Is this “On the record?” A Media Interview Guide for Lawyers

Attorneys are often pressed into service to speak to reporters about their client’s case. Doing so can be a fruitful opportunity for the lawyer to support the legal strategy by setting the record straight on behalf of the client and to communicate with his or her intended audiences. However, it’s a dangerous proposition if the lawyer doesn’t understand the media ground rules.

Before engaging any reporters the lawyer spokesperson must understand the difference between “on the record” and “off the record” and everything in between. Here’s a rundown of the ground rules for speaking with reporters.

Is this on the record?

On the record – Everything said to a reporter is just that, “on the record.” The reporter is free to report everything said with direct attribution to the lawyer spokesperson. This is the most desired situation for the reporter because he or she can substantiate their reporting with direct quotes. Additionally, most editors and publishers are demanding on record quotes because they make a far more credible news stories. In this day of so called “fake news,” the media are fighting to protect their authority as a trusted source of news resulting in greater transparency.

Off the record – None of what is said can be used in anyway in any news story by the reporter. Reporters hate “off the record” because what is said to them is pretty much useless. There are a couple points that all interviewees must be aware of before attempting an “off the record” discussion with a reporter. First, and this is vitally important, “off the record” cannot be claimed retroactively. This is a classic mistake. The spokesperson, while engaged in an interview, provides a great deal of information and then says, “…but that is off the record.”  Nope. “Off the record” must be established and agreed to by the reporter in advance of what is said.

The other aspect of “off the record” is that while the reporter cannot print/broadcast the information, there is nothing stopping the reporter from getting a different source to put the same information “on the record.”  So, proceed with caution. We regularly advise clients, “If you don’t want it reported, don’t say it.” In other words, it’s usually best to avoid “off the record.”

On background – Everything said to a reporter can be reported, but there is no direct attribution to the spokesperson. Spokespeople often choose to go “on background” because they might not be authorized to speak on the record or for other reasons wants to shield the source of the comments. Quotes “on background” can easily be recognized in stories that include quotes from unnamed sources. For example, you might see something like this in a news story: “The president was very upset about coverage in the mainstream media,’ said a White House source.” This quote is attributed to an unnamed source but the reporter tells you he or she works in the White House, which would suggest the person has direct knowledge of what the president said. There are different levels of attribution. Reporters, and their editors, want to describe the source as specifically as possible. Attribution such as “a White House source” is pretty vague, while “…according to ‘a member of the president’s cabinet,” is much more specific.  Attribution is also something that must be clarified and agreed to by the reporter before the interview starts.

Deep background – Is the same as “on background” except for attribution cannot connect the source in anyway to the story.  Again, deep background must first be agreed to by the reporter. Whereas “on background” the reporter might attribute a quote to a “White House source.”  Under the rules of “deep background” the reporter can only say something like, “…according to a source familiar with the situation.” The farther away attribution gets from the name of the source the less compelling news stories received by the reading public, which makes editors loath to use sources on “deep background.”

These basic journalism rules are important to understanding how to best navigate an interview. For more information about how to manage communications during a crisis click the button below.

Litigation Communications Best Practices

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Working together – Lawyers and PR

A quick guide to cooperation between the General Counsel’s Office and the PR Department 

In times of litigation, many lawyers live in fear that the legal strategy will be sunk as a result of something that is said in the media.  This is what often leads to those corporate quotes that read, “we don’t comment on pending litigation.”  This is no better than “no comment” which is like saying “I’m guilty.”  Company lawyers and executives consider the “no comment” option the safe option.  Perhaps, but what message does it send to your company’s key stakeholders?  A company that doesn’t defend itself in the media could quickly lose support of customers, suppliers and partners.  The “no comment” strategy may also be an indication that there is no trust between the General Counsel’s office and the PR department to craft effective messages or strategy.  A smart PR team will build relationships with the GC’s office long before the company is embroiled in major litigation.  Likewise, chief executives should demand that the two departments are working together.  (If the C suite doesn’t trust the PR department then its time to get communications people they trust to work closely with the legal team.)

