What do you do when your client wants to fire you? Most lawyers withdraw gracefully, I think. If you are superstar trial lawyer Bill Lerach however, you create a PR problem for yourself by filing papers with the judge in your client's case fighting your ouster. Read the story at Legal Pad. (Of course, his bigger problem is being under criminal investigation.)

It's often been said that plaintiffs' lawyers like Lerach put their clients second after their own interests. Now there's proof.

A sign that we are winning, that's what. As The Tortellini notes somewhat grumpily, the Association of Trial Lawyers of America has changed its name to the American Association for Justice. To her, this ...

...sounds like a tort reform group. It's one of those fuzzy, inside-the-Beltway, Astroturf-lobbying-group sort of name choices that get so tedious after a while.

Besides, D.C. is already home to the Institute for Justice, which is not to be confused with the Alliance for Justice or the American Center for Law and Justice. (Can you guess which is the liberal one? I thought not.) Elsewhere, you have groups like the Texas Civil Justice League, the Illinois Civil Justice League. Then there's Justice at Stake, the Committee for Justice for All, and the Center for Justice and Democracy. "Justice" has simply lost its punch.

The Tortellini goes on to recount the organization's tortured PR history of recasting itself from the National Association of Claimants' Compensation Attorneys (NACCA), to ATLA and now AAJ.

BTW, I don't think "justice has lost it's punch." I just belongs to those who know what it is.

Today's frontpage of The Wall Street Journal (subscription required) tells the interesting story of Edelman PR's efforts on behalf of Wal-Mart. Couple that with the Journal's Q&A with Wal-Mart's PR guru Leslie Dach a month ago and you get a picture of a company that has turned itself over to image consultants for an extreme makeover who don't understand its success.

Today's story doesn't reveal very much and we are sure there is a lot more here than the reporter was able to discover. What the article does demonstrate is that:

• there is little creative thinking at big pr agencies as exemplified by Edelman's creation of a front organization called Working Families for Wal-Mart (we thought working families loved Wal-Mart already);
• sometimes attempts to buy credibility backfire when you do it by renting reputations as in the case of engaging Andrew Young as the face of the group; and
• all that high-priced pr saavy doesn't prevent bush league mistakes, like using the relative of an Edelman executive to write a supposedly independent blog.

That's not to say that there haven't been some good moves, too. The strategy to make Wal-Mart stores an integral part of the Hurricane Katrina recovery effort was not only humanitarian, but also emphasized the company's real strengths and earned it legitimate praise. Ditto its program to offer generic drugs at $4 per prescription. The first idea apparently came from Edelman, the second predated its arrival.

If Wal-Mart is looking to enhance its image it should focus on its truly considerable market power and expertise. With all due respect to Edelman's Michael Deaver, who protested in the Journal his agency's strategy for Wal-Mart "is not a public relations campaign," it is.

The always sensible Steve Chapman notes in the Chicago Tribune that "coincidence is not a cause."

The whole episode was a case study in the folly of policymaking by anecdote. Certainly there were women who got ill or even died after getting silicone implants. But a coincidence is not a cause. As one doctor explained, "When you have 2.5 million women out there, some of them are going to get arthritis. Some of them are going to get cancer. And some of them are going to get poison oak."

This headline in the Boston Globe got our attention: "Few chances for lawyers to develop trial skills."

In legal circles, the phenomenon is so widespread that it actually has a name: the vanishing trial.

Over recent decades, the number of courtroom trials has dropped dramatically in both federal and state courts, according to numerous national studies. Because of the high cost of going to trial, fear of unpredictable jury verdicts, and other factors, many cases instead are being resolved through settlements, mediation, and arbitration, which litigants often prefer to the emotional ordeal of going to court.

But the disappearing trial has created a troubling ripple effect for the legal profession: rapidly dwindling opportunities for lawyers to hone their litigation skills, resulting in a generation of young attorneys who have rarely -- if ever -- stepped foot in a courtroom.

Our first reaction was, that's why so many defense lawyers need help when it comes to litigation pr, they don't get enough practice trying out their arguments on real people, that is, juries.

Our second reaction was more visceral: maybe we're better off.

We are always on the lookout for interview examples that make great training lessons. Here is General John Abizaid being presented with a loaded question by CBS reporter Lara Logan. Does he accept her false premise? No, he refuses to do so and uses it to make his point strongly. When Logan tries it a second time, and then tries to trap the general in another statement, he flips her question back at her and makes his point even more forcefully.

