Leading lawyers say litigators need common sense public relations

After many years of watching the development of modern litigation and the law, I have become convinced that a wise public relations strategy is essential to the work of lawyers. Long ago, as a young observer of the law, I was not absolutely convinced of this. So, I’ve reflected inwardly of late that my new view might flow from age and a touch of cynicism. To test my hypothesis, I tracked down a few of the nation’s best-known lawyers, and several respected legal minds in Oklahoma.

Robert Henry, former state attorney general and now chief judge for the 10th U.S. circuit court of appeals, said, “Thurgood Marshall and Roscoe Dungee (an Oklahoma civil rights leader) certainly thought public relations was important to successful litigation.”

Carter G. Phillips, managing partner with Sidley & Austin in the nation’s capital, commented, “The reality is that there is some press or media angle in virtually all of my argued cases and in a good many others, and it is important to make sure the client appreciates the spotlight that a Supreme Court case can create.”

Another deft comment came from Jamie Gorelick, “I have long believed that public communications needs to be a part of most, though not all, representations. I  represent public figures and major companies who have many constituencies. Communicating on the merits of their positions, consistent with the rules and constraints of litigation, is crucial to their ability to function in their jobs and for their institutions — and it has important ramifications for the litigation itself.” Gorelick, who worked in the Clinton administration and later on the 9/11 Commission, is a partner at Wilmer Hale in D.C..

To connect with my philosophical moorings, I called former Attorney General Edwin Meese III. If anything, he was even more direct than the litigators, saying, “I’ve often said that in strategic litigation the court of public opinion is almost as important as the court of law. It’s critical to align your litigation strategy and your public relations strategy to assure success.” Now at the Heritage Foundation, Meese is an icon to fellow conservatives.

Perhaps the most pragmatic comment on the issue came from William “Chip” Mellor, a libertarian-leaning thinker and public interest lawyer, who told me, “From our start in 1991, the Institute for Justice has incorporated a media strategy into our litigation program. If a case involves an issue of public interest or significance, it’s incumbent upon the lawyers in the case to explicitly decide what their media strategy will be. This is essential not only for their clients, but also because such cases provide uniquely effective platforms for educating the public about the principles at stake,” he said. Mellor had one caveat. Not every case must be aggressively placed in the media, but “a decision on media strategy should be made at the outset, not late in the case or by default when media inquiries come in.”

Richard Grellner, who works for Plains Indian tribes, put it this way, “On a scale of one to ten, public relations is a ten in most significant litigation. It’s very important to remember the court of public opinion in the process. It can and has been determinative in a high number of cases.”

Fellow Oklahoman, Bruce W. Day, a busy litigator in securities cases, reflected, “Public relations has probably been important for lawyers for decades. It is absolutely essential today because of the ubiquitous nature of the media outlets and their vast distribution. In the business of representing business, it’s not just whether you’re legally right or wrong; it’s that without a litigation communication strategy you run the risk of losing more in the court of public opinion than you gain, or lose, in court.”

Two law schools deans, an Oklahoman and a Californian, also responded to my inquiries. 

Andrew Coats, the University of Oklahoma law dean, told me,  “The duty to represent, and the right of everyone to good counsel, is paramount. In civil litigation, without question lawyers must and should think about the impact of what they do. A case should be tried in the courtroom, not in the media, but a lawyer should have a plan.” He commented further, “The media, and the need for good public relations, is simply a fact of life in the law, and we must deal with it in a professional manner.”

John C. Eastman, at the Chapman University School of Law in Orange, California, put it this way: “A well-developed public relations strategy is a critically important competent of public interest litigation, and most public interest lawyers know that. … Less obvious, but equally important, is for lawyers involved in general civil litigation to keep an eye on P.R. Strategy. Even with something as basic as the development of evidence, the utilization of facts that advance an appealing narrative lies at the heart of effective advocacy, and this is true even if the only ‘public’ reached by the P.R. strategy is a particular jury rather than the larger community.”

Theodore B. Olson, former Solicitor General of the U.S., captured many sentiments expressed by colleagues in the law: “Important litigation and other legal decisions are invariably made in a real-world environment, in which perceptions and public opinion are important intangible factors.” Now a combatant in the high-powered world of  D.C. law at the Gibson, Dunn & Crutcher firm, Olson said, “Decision-makers form their background impressions based on a wide variety of sources, and are seldom immune from forming impressions based on whether those sources perceive a cause as just, unfair, unreasonable, overreaching, and so forth.” Olson specifically pointed to newspaper stories and editorials, and to television “buzz,” as impacting every lawyer’s work.

Some might wish it were otherwise, and perhaps none of this is rocket science, but it has made me look a little differently at the law and its development. Among other things, I’m thinking that to assure competence among graduates, the nation’s law schools might need to incorporate public relations training into curricula.

About the Author:
Patrick B. McGuigan is the author of two books and the editor of seven, including “Law, Economics & Civil Justice: A Reform Agenda” (1994) and “Crime & Punishment in Modern America (1986). He is an editor at The City Sentinel (an Oklahoma City weekly) and a regular contributor to Tulsa Today.

