“No Comment”

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“No comment” is no response for a lawyer or client.

A panel, of legal and media veterans, warned of the need for lawyers to balance their clients’ legal interests with the need to respond to media inquiries.

For example, if federal prosecutors announce charges, the panel encouraged the lawyer for the accused to find some middle ground between refusing to say anything and publicly attacking the veracity of prosecutors.

The same holds true for a lawyer representing a business, which has just experienced a major accident. It’s important to recognize that there may be some liability or exposure for the company. But it’s also essential to understand that closing a client in a cocoon will do them no favors in the public eye.

The discussion took place during the Eastern District of Wisconsin Bar Association’s December presentation on “How to Handle Media Inquiries Ethically and Effectively.” The presenters included: Nathan A. Fishbach, who handles civil and white collar litigation at Whyte Hirschboeck Dudek; Eastern District of Wisconsin U.S. Attorney Steven M. Biskupic; Paul E. Kritzer, vice president and general counsel for Journal Communications Inc.; and public relations specialist Evan N. Zeppos of Zeppos & Associates.

In the eyes of reporters, Zeppos warned, saying no comment is an indication that the client is hiding something. Kritzer agreed that reporters will dig in to find the information.

Kritzer and Fishbach both noted that in the case of a federal investigation, by the time charges are announced, clients have had sufficient advanced notice to prepare a statement. Allowing only the prosecutor’s information with no defense response leads to a news story that is unbalanced against a client.

“It’s not good for your client to have a story with only one side out there,” Kritzer said.

Given that most cases no longer go to trial and that litigation can extend for many months, it’s important to look out for a business client’s interests in the meantime. In addition to thinking about the case in the legal system, Zeppos said, it’s important to be concerned about how clients will fare in the “court of public opinion.”

“To ignore a [reporter’s] call or to issue some sort of ‘no comment’ is a prescription for disaster,” Zeppos said. “Sometimes you win in court 14 months later, but you lose the previous 13 months and it really doesn’t matter any more.”

The same is true when a crisis situation arises, which has the potential for future litigation. Fishbach explained that how a company responds to a crisis can take the edge off a situation and go a long way toward reducing a company’s ultimate exposure.

“The callous way that a company acts is ultimately what causes them the most harm in public opinion and also with the victims,” Fishbach said.

Bad things happen all the time, Zeppos said, but when a company fails to respond to media inquiries, people immediately begin wondering what the company is hiding.

“You are often judged as a corporation, not on the fact that a bad thing happened, but on how you respond to it,” Zeppos said.

Looking back at situations involving federal prosecutors, Fishbach, a former federal prosecutor, warned against defense attorneys going on the offensive. Making comments about how the client is working with investigators or conducting its own internal investigation can be a good thing. Questioning the motives or integrity of prosecutors is something attorneys should avoid.

While that tactic might be used in cities like Chicago or New York, it will only make your case here worse, he said. Judges in Wisconsin will not respond well to those efforts.

“The judges here generally do not like showboats in the media,” Fishbach said.

When it comes to divulging exculpatory evidence to the media, he encouraged talking with prosecutors ahead of time, to make sure that such a move will not “gum up” ongoing negotiations.

Although much of the discussion revolved around avoiding the no-comment response, Biskupic noted that there are some points when prosecutors are not allowed to say anything. That is particularly true before charges are filed. Prior to charging, he said, both Supreme Court and Department of Justice rules forbid making comment with a few exceptions. Those exceptions include the need to make a statement for the sake of public safety.

However, once charges are filed, prosecutors are allowed to comment on
cases to clarify things and elaborate on the nature of those charges.

“In general, individual prosecutors are allowed to describe the nature of the charge,” Biskupic said. “We are public officials … and we have great discretion, great power. As such, we have a responsibility to make ourselves available for public criticism.”

Fishbach also stressed the need to plan appropriate response tactics before something happens. By using forethought and preparing ahead of time, lawyers and their clients can establish the appropriate response mechanisms before they pick up the phone and find a reporter on the other end.