The lesson here is that a false premise question is an opportunity, not a threat, to a prepared and practiced spokesperson.

Send us more if you see them. Thanks to our friends at Power Line for the clip.

The New York Times' David Carr wrote an interesting piece about the current flood of subpoenas reporters are geting for their notes and sources. It chonicles the current frustrations of Eve Burton, Hearst Corporation's general counsel.

Some quotes from Ms. Burton:

“The government is apparently willing to spend three years and millions of dollars putting two reporters in jail,” Ms. Burton said. “They won’t get the information they want. These guys made a promise and they are going to keep it.”

and

“The culture of the press as an independent body is now under attack and if this continues, will come to be seen as an investigative arm of the government.”

Good talking points and no doubt she believes it. However, Lawbeat's Mark Obbie offers as his take on the story and the legal climate for journalists today this quiz:

Are reporters facing more subpoenas for their notes and confidential sources because:

A) the public hates them
B) the law has changed
C) reporters have failed to convince the public that important stories won't be told if subpoenas keep piling up
D) all of the above.

The answer, of course, is D.

We would add a few more choices based on our experience both as a reporter for 12 years and a newsbroker for almost 18 years.

First, the public doesn't care what many of today's reporters and editors think is important. Enough journalists have demonstrated a consistent lack of judgment and objectivity for at least 40 years as to give the business as a whole a bad name.

Second, the public doesn't trust journalists (an important ancillary to Obbie's point A) and so a little thumping (to use W.'s onomatopoeic word) with a subpoena doesn't bother them.

Last, journalists have pretensions to professional status but fall short. Despite undergraduate and graduate programs and a multitude of self-congratulatory prizes, journalists have refused to set standards of professional conduct that are as stringent, or more so, than the other professions. The proof is that anybody can call themself a journalist and no one claiming that mantle ever gets disciplined except for the most grievous and public infractions.

So, add our answers to Obbie's choices, with his permission, and we'll cast our vote for "all of the above."

VNRs, or Video News Releases, are under fire and were even before the vehemently anti-corporate Center for Media and Democracy (CMD) issued a report last April showing that this pr tool is sometimes misused by both pr professionals and tv stations. Now CMD has the Federal Communication Commission all goosed up about this great propaganda device. An investigation has been launched. Lawyers, gasp, are writing letters.

What are VNRs? Simply they are informational pieces -- advocacy pieces, if you will -- made to look and sound like real tv news reporting. (They are the video cousin of the Audio News Release, or ANR, designed for radio distribution.) If you are a critic of this pr device, as is the CMD, then they fall into the category of "fake news," or worse, propaganda. If you are a pr professional who produces them, they fall into the category of free speech. If you are the owner or news director of a small market tv news program, they fall into the category of a free source of interesting content.

There are all sorts of VNRs and not all of them are really that controversial. Some are promoting products by building entertaining news stories around them. This is harmless salesmanship. Others are really quite identifiable as corporate press releases. The ones we think are worth discussing are those that advocate a political or policy position.

This is a big topic and not one that we are going to wrap up with this post, but here is our two cents about these advocacy VNRs: The critics and defenders are right and they are wrong.

These pieces present a point of view that favors the corporate entity that paid for them. There is a lot that's wrong with the CMD reporting on this issue, but what is right is that typically, the perspective is pro-corporate and isn't balanced with other views. On the other hand, so what? So much of the real news coverage on tv is anti-business and unbalanced in the opposite direction. Most producers of VNRs are simply trying to get their side of the story seen and heard by an audience that isn't getting a complete picture. Television news directors who use these things do so largely because they are interesting, well produced and are free content. And guess what, it's their right to do so, just as it is their right to air the drivel that their own network news reporters produce. You don't see the National Association of Manufacturers petitioning the FCC to investigate the sources that feed network news reporters their biased positions. By CMD's logic they could. The next time 60 Minutes or a local market consumer reporter runs a story that was fed to them by a trial lawyer, we hope they won't complain about the flurry of letters from FCC investigators.

But put all of that aside. Its seems to us that pr professionals and their clients should avoid putting out video and audio pieces that they try to pass off as news produced by some independent news organization. We're not sure just how much this happens, but is surely does occur. This is not a moral judgment so much as a practical one. The risk of being exposed negates the value of these VNRs. When the story becomes your VNR and not your message, then that's a problem.