Use communications to help protect the brand in ugly lawsuits

A company can win big in court but lose big time in the court of public opinion, which ultimately could be as – or more – damaging to the company’s brand as losing in court in the first place. The PR team should work in lock step with the legal team from the beginning of major litigation.  The goal should not necessarily be to publicize the case but to protect the brand in the event the case gets serious media attention or public scrutiny.  The communications strategy should reflect confidence, positive messaging and the ability to rapidly respond to false allegations and media attacks.  To get company officials to understand the potential threat to the brand it is often a good idea to send around a Q&A document exploring the likely and unlikely questions the company could face.  The internal process of achieving agreement on the answers can be excruciating but maybe the most important exercise to get everyone on the same page.  The Q&A process gets executives and lawyers to think through the possible scenarios, in fact, often it’s the first time they even considered such questions (an effective Q&A is no more than 20 question but 10 will usually work fine).  Once a Q&A is agreed upon, core messages and contingency statements can be drafted.

 Read all filings, ask questions, and derive messaging from filings

A good communications director will read all filings to fully understand the twists and turns to the case.  The filings contain the heart of the case and each side’s argument and are fertile ground for messaging and Q&A.  PR pros should be sure to understand what is being said in the documents; if they don’t, then they need to have the lawyers explain it to them.  A seasoned litigation communications pro can actually influence the drafting of filings to maximize the message and media use.  At a minimum, one can help insert strong language making it a bit more media friendly.  It’s also important to remember that media have access to court records through PACER (or the opposition) and often read filings in full.  This underscores the need for the PR team to fully understand the filings as well as the potential to influence the media’s coverage of it.

 Recognize key audiences

It is not unusual for the legal team to have “tunnel vision” when it comes to audiences – understandably, they often only see the judge or jury.  It is the responsibility of the PR team to see the broader picture and how all the audiences are affected and make recommendations accordingly.  If, for example, the company is taking on heavy criticism about its core values or products related to litigation and its only comment is “we don’t comment on pending litigation” someone needs to assess the reaction by customers, partners and other key stakeholders.  A non-response position can erode trust, confidence and raise questions by those key constituencies; meanwhile, an upbeat and positive response can protect the brand without threatening the case.

Control the message as much as possible

Protecting the brand in the midst of litigation is a delicate balance. Message discipline is critical.  If your spokesperson shoots from the hip then keep him or her far away from the media.  In an interview situation, the more control you can gain the better.   Email is the preferred option for responding to media questions. The answers can be precisely crafted, vetted by legal, and presented in writing, which should eliminate the possibility of being mis-quoted.   A social media plan needs to be in place to monitor, assess what is being said and how it affects the company or litigation.   Likewise, an online response plan, approved by legal, should be implemented.  The plan should seek broad, forward-looking responses and avoid “tit for tat” spats.  Another important tool is the use of third party support for the company in the form of op-eds or blogs (which can be repurposed on additional online other platforms).  Op-eds and blogs provide the complete message control while demonstrating “independent” support for the company.

Be prepared to explain – or have counsel explain – legal nuances, precedent, and/or next steps

If “beat” media covers your company then it is likely they are not accustomed to reporting on the legal process.  This can be a threat or an opportunity.  The threat of course is the potential for inaccurate or confounded coverage of the case due to a lack of understanding.  However, media without legal experience are potentially malleable if the case can be explained in plain language.  A well-versed lawyer can be a great asset here explaining the legal nuance, procedure and next steps.  Even better, it doesn’t need to be on the record. Educating a media savvy lawyer as to the terms – and proper use of – “background” “deep background” and “guidance” can go a long way.  It’s also good to foster a relationship between the lawyer and key media as it makes for much better coverage.  However, the smart lawyer will understand the need to keep PR in the middle and direct calls and interview requests through PR for vetting even among known media.


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