By: Douglas R. Richmond*
Abstract
Conventional wisdom has long held that high-profile litigation is often decided both in court and in the court of public opinion and that harnessing the power of the press is an essential aspect of a comprehensive legal strategy. How the media reports on litigation is generally thought to affect the resolution of disputes. At the same time, lawyers who press their clients’ causes in the media also expose themselves to serious professional risk. Lawyers’ litigation privilege, which generally provides them with absolute immunity against liability for defamatory statements made in the course of judicial proceedings in which they serve as counsel so long as the statements relate to the proceedings, rarely applies when they speak to the press or supply information to the media. Attorney immunity is equally unlikely to protect lawyers who litigate their cases in the court of public opinion because communicating with journalists generally does not involve or require a lawyer’s professional authority, skill, or training. For these reasons, lawyers are wise to litigate their cases in court rather than in the media.
* Senior Vice President, Lockton Companies, LLC. J.D., University of Kansas. Opinions expressed here are solely those of the author.