For more on this from the point of view of the producers and broadcasters of VNRs, visit the National Association of Broadcast Communicators. There you will find letters written to the FCC by lawyers for NABC and the Radio and Television News Directors Association which are worth reading and an FAQ about VNRs.

But seriously, if you are looking for blawgs, the place to go is Blawgsearch.com. A colleague tipped me off to this great resource and now we're listed there, too. Not too much to say about it except that it is the place to go to find blawgs on any subject. Check it out.

The editors at The New York Sun make the point today that we made in our last post: "So where does Dow Corning go to get its $3.2 billion back."

But they go further to link this most famous trial-lawyer junk-science product liability case to others that are currently in the news:

Indeed, silicone implants join asbestos and Vioxx in the pantheon of products that have been the subject of some of the most irrational litigation in history. Women whose silicone implants had ruptured and leaked couldn't actually prove that their implants had caused the illnesses they were suffering. The majority of today's asbestos plaintiffs can't prove they're suffering any illness at all. And Vioxx's alleged victims can't point to any actual proof that the arthritis drug's cardiac risk is greater than that posed by over-the-counter painkillers. Yet overeager lawyers were happy to sue, and the courts have been only too happy to oblige. Trial lawyers are currently trying to eviscerate Merck, Vioxx's manufacturer.

Oddly, editors at The New York Times take a much more dour tone today despite the fact that their own enterprising reporter, Gina Kolata, blew the lid off of the junk science more than a decade ago. With story after story she showed that there was no link between silicone implants and serious diseases. But that was then and this is now for the Times.

The agency will require the manufacturers to track 80,000 patients for a decade to make sure no health concerns arise. Unfortunately, it has a poor track record in forcing companies to complete post-marketing studies. It will need to be vigilant in keeping the implant makers honest.

Of course it was a series of studies that were by definition "post-marketing" that disproved the causal link between serious diseases and the implants and it was "post marketing" studies that ultimately led the FDA to lift its 14-year ban.

The breast implant case remains the best example of the power of good science over junk science. It also demonstrates the power of opinion and the importance of getting out first and making your case. The trial lawyers did it and Dow Corning was forced to settle in order to contain the damage. Perhaps this lesson was learned by the folks at Merck who, as the Sun editorial notes, are litigating instead of settling.

Merck has elected to fight each Vioxx suit individually, and that strategy seems to be working, but it's hard to fault Dow Corning or asbestos manufacturers for settling the suits against them instead of taking them to trial. The FDA's latest announcement does, however, highlight the broader dangers of leaving the out-of-control liability system unreformed. With the benefit of hindsight it is even clearer than it was before that the only crime Dow Corning committed was selling what was then a perfectly legal product that turns out to be safe. For that transgression, the company was allowed to be eaten alive by the trial bar. Dow Corning managed to survive. Others haven't been so lucky. Congress needs to decide how many more companies will suffer Dow Corning's fate before lawmakers deliver much needed legal reforms.

Not in the new Congress. Maybe the next one.

Word comes today that the FDA has approved resumption of unrestricted sales of silicone breast implants.

The action comes 14 years after the product was pulled from the market in a trial-lawyer-fueled frenzy.. That panic resulted in 19,000 lawsuits against silicone and implant maker Dow Corning and the company's Chapter 11 bankruptcy in 1995. it reemerged just two years ago after reserving $2.35 billion in claims. In all it has paid out something more than $3 billion paid out in settlements and untold millions more in legal fees to defend the product which is safe and effective, as it turns out.

Of course this isn't really news, as Bloomberg reported:

In 1999, the Institute of Medicine, a Washington-based group that provides policy advice to the federal government, reported that breast implants can't be linked to systemic diseases such as cancer and rheumatoid arthritis.

The silicone breast implant case was the biggest litigation pr battle of the last century and a training ground for advocates on both sides. It spawned new and creative ways of communicating which seem primative in today's modern world of the blogosphere. But it also taught us the need to be prepared with good scientific information and a network of educated allies who can make your case when you are taking fire.

That was a lesson learned really from the other side, because the axis of plaintiff's lawyers and their allied consumer front groups were enormously effective in promoting panic and then reaping the rewards. Perhaps that's why they were so grumpy after today's FDA announcement proclaimed silicone breast implants "safe and effective."

