The Age of Obama & The Court of Public Opinion: New Opportunities for Trial Lawyers

Jonathan Berstein
May 4, 2009 — 1,114 views  
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The Age of Obama could be a particularly lucrative period for trial attorneys in which to pair legal strategy with effective Internet-centered communication to the Court of Public Opinion, communication that marries the best legal strategy with sound public relations/issues management techniques.

I am not an attorney. But wise legal counsel have told me that while it violates ethical guidelines for attorneys to influence the jury pool, communicating with the Court of Public Opinion is entirely appropriate for the purposes of:

  • presenting an accurate picture of your client to the media and other audiences;
  • informing the public of wrongdoing by specific organizations and/or industries; and,
  • telling the public how to access legal counsel when they believed their rights have been violated.

[The Litigation Environment]

Now, as a layman (who happens to work with counsel a lot) let me assess the apparent litigation environment created by the economic downturn and the messaging done by President Obama and members of his administration.

  1. Fear.

    Everyone's scared about money - making it, spending it, having it taken away. Fear often translates into anger, and anger seeks a target.
  2. Many Industries Have Damaged Reputations.

    Specific industries have been publicly tarred and await feathering, e.g., bankers, auto manufacturers (and their related loan companies), and other types of lenders. There has also been significant collateral damage to the reputation of all big businesses, whose credibility factor will be lower than in the past at the beginning of any contentious legal matter pitching business vs. consumer.
  3. Hard Decisions Coming.

    Even industries with generally good reputations will be making hard decisions that will have a negative economic impact on all of their stakeholders (important audiences, internal and external). In the next several years, there will be far more than the usual number of layoffs, foreclosures, collection actions and other highly unpopular yet legally sensitive actions. 4. Mistakes Convert to Complaints.

    When lenders or other businesses take action against individuals or groups, they are going to make mistakes, and when they do, trial attorneys will be there to represent the rights of the victims via individual or class action complaints.

[The Communications Environment]

  1. The 24/7 News Cycle.

    The media - and that has to include major blogs and websites - is operating on a vociferous 24/7 news cycle and tends to have an "anti-big business" bias that has been exacerbated by the types of messages communicated in the past two years by both the Bush and Obama administrations.
  2. So Many Choices.

    The means by which trial counsel (and others) can communicate with prospective clients and the media has expanded exponentially in recent years.
  3. The Weakness of Defense-Focused Firms.

    Most (not all) law firms primarily focused on defense are still using 20th Century strategy and tactics to communicate with stakeholders, ceding a distinct advantage to savvy trial attorneys.
  4. Corporate Crisis Management Practices.

    Crisis management is sometimes an integral component of a corporate communications office and, when it is, plaintiff's counsel needs to be ready to challenge that capability. At the same time, many companies are weak in this area and you will have unique opportunities to play on that weakness if you are prepared to do so.
  5. The Mistakes Made by Some Trial Attorneys.

    Plaintiff's counsel who do understand what's typically called "New Media" tend, in my experience, to employ it incorrectly in terms of strategy, messaging and tactics. Specific mistakes can include:
  • Failure to understand which tactics will best reach targeted stakeholders for any given matter; there is no "one tactic fits all" approach.
  • Misunderstanding - fueled by "we're gonna bilk the lawyers because they don't understand it" consultants - about what it should really cost, for example, to run an effective Pay-Per-Click (PPC) advertising campaign, create a website, or launch a blog.
  • Inappropriate messaging - most commonly, "hype."

[The Opportunity]

Trial counsel has the opportunity to legitimately employ the Court of Public Opinion in support of wronged parties via:

  1. Search Engine Optimization.

    There are many techniques that can be employed to ensure that you control what is found for the key terms most related to your legal matter, without straying into the use of methods that can get you in trouble with major search engines.
  2. Blogospheric Strategies.

    The worldwide network of blogs has been dubbed the "blogosphere" and communicating with that network in many ways resembles intentionally introducing a virus into the human body. If done carefully and appropriate, a virus specially designed to carry your message will, de facto, reproduce itself in many more locations than you personally place it. If done wrong, that message, at best, won't multiple to your benefit and, at worst, the message can actually harm your case.
  3. Points-of-Presence.

    Every website or blog, every social media or networking page, and other locations where your firm, your bio, your message can be found is called a "point of presence" (POP) and must be leveraged fully in support of your legal and marketing strategy.
  4. Self-Publication.

    Traditional media is important to the extent you can garner their limited cooperation, but self-publication ensures 100% control of the message. What many don't know is just how many ways there are to self-publish online, in print and broadcast formats, both at online locations you own and elsewhere.

    If the Court of Public Opinion is correctly engaged, I believe that more class actions will be certified, more cases will be settled to your clients' benefit, and more trials will be won. Sounds like a good year to me.

About the Author

Jonathan Bernstein is the president of Bernstein Crisis Management, Inc., editor of the Crisis Manager newsletter, and author of Keeping the Wolves at Bay: A Media Training Manual. A former investigative reporter, he has more than 25 years of specialized crisis management experience and has supported litigation strategy for both plaintiff's bar and defense attorneys. Go to www.bernsteincrisismanagement.com for more information or write to [email protected]

Jonathan Berstein

Bernstein Crisis Management, Inc.