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Aug 20 2013

On Trying Your Case In The Media

Embattled Yankee third baseman Alex Rodriguez added tough-talking, brash, defense attorney Joseph Tacopina to his defense team and Joe took off for the races. Not one to ever say no to a camera, Tacopina began a flurry of interviews where he accused the Yankees Organization of everything from malpractice regarding treatment of A-Rod’s injuries; to tanking the ALCS last year by playing A-Rod though they knew he was hurt; to engaging in publicity stunts (ain’t that the pot calling the kettle black?).

Tacopina is no stranger to high-profile cases and he has handled many of them very successfully. But his “the best defense is a strong offense” methodology may backfire here if he does not have the goods to back up some of these outlandish claims. Already the strategy has caused some damage to Team Rodriguez. For instance on the Today Show he stated: “If the vice president of Major League Baseball would be good enough to waive the confidentiality clause, I’d love nothing more than to talk about Alex Rodriguez’s testing history, various things,” Tacopina said. “I would love nothing more.” In response, Matt Lauer pulled a release form from out of nowhere and stated that the MLB had faxed it to NBC that morning and then asked the lawyer if he would let A-Rod sign it so that all sides could talk openly about his medical and doping issues. Tacopina was clearly caught off-guard and was only able to resort to a “We need to examine the document before we can respond” defense. He later said that the letter was invalid unless the players’ union would also sign and wouldn’t you know, minutes later the players’ association said they would sign it, so there went that argument. Then while appearing on CNN’s “Situation Room” Tacopina said, “Clearly there was a relationship — a consulting relationship” between Rodriguez and Anthony Bosch, founder of the Biogenesis clinic. Onlyproblme is that admission runs counter to what A-Rod’s PR firm stated over the winter, when an ESPN report claimed Bosch had personally injected A-Rod with PEDs: “The news report about a purported relationship between Alex Rodriguez and Anthony Bosch are not true,” a spokesman for A-Rod said in late January. “He was not Mr. Bosch’s patient, he was never treated by him and he was never advised by him. The purported documents referenced in the story, at least as they relate to Alex Rodriguez, are not legitimate.” So it makes the viewing public say “Which is it?” or “Do you have any idea what you are talking about?”

This situation exemplifies the danger of handling a high-profile, high-publicity case as an attorney. It’s one thing to be sought out for quotes or a TV appearance to give your opinion about an on-going case that you are not involved in. If you make a mistake or say something wrong, only your reputation is hurt. When you are talking about a case that you are one of the attorneys of record, however, your missteps hurt your client’s case and your client. It is no coincidence that the word chosen to designate when a lawyer is acting on behalf of another person is representation. You are representing or standing in the place of the client. Therefore your words have greater meaning and import. Changing a client’s position on the public record as Tacopina did here can be very damaging. Coming out like a bull in a china shop also makes you a target. Do you think Matt Lauer would have set up another attorney for that Gotcha moment if the lawyer had been more constrained in the media and just said “No Comment.” No way. Matt Lauer is no Jerry Springer or even Mike Wallace; this type of gamesmanship is not his style. But Tacopina’s methods made him and A-Rod fair game for the tactic.

OM Mike headshotI have been fortunate enough in my practice to have handled many high-profile matters over the years. It’s great and nerve-wracking to see a phalanx of microphones and television cameras. It’s hard to suppress the desire to grab 15 minutes of fame; to let your family, friends and clients see you on the front lines of a big case; to expose yourself and your skills to the public and know that millions of folks will see your name and maybe call you when they need a lawyer! But does it help the client? That should always be the first rule of whether you will ever proceed past “No Comment.” There are rare occasions when it is wise to say something about the case especially if the media has been piling on – your client will most likely demand it. In fact, that is the time that the Professional Rules permit you to make a meaningful statement. Generally, in NY anyway, the ethical rules state: “A lawyer who is participating in or has participated in a criminal or civil matter shall not make an extrajudicial statement that the lawyer knows or reasonably
should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” (Rule 3.6a). If you think that definition is vague enough to drive a truck through, you are right, but it gets narrower in the next section: “A statement ordinarily is likely to prejudice materially an adjudicative proceeding when it refers to a civil matter triable to a jury, a criminal matter or any other
proceeding that could result in incarceration, and the statement relates to: (1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness or the
expected testimony of a party or witness; (2) in a criminal matter that could result in incarceration, the possibility
of a plea of guilty to the offense or the existence or contents of any confession, admission or statement given by a defendant or suspect, or that person’s refusal or failure to make a statement; (3) the performance or results of any examination or test, or the refusal or failure of a person to submit to an examination or test, or the identity or nature
of physical evidence expected to be presented; (4) any opinion as to the guilt or innocence of a defendant or suspect in a
criminal matter that could result in incarceration; (5) 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; or
(6) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.” Is there anything else to talk about frankly? As far as media statements made by lawyers, this rule is more honored in the breach. Following the rules essentially means shutting up, as hard as that may be.

But there are some exceptions. You can talk about general calendaring issues; you can restate matters that are already public record; you can say that you are conducting an investigation into any area; etc etc. But the exception I was referrign to in the earlier paragraph is contained in Rule 3.6d:

a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

And that rule should also be the general guideline for talking to he media about a pending case. If the paparazzi and reporters are dumping trash onto your client and skewing evidence or the circumstances of some important facet of the case, then you have to address that and right the ship but only if you can do so succinctly. You should go over carefully with the client what it is you want to say and how you are going to say it. This also needs to be done more often now as clients (and their publicists if they are in the entertainment industry)are concerned about their social media presence and don’t just want the bad articles out there. Draft a well-written concise press release and give it to the media so that a counter-article is available and provides some balance when the potential jurors Google the case.

That brings me to the last topic I want to cover on this issue. The client. In criminal cases, clients rarely -very rarely benefit from any media exposure. Remind them that the media is more fleeting now than ever and that a favorable resolution to the case must be the prime motivation and focus. Remind them that the more you interact with the media, the longer the story gets propelled in the media and grows “legs.” Tell them to dress conservatively but formally for court. Remind them that pulling a jacket over the head does nothing but scream “Guilty” to the average viewer. Stand up tall, don’t smile, look straight ahead and ignore the questions shouted at them no matter how taunting or demeaning. For the lawyers, I recommend stopping in front of the courthouse before the maelstorm and just issuing a short prepared statement along the lines of “We will not comment on the case while it is pending.” Have the client stand silently next to you and then move on. Most reporters just want a picture and the ability to say you said something. I find this strategy cuts down on them chasing you up the steps or down the hallway. Often, I have told them ahead of time of what my intention is just to cut the circus atmosphere short.

Handling a media-intense case is a balancing act for even the most seasoned lawyer. Keeping your focus on your client and the need to act professionally will help steer you through the tempest until it subsides. Of course, winning the case is the best solution to all of this and that must remain the only goal.

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