19 February 2007
Questions in Parliament about a reality television show? Extensive coverage in the broadsheets of the allegations and counter allegations in the McCartney-Mills divorce proceedings? It is an inescapable fact of life that the news media is an ever-present factor in all our lives.
The media can be extremely useful in promoting your client's cause, but if you use it wrongly or incompetently you can damage both the client's case and your career. As with any new area, lawyers considering using the media need to be trained in the relevant skills. A lawyer would never consider standing up in court on behalf of a client without any advocacy training. Media interviews and press comment should be regarded in the same way.
Courses on presentation skills for print, radio and television abound and cater for the growing need for businesspeople to deal with the media. However, lawyers should consider specialist training focusing on the particular circumstances in which they practise. Lawyers need to consider not only presentation skills and media management tactics, but also professional obligations.
For example, The Guide to the Professional Conduct of Solicitors says: "A solicitor who, on the client's instructions, gives a statement to the press must not become in contempt of court by publishing any statement which is calculated to interfere with the fair trial of a case which has not been concluded."
Meanwhile, the new code of conduct, expected to come into force later this year, is couched in slightly different terms, but imposes no lesser an obligation.
At first reading this seems obvious. However, consider the practicalities. On the way into court you are asked, on live television, whether you are confident that your client will succeed. Is not the safest course to refuse to comment at all? By doing so you will certainly not be in breach of your professional obligations, but will that not make you look as if the client is not at all confident or has something to hide?If you do comment, will that antagonise the other side and scupper any chance of a last-minute settlement? Worse still, could your comment be interpreted as 'calculated to interfere'? You have to make an instant decision, in front of the camera, on what to say. There is much more to dealing with the media than presentation skills.
Where there is any possibility of a case attracting public attention, including attention from the legal press, establishing a media strategy from the outset is crucial. Lasting damage can be done to the relationship between your client and the other party to the dispute and any possibility of a mutually beneficial settlement irreparably damaged by unconsidered press comment. Positions taken early in the dispute often change where negotiation is confined to private exchanges between the parties. Once in the public arena it is much more difficult to amend your position as the dispute moves on without losing face and thus undermining the client's credibility. Concessions that in private negotiation are simply a matter of economic prudence, and are understood by both sides as such, can be presented by the media as an admission that the case is flawed.
Remember, too, that any press comment will also be read or seen by other parties in business relationships with the client. What message is press comment on the present situation sending to them? The issue of media management is always wider than the present dispute.
In order to ensure that the strategy is effective, it is essential that the message is communicated clearly. This can be achieved only be ensuring that everyone who will comment understands exactly what the message is and what can and cannot be said.
Individuals who will deal with the press must be identified and everyone working on the case, including professional advisers and those within the client's organisation, must be instructed that only those identified and designated people may speak to the press. They must all know where to direct any press enquiries. This ensures that the press receives a consistent message that is focused on the points that the strategy has identified as needing to be communicated.
It also allows the designated individuals to develop relationships with journalists to ensure that the message is heard. Journalists need to meet immovable deadlines and in order to do so they need to be able to reach the person with the authority to comment quickly and easily. If you are authorised to speak to the press, make sure you return their calls promptly. If you do not you will lose the opportunity to get the client's message across, and not just on that occasion, but in the future. If you are difficult to reach then the journalist will simply give up trying.
It goes without saying that you must have the client's authority to make any comment. To do otherwise would be to breach confidentiality. The press strategy must be agreed with the client and updated regularly. Inevitably, the client has an emotional involvement with the situation. In negotiations you are the buffer between the client and the other party and can ensure that emotion does not get in the way of a sensible position. It may be wise to agree that the client does not give any direct comment.
Assuming that the strategy is agreed and that you are authorised to give press comment, put aside time for preparation. Put yourself in the shoes of the journalist who has to make the story as interesting as possible to their audience.
What would you want to know? What questions would you ask? How can you answer these questions in a way that gets across the strategic message clearly? How will you deal with the difficult questions on which you would rather not comment - there are always some.
The most effective way to equip yourself to deal with the media is practical training. Look for training that is tailored to the context of legal practice and addresses the strategic and ethical issues, and not simply presentation skills.
The training must be practical and should put you in the position of having to comment to a range of media on a client matter. In this way you can experiment with different approaches, without prejudicing a real client, to establish which are most effective and comfortable for you.
You should receive detailed feedback on the effectiveness of your strategy. You should have to deal with issues of professional conduct in a practical way. Individual feedback is essential. You should be able to watch your television interview, listen to yourself on radio and see what a print journalist chose to write after your interview. You can then see for yourself how effective your interview or comment was in advancing your media strategy and, with skilled feedback, understand why.
Ad hoc learning, picking up skills and knowledge in an unstructured way, is never the most efficient way to learn. Learning from mistakes made in the public arena is certainly not comfortable and, in the context of dealing with the media, can be positively dangerous, both to your client's case and to your career.
•Fiona Cunningham is head of the professional division at Nottingham Law School