``Silicone gel breast implants are the most defective medical device ever approved by the FDA,'' said Sidney Wolfe, director of the Health Research Group of Public Citizen, a consumer safety group. ``The approval makes a mockery of the legal standard that requires `reasonable assurance of safety.'''

Two questions come to mind:

• First, will any lawyer, regulator, so-called consumer advocate or plaintiff's medical expert apologize to Dow Corning?
  
• Second, will this change how the media covers the next big product liability scare?

What do you think?

Walter Olson, the godfather of legal blogging with his overlawyered.com and PointofLaw.com sites, draws our attention to ATLA's plans for the new Congress. The line that grabs us is ATLA lobbyist's assertion that "instead of being on the defense, we will be on the offense."

All of which means that those of us in the legal and litigation pr business are going to be busy making our cases in the court of public opinion on behalf of our clients. Are we ready to go on offense or are we going to play defense? We vote for the former. More thoughts on this in a future postings.

Bob Ambrogi and J. Craig Williams, blawgers extraordinary, have an interesting interview on their Coast to Coast podcast:

From print journalists and blawggers to television reporters and radio personalities, the law is constantly changing and we are kept informed by the individuals who bring us the news. On this show we will hear from those who report on the law-a producer and a reporter. Join co-hosts and Law.com bloggers, J. Craig Williams and Bob Ambrogi as they turn to those who report the law. Coast to Coast welcomes, Erin Mooney, producer of NPR’s Justice Talking and David Frank, Senior News Reporter from Massachusetts Lawyers Weekly. Don’t miss it!

Click here to listen.

Once again lawyers have overreacted and filed a lawsuit that harms their client's reputation more than it helps. The Wired GC has the story. Interestingly, it is a trademark infringement case involving a sports artist's use of the crimson and white of the University of Alabama's football uniform.

You IP lawyers need to get a sense of humor, or at least of proportion.

We were part of a story in National Journal last month about public relations professionals who specialize in Supreme Court cases. Just now got around to posting this, unfortunately. We can't link to the whole article but here are the excerpts about us:

Bork has employed a similar strategy in terms of reaching out to editorial writers and reporters. He described an effort to get a case reviewed by the Supreme Court. The Court grants a review, "a writ of certiorari," to only a small percentage of the petitions filed each term. For example, when the Court's current term began on October 2, the justices denied certiorari to 1,900 cases and agreed to hear 37. As part of the process of "getting cert," lawyers file petitions outlining their argument, and some Supreme Court lawyers believe that if they can convince the Court that the case is of broad national interest, they stand a better chance that the justices will hear it.

"It's helpful to create an information environment apart from a cert petition," Bork says. "One doesn't know how much influence it has, but if a case is getting some notoriety in the press, then it's an important case, and one can only think that it seeps into the thinking of the clerks and justices. It won't make a difference in itself, but it might provide that little extra help." Carter Phillips, a managing partner at Sidley Austin who once served as a law clerk to then-Chief Justice Warren Burger, agrees. "When you are seeking Supreme Court review, you can cite it [an article] in a petition," he said. Even better is the news story that spurs a group to file an amicus brief in support of a client's request for a Supreme Court hearing, because so few petitioners combine their request with an amicus brief. "It's a solid indication that this is an issue of greater significance," Phillips says. Bork represented Festo, the U.S. unit of a German magnetic cylinder manufacturer, in a 2001 patent dispute involving SMC, a Japanese-owned cylinder maker. Festo wanted the Supreme Court to review its case, and the company turned to Bork for help.

"Everyone said we wouldn't get cert, so what we tried to do was position it as the biggest patent issue known to mankind with important implications, whatever the outcome," Bork explains. His work led to numerous stories in the business press and several editorials, including one in The Wall Street Journal, "which is rare, because people don't like to write about cert petitions," Bork says. The Court agreed to hear the case in June 2001.

BTW, we liked the photographs that NJ's Rick Bloom took for the article that we bought a couple of outtakes for this website. He can make anybody look respectable.

Funny post today on the Wall Street Journal's Law Blog. "Why do defendants always mount a 'vigorous' defense?" Peter Lattman invites readers to think of other words to describe the job that defense lawyers do for their clients. Some good comments.

