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Spinning The Law: Trying Cases in the Court of Public Opinion Excerpt from Spinning The Law: Trying Cases in the Court of Public Opinion

by Kendall Coffey

A Media Primer for Spinners

For all the fascination with trials in the court of public opinion, no one really knows how much media campaigns actually affect the verdict. Ultimately, what matters is winning the courtroom battle for life and liberty rather than the contest over the next news cycle. No matter how important publicity may be to clients, the best press releases are written about winning, just as woefully bad news follows defeat. The legendary Johnnie Cochran had the memorable sound bite,"If it doesn't fit, you must acquit," but without the jury's own words of "not guilty," his phrase would have been pointless rather than timeless.

That said, even if the benefits of spin are difficult to quantify, there are many reasons to believe they are not illusory. Studies conducted of mock jurors -- simulated jurors in simulated trials -- suggest that negative news contributes to negative verdicts. And even though real jurors routinely deny that they are media influenced, it is undeniable that cases are decided by jurors who are media exposed. It is neither necessary nor realistic, however, to disqualify jurors simply because they were previously subjected to onslaughts of publicity about a case -- the law does not require an empty mind, only one that is open. Although mediadrenched jurors must assure the court that they will be fair and will consider only the evidence and law presented inside the courtroom, those assurances are more comforting when the groundwork for fairness has been laid by balanced news coverage.

Once selected, jurors are instructed repeatedly to avoid media coverage of the case they are deciding. The law assumes that they honor their oath, but common sense says some may not. And even jurors who read nothing about a case live among others who may be reading everything. When a community is buzzing about a trial, no one wants to be remembered as one of the jurors fooled by clever defense lawyers into acquitting a notoriously guilty defendant.

The ears of judges often have chronic buzzing, particularly because they are not prohibited from following the news coverage of their cases. The law presumes that judges will ignore the media monsoons drenching the courthouse and decide every legal issue as if nary a drop had fallen. If we assume, though, that judges are real people who live in the real world -- sometimes a world of judicial elections -- it follows that they are acutely aware of community feelings about mediaintensive cases. And judges live in more than one community. Most care deeply about maintaining respect from their peers in the courthouse and from the attorneys who practice in the same locale. Because the legal community reads newspapers much more than most, the articles that judges and lawyers will be reading should be balanced as much as possible if the playing field is to be level.

Legal icon Dershowitz recently recalled some advice he received from a local lawyer when he was handling the appeal for convicted wifekiller Claus von Bülow: "The only way you can win this appeal is if these three judges (all male back then) can explain to their wives why they let off a wifekiller." Absorbing the daunting reality, Dershowitz focused not only on the legal brief but also on facts about the medical evidence that would raise questions in the minds of reasonable readers.

Good press is also a recruitment poster for lawyers, experts, and even fact witnesses. Winnability magnetizes cases. Lawyers and experts may be mercenaries, but even hired guns prefer to be retained by winners. For the top professionals who can pick and choose their cases, many prefer a cause that is acclaimed to one that is being defamed. Even fact witnesses, the main determinant of most cases, can be more effective if they believe their testimony will be featured in a success story. Just as many prefer to join the team with all the cheerleaders, horrible publicity can impair recruitment efforts. (Note: large, upfront payments to attorneys and experts can make even beastly cases seem beautiful.)

Occasionally, the fear of negative publicity can inspire the parties to negotiate a solution before the judicial process reaches its own conclusion. Several years ago I represented a woman who shipped herself to the United States by plane, arriving inside a DHL box. This elegant but -- no surprise here -- petite client might have had an uphill battle seeking asylum to remain here. In theory, a socalled stowaway is among the least favored of all newcomers for purposes of immigration law. Her case began to attract attention, however, because while gift DHL packages are common, a gift immigrant understandably created a news stir. As press interest intensified over her battle for asylum, we held our fire and postponed the everpresent temptation to trashtalk the immigration service for trying to deport a young woman who was obviously courageous, even if too ingenious for safety's sake. The government's press anxieties actually helped us make a deal providing that if the authorities agreed not to send her away, we would keep the television cameras at bay. Along with downsizing our press strategies, we assured the government that our client would travel with passengers rather than inside packages in the future.

The above is an excerpt from the book Spinning the Law: Trying Cases in the Court of Public Opinion by Kendall Coffey. The above excerpt is a digitally scanned reproduction of text from print. Although this excerpt has been proofread, occasional errors may appear due to the scanning process. Please refer to the finished book for accuracy.

Copyright © 2011 Kendall Coffey, author of Spinning the Law: Trying Cases in the Court of Public Opinion