Some Comments on “No Comment”

by Leezie Kim

The most frightening telephone call I’ve ever received in my professional career occurred on July 20, 1992. On an otherwise beautiful and balmy Texas summer afternoon, the main receptionist buzzed back into my shared office, "It’s ‘60 Minutes’ on line three." Suddenly, and I remember this clearly, a cloud moved in the sky, covering the sun, and the room fell into a grey darkness. It was silent because my officemates had stopped typing and were, like me, stunned silent. We stared like a frightened herd of deer at the red light blinking on my phone.

As it turned out, "60 Minutes" was investigating the local chief of police and wanted to know his reputation. Our office had recently published a study on the police enforcement philosophies and methods of the chiefs of police in the various major Texas cities. The reporter, and whose name I can’t remember because I was too relieved to find out I wasn’t talking to Mike Wallace to remember anything, could not have been more cordial, professional and considerate. Most reporters I have worked with since have been just as professional. Equally, reporters who work covering the courts and legal issues, like newspaper veteran Brent Whiting, say they find most attorneys "helpful, pleasant and generally easy to work with." But surprisingly, except for a handful of skilled professionals, most practitioners in the venerable field of law loathe dealing with the media.

I think this is natural. Lawyers are not generally "media" people. We are bookish people who spend our days quoting the words of judges and lawyers long dead and hiding behind lengthy legal briefs. Above all else, attorneys loathe dealing with the media because attorneys are not trained in media relations. We don’t know what to say to reporters. Even when our story is good, we fear that our words can somehow come back to bite us.

But like it or lump it, the fact is that almost every practicing lawyer will have some dealings with the media during his practice. Technological advances in communication and the transfer of information have made it possible for people to see and hear, in real time, the most local as well as international conflicts and decisions happening in all parts of the world. That same technology which increased the supply of news created a greater demand for news. With so many sources of information available, stories that would have never received attention before are being published to a wide audience. At same time, our society continues its trend to use the courtroom as the venue for resolving more and more of its individual and societal conflicts. All these factors contribute to the effect that the traditional work grounds of the lawyer and the reporter are converging.

A skilled lawyer should know how to maintain his ethical duties to his client, the court, and the practice of law and still effectively deal with the media interest his case raises. This article is only a primer, a quick and dirty set of guidelines to get the nervous nelly lawyer past his initial encounter with the media. But the tips are simple and effective.

Remember Your Ethical Obligations

The rule of thumb in making statements to the media during or in anticipation of trial is to avoid making any statements that would "have a substantial likelihood of materially prejudicing an adjudicative proceeding." Arizona Rules of Ethics, E.R. 3.6(a).¹ Ethics Rule 3.6 goes into great detail about what would be considered a prohibited statement, and the Supreme Court has even decided a case challenging the constitutionality of the model rule adopted in Nevada. Gentile v. State Bar of Nevada, 501 U.S. 1030 (1990).² Despite these machinations and lengthy explanations, the short version of the rule is this: don’t say anything you couldn’t or wouldn’t say in court.

This includes speculations on a criminal defendant’s guilt or innocence, opinions on any participant’s credibility and character, conjecture on why a participant would not submit to examination, and, generally, any information that is not likely to be admissible. Attorneys are not supposed to testify in court, and they shouldn’t testify in the media either.

A practical concern for all attorneys to consider is to avoid irritating the judge. No judge appreciates reading that day’s docketed case appears argued and answered by the attorney on page one of the morning newspaper. The major concern underlying the rule is jury pool tampering. Sure, the public has a right to know, but that right should not vitiate an individual’s right to fair trial.

In an attempt to strike a balance between these competing interests, the drafters of Ethics Rule 3.6 have provided a clear safe harbor of specific types of information an attorney can disclose to the public and media. The types of information are detailed in Ethics Rule 3.6(c), but basically fall into four categories: the general nature of the claims and defenses, a request for assistance from the public, a warning of danger if there is reason to believe there is a likelihood for substantial harm, and the basic, undisputable facts of a case. Most of the time, this is all a reporter needs to write her story: who was arrested, when and where did it happen, what was the suspect arrested for, and what is the suspect’s defense. Anything more could be beyond the scope of the safe harbor and unnecessary anyway.

Get Beyond "No Comment" and Move Past the Initial Fear

A seasoned and salty reporter once said that "I’ve never seen a lawyer at a loss for words until he’s talking to a reporter." Many lawyers hold to a "no comment" policy with the media and advise their clients to do the same. A "no comment" certainly avoids any ethical questions and preserves trial strategy. But it isn’t necessarily always the best advice an attorney can give to his client. In some situations, a client’s potential detrimental effect on its market reputation is far greater than its actual legal liability. The problem with a "no comment" policy is that it makes the attorney, and by association his client, look defensive, like there is something to hide. One of the most powerful understatements a reporter can make is that a party had "no comment." The trick is having your cake and eating it too; getting beyond "no comment" and staying within the ethical rules.

To begin with, when the reporter asks you if he can ask you a few questions, go ahead and say "yes." Find out what the reporter wants to know. Often, the reporter needs an explanation of a legal procedure. Just as lawyers are not trained in media, reporters are not trained in law. The law is a whole other language that reporters don’t have the time to learn. Reporters need an interpreter.

