Jury trials and the media-- Attorney provides tips for winning a case and managing the media

By Roberta M. Gubbins

Legal News

"There is really no one way to deal with the media," said Andrew P. Abood, Lansing attorney and Cooley alumnus, who has represented high-profile clients in cases drawing national media coverage. "I see a lot of lawyers that say 'no comment.' I don't agree with that.

"There is always something positive to say. Our job is not to advance our interests, but to advance our client's interests. Sometimes you are the only person they have, and if you can say something positive, it means everything to them.

"If you can't advance your case to the media, how can you do it to a jury? If you can't articulate a position to the media, how can you sell it in a courtroom?" he asked the group of law students, professors, and local practioners gathered at Cooley Law School in Lansing last month to hear him speak.

The event was part of the Integrity in Our Communities speaker series offered by Cooley's Center for Ethics, Service and Professionalism, which features attorneys and judges sharing their experiences as legal professionals.

"I always say something to the media. I think it's important for you to understand that when you are representing your client, you have to put your clients' interests ahead of yours. You can not back down. And you must be positive.

"It's important to talk to the reporters. I always talk to them both off and on the record. You will advance your position every time your case is presented."

Michigan Rule of Professional Conduct 3.6 essentially says, "if you're going to make a comment to the press, you can't make a comment that will interfere or substantially affect a tribunal." Very few judges and very few lawyers know what it means. Generally speaking, if you are critical of the prosecutor, who can ask for a gag order, he will invoke rule 3.6.

Abood, giving examples from his practice, "represented a client who came home and as he was walking in people start shooting. He had guns in the house and there was a big shoot up. My client was charged with being one of the shooters. (The matter) was extensively covered by the media. The offer from the prosecutor, who was having witness problems, was that if my client took a polygraph and passed it, the charges would be dismissed. He took the polygraph and the case was dismissed."

"This is a case where I screwed up," he said. "My client passes the polygraph but he's still in jail. I'm going crazy wanting him out of jail. I issue a press release and I say my client passed the polygraph. Stuart Dunnings (Ingham County Prosecutor) went crazy--'read the rules of professional responsibility,' he said.

"I didn't know it, but I was wrong--if my client hadn't passed the test, I wouldn't have wanted that in the paper. The rule doesn't say anything about test results, but the comments say if there is a test result, you shouldn't publish it. Clearly what Dunnings said was right.

"Issuing a press release to the media is important, but you have to make sure you aren't saying something you shouldn't.

"I made some mistakes with Lisa Holland. First of all we wanted Lisa's father, Mr. Taylor, to testify and rebut Tim Holland's testimony. The prosecutor said that if Taylor took the stand, he would be charged with a crime. Taylor decided to use the fifth amendment to protect himself from having to testify. We had a hearing in the court. The next day, in the paper, the only thing they published was 'Lisa Holland's father takes the fifth.' Which was a killer."

Abood's second mistake in the Holland case involved the two jurors who were excused at the end of the case. "We didn't continue the gag order. They walked out of court, one didn't comment and the other did and said he would have found her guilty. That was splashed all over the paper. In the Ingham County courthouse, as you walk in there is the box for the paper and you wonder how it affected the jury."

Abood was consulted on the Drew Peterson case. In that case, there is a soft gag order, which means that statements given to the press have to be presented to the prosecutor and the Illinois State Bar committee that disciplines attorneys before publication.

"Drew Peterson," he said, "was a national press case. It sounds like a big deal but it is a lot of hassle. The thing about the national media is rarely will they do anything for you. You can advance your client's position and you should but if you can get something out of them, get it. If you're on the defense side and it's a national media case, they want you not because you are popular or well-liked. It is being covered because they want to see something bad happen to the defendant."

In the matter of Beverly Nettles-Nickerson, "There is nothing unique about the case media wise," Abood noted. "The paper is in writing and people read it; it is also on-line. What is a bigger part of it is the blogging. If you are representing someone and there is blogging out there, get someone to publish something that is positive for your client. I blogged our position. I knew we were right in that case and my client deserved to be defended.

"Press releases," he concluded, "are important. In the Nettles-Nickerson case, I got the Secretary of State favorable decision on Saturday. I sent it to the media. It was in the Sunday paper. My client was ecstatic that she was able to read something positive about herself."

Published: Thu, Feb 11, 2010