As seen in Financial Times, June 16th, 2003...
Why Justice Needs PR
By Patti Waldmeir
So you think you have read quite enough
about Martha Stewart? The opposite may be the case. The cause of justice might
have been better served if we, the media, had played a bigger part in this show
trial right from the beginning.
For no case better demonstrates this unfortunate modern truth: the
court of public opinion often matters more than the courtroom. And that
gives the media untold influence on how justice is done.
Do not misunderstand: I am as uncomfortable as the next citizen with
the notion of the press as an arbiter of justice. But, flawed as we are, the
US justice system cannot function properly without us. America's adversarial
legal system relies on the notion that justice is a by-product of aggressive
combat. Lawyers for both sides are required to use every lawful trick and gimmick
to defend their client, including public relations. That is the only way, paradoxically,
to guarantee fairness.
Only days ago a federal district judge in New York — ruling in
a case that eerily echoes that of Martha Stewart — underlined that truth:
that justice is all about good PR. His ruling disguised the identity of the
protaganists but its message was clear: media consultants are crucial to the
defence of the modern client — so central that their conversations with
defence lawyers should be protected by attorney/client privilege.
"Traditionally the proper role of lawyers vis-a-vis public opinion
has been viewed rather narrowly," largely because of the risk of prejudicing
future jurors, he wrote. "More recently, however, there has been a strong
tendency to view the lawyer's role more broadly."
In the case in question, the client's lawyers hired a PR firm because
they feared that "unbalanced and often inaccurate press reports created
a clear risk that prosecutors and regulators would feel public pressure to bring
some kind of charge." The judge highlights the inmportance of public opinion
in determining who is indicted and for what; prosecutors commonly try to "colour
public opinion", he said, "in the most extreme cases to the detriment
of [the defendant's] ability to obtain a fair trial." The rest of us should
have the tools we need to fight back against the potential abuse of government
power, he argued — if necessary in the media.
Somehow, Martha Stewart and her lawyers failed to grasp that simple legal
truth: that the best media win. To pretend otherwise ought to be punishable
as a form of legal malpractice, argues James Haggerty, author of the perfect
handbook for this age of show trials, In
The Court Of Public Opinion: Winning Your Case With Public Relations.* The
book argues a case dear to Mr Haggerty's wallet (he is both a lawyer and a public
relations consultant) but that does not make it wrong. According to him, in
high-profile cases "public relations is not what you do after you create
a legal strategy. Public relations is the legal strategy." All cases are
public, he argues — and since barely 10 per cent ever make it to a courtroom,
most are fought from beginning to end in the court of public opinion.
Mr. Haggerty can claim support for his views in high places: not just
from the district judge mentioned above (Lewis Kaplan, one of the cleverest
in the business) but also from Supreme Court Justice Anthony Kennedy, who wrote
in a 1991 case that "an attorney's duties do not begin inside the courtroom
door".
Martha Stewart's lawyers would have done better to heed that advice:
they should have staged their own show trial, long before the US attorney strode
on to the stage. The government made no secret of its intention to try her in
the press — to gain maximum deterrent value from her public shaming. She
should have replied in kind, with a PR campaign to brand an image of innocence.
Instead, Saint Martha the Martyr waited until after she was indicted
to mount a proper defence. It took her at least 24 hours to convey the central
point that prosecutors had not charged her with insider trading but only with
covering-up activities that they were unable to prosecute as illegal. By then
the news stories were written and the footage aired: the damage was done.
In the 12 days since her indictment, the Martha media machine has at
last engaged gears, delivering her an informal public acquittal. Those who hated
her before still do; but nearly everyone else seems to think her prosecution
reflects not her guilt but her personality: rich, female, powerful — and
totally insufferable.
Ms. Stewart ought to have sharpened her PR instruments months ago, while
there was still time to separate the prosecutor from his indictment, like the
meat from its bone on a shoulder of lamb. Instead, she maintained a peevish
silence, punctuated only by one incident with a cleaver, when she spat out a
rebuff — "I just want to focus on my salad" — while savagely
slicing away at a cabbage on a morning cooking show. She should have used the
media more wisely — and not just for her own sake. Justice is not served
when prosecutors create an atmosphere of guilt before trial simply because their
target refuses to defend herself.
Ms. Stewart may yet prevail in a court of law. But that is not the only court
that matters — least of all to the cause of justice.
* In
The Court of Public Opinion: Winning Your Case With Public Relations, by
James F. Haggerty, John Wiley & Sons, 2003