In the first week of a high-stakes trial in which the plaintiffs planned to ask a major health corporation for billions of dollars in damages for medical injuries, their lawyers noticed something they had not anticipated: The defendant had launched a website putting its spin on the case.
The website blamed the patients’ injuries on their doctor, accused the plaintiffs’ attorneys of pursuing a “lawsuit lottery” and opined that the “current trial is driven only by attorney greed.”
After quickly determining that a similar website had been allowed by the trial judge on First Amendment grounds in a different case, the plaintiffs’ lawyers decided not to challenge the site.
“If we can’t take down theirs, we’ve got to put up our own,” thought Will Kemp, one of the attorneys.
The plaintiffs’ team scrambled to create its own website to counter the defendant’s version of what the trial was about.
“We were reacting. We had to get it up right away,” said Kemp of Kemp, Jones & Coulthard in Las Vegas.
Adding to the urgency was that their case hinged on a rarely-used legal theory: that an HMO is liable for keeping a doctor with poor performance in its network.
“We didn’t want to get the McDonald’s coffee case effect,” Kemp said, “and be accused of a frivolous case.”
Kemp said that the plaintiffs’ website, www.endoscopytrialfacts.com, included only trial testimony, transcripts and other public information about the trial.
The defendant in the case, Health Plan of Nevada, said its website, www.endoscopyfacts.com, “was meant to provide the facts related to the case through our perspective” and its content was not limited to evidence at trial.
“In the courtroom, you’re restricted to what you can say and there was a lot of evidence that the jury didn’t get to hear,” said Cheryl Randolph, a spokesperson for Health Plan of Nevada. “We wanted to make sure there was a full understanding of what the case was.”
In what may become a trend in jury trials, the lawyers simultaneously argued the evidence in court while making their case to the court of public opinion on the Internet, Facebook and Twitter.
“It’s one thing to talk about a case after a verdict; it’s another to take control of the message during a trial,” said Ken Broda-Bahm, senior litigation consultant with Persuasion Strategies in Denver. “It’s a recognition that there’s more than one jury: the one actually sitting there and the public.”
Tool comes at a price
Creating a trial website can serve several purposes: a single place to send the news media and the public, a sword in the spin wars, a shield against negative information from your opponent and a record of the trial itself.
“It’s a great tool to keep people informed,” especially in high-profile or complex litigation with drawn-out legal procedures, said Gina Furia Rubel, author of “Everyday Public Relations for Lawyers.”
However, she cautioned against airing too much in public.
“What’s online is forever,” she said. “Anything you put up can and will be held against you.”
Besides giving away trial strategies, a statement or argument made online in one case could be damaging if the same attorney makes a contrary argument in another case, Rubel said.
Another drawback is cost.
According to Kemp, he paid his Web company, Insider Viewpoint, between $15,000 and $20,000 to create and manage the website, which included buying and creating 42 websites with different domain names to maximize SEO, plus Google and Facebook ads. He noted this was a “cut-rate” deal for a first-time experiment.
Although Randolph, the spokesperson for defendant Health Plan of Nevada, said the company created its website in-house, the director of a Las Vegas Web company, The Web Squad, confirmed that his company built the website on behalf of a marketing agency for Health Plan of Nevada.
Correy Thomas, director of the The Web Squad, declined to say how much the health plan paid for the site to be created.
Building a website is one thing, but drawing traffic also costs money.
According to Kemp, he could not afford to outbid the defendants for Google Adwords. For some words and phrases, the defendant paid $25 to $30, he said.
Richard Reed of Insider Viewpoint, the company that built the plaintiffs’ website, estimated that the defendants spent “many tens of thousands of dollars” in purchasing Google Adwords.
Instead of outbidding the defendants, Kemp said he paid 10 cents for the same words and phrases and settled for coming up second in the Google ad box.
Whether the websites had any influence on the court of public opinion is less clear than the lawyers’ success in court; the jury found in favor of the plaintiffs for $524 million.
Lawyers who put up a trial website should be careful about the content and character of the site.
“There are times when zealous lawyers can get an idea that is too clever,” said Eric Cooperstein, an attorney in Minneapolis who specializes in ethics. “They should be careful that their exuberance doesn’t lead them to violate ethics rules.”
In particular, such websites could violate ethics rules governing trial publicity and legal advertising.
“It doesn’t bother me that people are capturing appropriate information if this is a response to the defendants’ website, which in this case certainly goes after [the plaintiffs’] law firm. Then this is fighting fire with fire,” said James Bolan, a partner at Brecher Wyner Simons Fox & Bolan in Boston, who represents attorneys in ethics matters.
According to Kemp, he applied the same rules to the website as he would to a news conference.
“We talk about the facts admitted in trial. We would only put up testimony after it was in, and the stuff that didn’t get in, we wouldn’t put up,” he said.
A website that only communicated information about a trial that is already in the public record would not be likely to run afoul of advertising rules, said Bolan.
“As long as it’s not false or misleading and doesn’t contain material misrepresentations of fact or law or omit facts, it would be very hard to prosecute someone for this website under the advertising rules,” said Bolan.
However, he noted that lawyers could get into trouble if they are directing others, including their clients, to put up websites that transgress the rules.
While Kemp says he is not likely to use a trial website in every case, he has already discussed using one for a big pharmaceutical case scheduled for trial in March of next year, but only as a defensive move if the other side puts up a website first.
“I’m not going to do it proactively,” he said, “but I want to have it in the bag in case someone brings it on us.”