As seen in USA Today, October 2, 2003...
Public Opinion
Can
Trump Law
By James F. Haggerty
As the recording industry continues its pursuit of 12-year-old
schoolgirls, grandparents and other alleged downloaders of illegally copied
music, it should heed my "Al Franken rule": Just because you can assert
a legal claim doesn't mean you should.
Humorist Franken, you may recall, was sued by the Fox News Channel over his
new book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look
at the Right . Fox's lawyers argued that the phrase "fair and balanced"
was its trademarked property. The lawsuit was quietly withdrawn after an adverse
judicial ruling -- and a torrent of negative media coverage -- made the network
look downright silly.
Although the lawsuit is history, the damage in
the court of public opinion goes on. Franken's book debuted at the
top of non-fiction best-seller lists and remains there today. In addition to
its legal bills, conservative Fox can add the cost of burnishing the reputation
of a leading liberal commentator.
Now the recording industry's trade association is playing legal hardball, filing
261 lawsuits against individuals who allegedly shared copyrighted music online
(and already settling some). I'm not debating the right of artists and their
recording companies to protect copyrighted material, but such a ham-fisted approach
leaves me wondering: How could they be so stupid?
Here's how: They relied on the long-established legal mantra, "protect
our intellectual property at any cost," with little thought to that tactic's
public effects. In the short term, it no doubt will cut Internet theft of copyrighted
material. But suing their own customers? A customer base largely made up of
cynical teens and twenty-somethings already skeptical of hyper-aggressive corporate
greed?
Baring it for all to see
It's a lesson for all lawyers -- and their clients: In this media
age, legal maneuvers that once worked so well behind courtroom doors can have
embarrassing long-term consequences now that they're under the glare of the
public spotlight.
NBA star Kobe Bryant's attorneys should mull that lesson as they ponder dragging
the reputation of the alleged victim through the mud in the sexual assault case.
That's the kind of defense that was part of every criminal lawyer's arsenal
back when such tactics had few repercussions outside a courtroom.
Nor is it just lawyers embroiled in sensational cases who need to consider the
broader public implications of their legal maneuvers. Consider: My firm once
advised an industrial firm in a complex lawsuit. The case had embarrassing allegations
of financial impropriety for my client, and the suits and countersuits were
flying like cafeteria trays in Animal House . But my client luckily
settled with one party, and both sides entered into confidentiality agreements
as part of the deal.
Much to their chagrin . . .
Less than a week later, a small, foreign-language newspaper ran
a long article on the case. The information obviously came from the other side.
My client was livid. The firm's lawyers wanted to go to court to enforce the
gag order, then hold a news conference to declare their opponent untrustworthy.
No way, we said -- not even the court action. It would move the story, with
its embarrassing details, from a minor publication's back pages to the front
pages of major newspapers. The law favored my client, but the damage to its
reputation would offset any value gained by aggressively enforcing the confidentiality
agreement. Instead, we drafted a strong letter to the other side. They never
broke the agreement again.
Some of the country's best lawyers have a tin ear about the public impact of
their legal strategies, probably because most were trained in the 1970s or early
1980s -- before 24-hour cable news, the Internet and the explosion of business
and legal news coverage. In today's media-saturated environment, their education
and experience are as outdated as rotary phones.
But the smart ones learn fast. Lawyers and clients are realizing that if a legal team isn't considering public opinion as well as the law, it is doing a grave disservice to itself, its clients and the case.
James F. Haggerty, a Manhattan-based attorney and communications consultant, is the author of In The Court of Public Opinion.