enron: When Everything Turns Against You

WhistleblowersAugust 22, 2001Lay meets with Watkins Initial Investigation Report October 8, 2001Report on Watkins Investigation to Audit Committee The PressOctober 17, 2001Wall Street Journal Stories Begin SEC InquiryOctober 22, 2001Enron reports SEC inquiry Auditor ConflictNovember 2, 2001Andersen reverses advice RestatementNovember 8, 2001Enron files restatement with SEC BankruptcyDecember 2, 2001Enron files for bankruptcy and announces layoffs Department of JusticeJanuary 8, 2002Announcement of criminal investigation Second InvestigationFebruary 2, 2002Powers Report issued, critical of executives, directors, and counsel Congressional Testimony February 7-12, 2002Executives appear before Congress, Skilling testifies Indictments beginMarch 2002Andersen indicted

10/17: WSJ articles Begin Media Before Enron’s Fall: Triggers Stampede Source: Dow Jones Enron Common Stock Price and Volume

Market Fears "Death Spiral" Worries and rumors about Enron's financial strength could be found in the stock market Wednesday [10/24/01]. Goldman Sachs analyst David Fleischer said he heard people voice concerns about a possible "death spiral" in which increasing credit concerns about Enron would decrease the number of people willing to do business with the company, which would in turn weaken its finances and lead to further business reductions. Enron is facing a problem with “trust and credibility. It's not easy to regain something as basic as trust,” he said. DX 600

Media Frenzy After Fall of Enron

UNEVEN JUSTICE By BETHANY MCLEAN AND PETER ELKIND February 04, 2004 “Today, Martha Stewart is making headlines all by herself, her criminal trial a staple of the nightly news programs. Kenneth Lay, meanwhile, remains safely ensconced in his multimillion- dollar Houston condominium. More than two years after Enron declared bankruptcy, he still hasn't been charged with wrongdoing.” “Shouldn't he have to face a criminal trial for his role in Enron's fraud? Prosecutors could be just as "creative" in finding ways to charge Mr. Lay as they have been with Ms. Stewart. Otherwise, the perverse lesson will be that the legal system rewards ignorance but punishes those who dare to proclaim their innocence.”

UNEVEN JUSTICE By BETHANY MCLEAN AND PETER ELKIND February 04, 2004 “Today, Martha Stewart is making headlines all by herself, her criminal trial a staple of the nightly news programs. Kenneth Lay, meanwhile, remains safely ensconced in his multimillion- dollar Houston condominium. More than two years after Enron declared bankruptcy, he still hasn't been charged with wrongdoing.” “Shouldn't he have to face a criminal trial for his role in Enron's fraud? Prosecutors could be just as "creative" in finding ways to charge Mr. Lay as they have been with Ms. Stewart. Otherwise, the perverse lesson will be that the legal system rewards ignorance but punishes those who dare to proclaim their innocence.”

Bethany McLean, Fortune staff writer and author of “Smartest Guys in the Room: The Amazing Rise and Scandalous Fall of Enron,” July 9, 2004 online chat. “[A] few things are clear. Enron was a fraud, and Ken lay [sic] was the company’s CEO for almost all of its history. I think it would be a travesty if he could just proclaim his cluelessness and walk away, leaving junior people to bear the consequences of a culture he created.”

Loren Steffy, Task Force Needs to Refocus After Wishy-Washy Verdict, Houston chronicle, July 22, 2005 at Business, pg 1. “From the beginning, the Enron prosecution has had one true measure of success: Lay and Skilling in a cold steel cage.”

February 27, 2006 Excerpt from Loren Steffy’s Commentary on his Houston Chronicle Blog, “Remember the Lies.” “The problem is that Enron executives, including Lay and Skilling, repeatedly misled investors. You can hear that on the conference calls played in court. You can see that in the company’s financial statements.

Media Impact on Jury

Jurors’ questionnaire responses:  “I believe that the rape of Enron and its [employees] and stockholders could not have happened without their knowledge.”  “I find it morally awful that these people are still running loose. I believe this should be a nice short trial, all of them go to jail, and not a country club.  “The government should hang Ken Lay and his underlings.”  “These guys are guilty, they don’t even deserve a trial. Let all the people they ruined have at them.”

Houston Jury Pool Statistics Over 86% have heard of or read about Enron-related cases, and one out of every eight jurors has chosen to read an Enron-related book or see an Enron-related movie. Exactly 80% of the jurors, or 224 out of 280, expressed preexisting negative views toward defendants, indicated they had opinions about the perceived role defendants played in Enron’s collapse, or expressed anger about what happened to Enron’s “victims.” 60% have an opinion about the cause of Enron’s bankruptcy, and nearly all of these believe Enron was brought down by “greed,” “accounting fraud,” “lie[s],” “scheming to increase profits,” and other “criminal” and “illegal activities” by upper management.

Linda Lay Interview: How Not to Respond

New York Times Article: How to Respond

By KURT EICHENWALD Published: February 09, 2003 New York Times Article: How to Respond