"It would be very helpful for my story under my deadlines to have an attorney use his expertise to tell me the importance of a 300-page opinion is buried on page 79," comments Whiting about the demands of a reporter’s deadlines.

Sometimes, all a reporter wants to know is the trial schedule. This could mean just reviewing the scheduling order with a reporter and putting it in layman’s terms.

"I’ve found most attorneys are willing to speak at little bit at least in general about the case to explain the legal procedures involved," says Victoria Harker, a reporter for nearly 13 years.

These type of comments on procedures and schedules fall within the safe harbor of the ethical rules. More importantly, you are establishing a relationship with the reporter who can be a very useful person. Reporters are excellent researchers and they are not bound by the same rules that limit attorneys. Reporters have access to enormous files of information collected and maintained by their own news organizations and have the ability to contact witnesses and parties. A good relationship with a skilled reporter could provide information and insight that an attorney might not have considered.

If You Really Can’t Comment, Say So, But Say It Right

"What attorneys have to understand is that reporters understand there are times when the best thing an attorney can do for his client is not to say anything," says Whiting. "Maybe an attorney has to say ‘I can’t talk to you right now.’ It’s just nice to hear that from the attorney directly."

When a reporter asks a question you really can’t answer for ethical or other reasons, go ahead and say so. Johnny Cochran is a master at this "I can’t tell you that now, but what I can tell you is..." technique.

"When I get calls from reporters about the merits of a case, I refer them to the court or to the regulatory agency involved at which the pleadings are recorded," says James Vieregg, an environmental attorney in Phoenix who was recently pursued by New Times in conjunction with a story on the effects of legislation he helped draft which allowed a small business to limit its environmental liabilities. Reviewing the pleadings or a decision with a reporter is an excellent way of avoiding making any comment, but avoiding making "no comment."

"Maybe there is a motion in limine that I’d find interesting," says Whiting. "Just knowing that you’re planning to file a summary judgment motion in three weeks helps."

Prepare for On-Camera Appearance Like You Would for Trial

The medium attorneys and clients dread the most is television. Being in front of a camera makes most people feel awkward and self-conscious. Another problem with television is that news stories are short, and most issues are complex.

"You talk to a reporter about a complex subject and when the story airs, there is rarely more than one sentence broadcasted," explains Tom Henze, an attorney who takes a "no comment" policy. "You have no discretion over what is put in the story and what’s actually used is usually taken out of context...Why bother?"

Sometimes backing away without comment is the best answer. But treat those television cameras like tigers: show no fear and don’t run away. Walk away calmly, doing your best to ignore the cameras.

If you and your client decide to take the offensive and do an on-camera interview, prepare for the interview like you would for trial. First, know to whom you’re going to be talking. Telephone the reporter in advance to break the ice. Consider this your chance to voir dire the reporter. Ask her what she is looking for in the interview. Discuss ground rules. Watch other broadcasts she has done. Contact your other media contacts and ask them about this reporter’s style.

Another advantage with taking the offensive is that you have some control over the time your story is aired. Phoenix, as a media market, has an unusually large number of television news stations staffed by relatively young and very competitive reporters. If your story is newsworthy, each station will want your interview and will probably be willing to work around your schedule. Consider the impact of a Monday morning interview which airs on Monday at 6 p.m. versus the same interview given late Friday afternoon which airs on Friday’s 10 p.m. or Saturday’s newscast.

In actually preparing what you are going to say in the interview, think in advance about the positive points you want to highlight. Phrase them in short answers avoiding all legal jargon. Practice answering questions like you would for an appellate argument. Practice keeping good eye contact with the reporter.

Remember that television is visual. Therefore, getting ready for your interview, make sure your setting is appropriate. Media consultants say that for lawyers, the classic navy suit without patterns is still best and that women should wear necklines up to the larynx. Most of all, try to keep the interview relaxed. Use the reporter’s first name in conversation.

If Necessary, Call in the Cavalry

Keeping all of this in mind, remember your limitations. Attorneys are not generally skilled in dealing with the media because that is not our primary job. Some clients have in-house media relations personnel. In that case, all media queries should be directed to the media relations person who can present a unified and consistent front to the public. But if your client doesn’t have those resources, don’t necessarily take on the job yourself. There are a number of professional media consultants in Arizona who are available and trained in this very field. Many are experienced former journalists. Let them take on Mike Wallace so you can get to your brief.

Leezie Kim is an attorney with Quarles & Brady. She was a journalist and has been published in The Houston Post, The Arizona Republic, Smithsonian, and Cosmopolitan.

ENDNOTES:

1. Arizona Rules of Ethics, E.R. 3.6(a).
2. Gentile v. State Bar of Nevada, 501 U.S. 1030 (1990). The Court limited its holding in this case to the Nevada ethical rule on trial publicity. The Arizona State Bar in 1995 petitioned to alter the Arizona Ethics Rule 3.6 to conform with the Supreme Court’s holding in Gentile which further limited the information an attorney could disclose to the media. The petition was rejected. The boundaries of Arizona Ethics Rule 3.6 have not been tested in a reported case before or since then.