Additional comments from interviews for this essay follow:


“It’s a very interesting question. Thurgood Marshall and Roscoe Dungee (civil rights leader) certainly thought public relations was important to successful litigation.”
Judge Robert H. Henry, chief judge, 10th U.S. Circuit Court of Appeals, former attorney general of Oklahoma


“The Supreme Court piece of litigation is probably somewhat unique. The truth is that in trying to persuade the Court that a case is important it helps if the press identifies the case as newsworthy. It generally is a subtle message and needs to be handled delicately, but a well placed editorial can be very important in that process. Once the Court takes a case, then the press will naturally show up. For most cases, the media in general are not interested. But there is a specialized media in most areas of law that will be very focused and it is important to coordinate with the client in dealing with that media. But in general there is little downside p.r. risk because the press coverage will be narrow. In some cases, it is reasonable to expect that National Public Radio, and the broader media will be interested and then it can be very important what message is delivered.
“My experience in this sphere has gone about 180 degrees. When I was at the U.S. Department of Justice and handling cases at the Court, the absolute rule was no communication with the press. I thought that would carry over to private practice, but the reality is that there is some press or media angle in virtually all of my argued cases and in a good many others and it is important to make sure the client appreciates the spotlight that a Supreme Court case can create.”
Carter G. Phillips, Managing Partner, Sidley & Austin, Washington, D.C.


“I have long believed that public communications needs to be a part of most, though not all, representations. I represent public figures and major companies who have many constituencies. Communicating on the merits of their positions, consistent with the rules and constraints of litigation, is crucial to their ability to function in their jobs and for their institutions — and it has important ramifications for the litigation itself.”
— Jamie Gorelock, partner, Wilmer Hale, Washington, D.C.


“Important litigation and other legal decisions are invariably made in a real-world environment, in which perceptions and public opinion are important intangible factors.  Decision-makers form their background impressions based on a wide variety of sources, and are seldom immune from forming impressions based on whether those sources (newspapers including op-ed, television, "buzz", etc.) perceive a cause as just, unfair, unreasonable, overreaching, etc. It is important for the advocate to evaluate all of the influences that might affect, even subliminally, the decision-maker to see his client’s cause in the most favorable light.

“Focusing on public relations also has the secondary effect of causing the advocate to think about what the message(s) is and should be, and how best to formulate the arguments so that they will be the most persuasive.”
— Theodore B. Olson, partner, Gibson, Dunn & Crutcher, Washington, D.C.


“I’ve often said that in strategic litigation the court of public opinion is almost as important as the court of law. It’s critical to align your litigation strategy and your public relations strategy to assure success.”
— Edwin Meese III, former attorney general of the United States, Ronald Reagan Distinguished Fellow, Chairman of the Center for Legal Studies The Heritage Foundation, Washington, D.C. 


“A well-developed public relations strategy is a critically important component of public interest litigation, and most public interest lawyers know that, even if they do not always perfectly implement it. Less obvious, but equally important, is for lawyers involved in general civil litigation to keep an eye on public relations strategy. Even with something as basic as the development of evidence, the utilization of facts that advance an appealing narrative lies at the heart of effective advocacy, and this is true even if the only ‘public’ reached by the PR strategy is a particular jury rather than the larger community.”
–Dr. John C. Eastman, dean and Donald P. Kennedy Chair in Law Chapman University School of Law, Orange, California


“There are a couple of aspects to your question. In criminal cases, we teach our students that it’s important that you NOT refuse to take a case just because you know it will be unpopular, that some times your client will be viewed unfavorably in the media and by the public. Everybody thinks about it, but the duty to represent, and the right of everyone to good counsel, is paramount. In civil litigation, without question lawyers must and should think about the impact of what they do. A case should be tried in the courtroom, not in the media, but a lawyer should have a plan on how to limit unfavorable coverage or  publicity as much as he or she can, and on the positive side to assure that at least part of both sides is heard. The media, and the need for good public relations, is simply a fact of life in the law, and we must deal with it in a professional manner.”
— Andrew Coats, Director of the Law Center, Dean of the College of Law
Professor of Law, Fenelon Boesche Chair of Law, University of Oklahoma


“From our start in 1991, the Institute for Justice has incorporated a media strategy into our litigation program. If a case involves an issue of public interest or significance, it’s incumbent upon the lawyers in the case to explicitly decide what their media strategy will be. This is essential not only for their clients, but also because such cases provide  uniquely effective platforms for educating the public about the principles at stake. That does not mean every case must be aggressively placed in the media. But rather that a decision on media strategy should be made at the outset, not late in the case or by default when media inquiries come in.”
–William “Chip” Mellor, President & General Counsel, Institute for Justice, Washington, D.C.

“On a scale of one to ten, public relations is a ten in most important litigation. It’s very important to remember the court of public opinion in the process. It can and has been determinative in a high number of cases.”
–Richard Grellner, lead attorney for Plains Indian tribal governments, including the Caddo, Apache and Cheyenne-Arapaho


“Public relations has probably been important for lawyers for decades. It is absolutely essential today because of the ubiquitous nature of the media outlets and their vast distribution. In the business of representing business, it’s not just whether you’re legally right or wrong; it’s that without a litigation communication strategy you run the risk of losing more in the court of public opinion than you gain, or lose, in court.”
— Bruce W. Day, Day, Edwards, Propester & Christensen, Oklahoma City