How to Cool Off a Hot Mess

Odds are, after a career of trying cases to verdict, most seasoned litigators eventually will experience a rogue jury that does the unexpected. The outlier verdict that defies pre-trial estimates is part of the calculated risk in trying cases, and sometimes those verdicts make the newspaper or television news. Of course, it also is just as likely that, after enough trials, there will be an amazing defense verdict that is not expected. Those are the good days—but they never get any press. Reporters want a big number in the lede. "Jury Awards $0.00!!!" is not a printable headline.

In addition to spending a career defending lawsuits in trial, I've been fortunate to counsel clients, study, write, and speak on public relations practices of lawyers. If there is one universal truth that I've found, it is this: even as well-trained, experienced courtroom advocates, litigators consistently underserve their clients in the post-verdict interview. However, this doesn't have to be the case.

As with the trial itself, preparation is of the utmost importance. Any good spokesperson, whether it is the lawyer who tried the case or the corporate representative, needs to know what they are going to say before they say it. Most questions from reporters are predictable and can be prepared for. However, the interviewee needs to be prepared for the unexpected, as well.

One way to be prepared is to have a written post-verdict plan in place. It doesn't even have to be prepared for each case. Because your lawyer tried the case, he knows the basic talking points that apply. Applying those facts to a prepared template is a good starting point.

What topics need to be addressed in the interview? First, address the substance of the liability. If it is a product, reassure its safety despite the verdict. If it is a trucking accident, continue to defend the responsibility of the company. Second, emphasize that a trial is part of a process. There were rulings before and during the trial, and there will be rulings after the trial both by the judge and appellate courts. Third, show the stability of the corporate defendant. Bad verdicts can affect the confidence of investors. Let everyone know that day-to-day operations have not and will not be affected.

Why do cases make the press? Unfortunately, whether a verdict makes headlines is seldom solely a product of its importance to media consumers. News of a verdict is competing with every other potential news story that will be on traditional media like television or in the papers. These outlets have limited space to fill, but if it is a slow news day, the verdict is more likely to be featured in the news lineup. During slow times, some papers have reporters assigned to the courthouse during jury weeks just to see what cases might be interesting or could produce big verdicts. Also, plaintiffs have been known to tip off reporters when a jury is about to render a verdict. In addition to being attractive to the plaintiffs, plaintiffs’ lawyers see big numbers as good advertising for future clients (even if the verdict is likely to be overturned on appeal).

With that said, be sure to know who the reporters are because they often will be in the courtroom. In fact, you or someone on your team may do well to befriend them during the trial as it may come in handy later. Additionally, the courthouse steps are the place where the television interview often will take place. Get there first. Beat your opponent to the punch by telling your story first.

Typical questions you can expect after a bad verdict include: What was your reaction to the verdict? What was your client’s reaction? How does your client plan to react to the verdict? You also may encounter questions about particular witnesses or exhibits. You need to answer those questions especially. Never try to dodge a question; answer it. But also bring your answer back to your main talking points: reiterate confidence in client’s product or service; explain that this is part of the process, which includes appeals; and, most importantly, explain that operations are not affected.

After the initial post-verdict interview, the mainstream media typically moves on to the next big story. Even the appellate process rarely gets any attention (regardless of how wrong the jury was). However, because of the growth of non-traditional and targeted social media, the discussion will continue. A decision must be made about whether to engage in this dialogue. In any event, this is usually best left to corporate media communications experts and not litigators. However, at a minimum, someone from the litigation team should be a part of the strategy.

Finally, you may not be able to minimize the impact of the aberrant verdict, but you certainly can make it worse. Never reduce your remarks to "No comment at this time." There will not be another time. While the defense trial attorney’s job is focused on the jury, there is a court of public opinion. It will never hear all the evidence unless it is told, and there is usually only one chance to do that. Be ready.