Back in 2005, the BP refinery in Texas City, Texas exploded. Fifteen people were killed. Eva Rowe's parents were among them and her wrongful death suit against the company was the last remaining and was to go to trial on Monday. Ms. Rowe settled her lawsuit yesterday with BP agreeing, according to reports, to pay $60 million to a variety of charities and safety research programs.

Why the last minute settlement? Perhaps it had something to do with the plans of the United Steel Workers Union to webcast the trial live on it website, TexasCityExplosion.com. We've built a number of websites to defend our corporate clients -- pretty good ones, we must say -- but this one is a masterpiece of litigation pr. Hey, even if you're on the other side, you have to appreciate the craft. In addition to the live webcasts, TexasCityExplosion was going to feature video recaps and analysis, key evidence that readers could download including "key video depositions, documents, presentations, videos and more." The site was even going to have a debate forum where readers could "Create blogs, chat, vote, argue and speak your mind."

Of course, there was a link to Brent Coon, the lead plaintiffs' law firm for the trial.

One wonders just how much of all this was really going to be available, and how much of it was to affect the outcome that transpired yesterday. But we have to take it at face value and say simply, wow!

It is easier to level allegations than to defend them and corporate counsel need to be careful when communicating their case. Still, we would love to see more agressive defense websites. If you know of any examples, we will feature them here at Legal PR Blog. Send the URLs to us here at rbork at bork dot com.

A tip of the hat to legal blogger, The Tortellini, for posting about the settlement and union website.

Want to know how it's done, legal pr, that is? Read Kent Jarrell's comments on behalf of Merck and its lawyers, Hughes Hubbard & Reed, LLP when asked about the company's plan to increase its reserves for Vioxx legal defense from $685 million to $958 million.

Jarrell's fulsome reply to questions from Fortune's Legal Pad blog was informational, complete, and without hyperbole. It was supportive of the defense's legal strategy in the cases.

"As we examine cases, we are finding, time after time, that the allegations are not backed up by facts. The claims of over 3,000 plaintiff groups have been dismissed to date. More specifically, there have been over 1,100 plaintiff groups whose claims were dismissed with prejudice either by plaintiffs themselves or by the courts. Over 2,000 additional plaintiff groups have had their claims dismissed without prejudice. Almost 800 plaintiff groups had their claims dismissed by courts because plaintiffs did not submit fact sheets or were dismissed by plaintiffs themselves after Merck noted their failure to submit fact sheets.

"From the beginning, Merck has said it would look at this litigation on a case by case basis. That is exactly what we have been doing. It takes resources to back up our ongoing strategy and that is what this reserve increase is all about. We face a rigorous trial schedule for the rest of this year and into next year. We have the legal infrastructure in place across the country to ensure that we continue engaging in a vigorous defense of this litigation."

This is yet another example of why it is good to work with responsible legal bloggers like Roger Parloff who writes Legal Pad. Jarrell was able to get his complete 321-word statement published, not chopped up as it would be in newspapers or on television.

By the way, Jarrell heads the litigation communication practice at APCO Worldwide. We sometimes compete, but we will always give a nod to great professionals here on the Legal PR Blog.

There's a great new blog about legal reporting called LAWBEAT. It's written by Mark Obbie who is director of the Carnegie Legal Reporting Program at the Newhouse School at Syracuse University. Mark is a former reporter and editor who has covered law and the business of law for many years.

Read more »

Updated 1/17/2007 11:23:12 AM

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It's our birthday

By  Robert H. Bork, Jr.  ·  Monday, November 06, 2006

Bork Communication Group -- BorkCG for short -- is five years old today. This is our third company doing litigation and crisis pr and in total we've been at this for going on 15 years. But it was five years ago that we said good bye to Bork & Associates and opened up shop in this latest configuration. Thank you to the many clients who have been with us through all three iterations and those who have joined us in the last five years. Thanks for the privilege of working with you. We've learned a lot from the experience and made some lifelong friends in the bargain.

Updated 11/6/2006 9:52:26 PM

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How hard is it to apologize?

By  Robert H. Bork, Jr.  ·  Wednesday, November 01, 2006

"I didn't apologize right before I did apologize."

Okay, Senator John Kerry didn't say that, but it sounds like something he famously did say once before and might have said this time. Politics aside, the senator's non-joke is instructive (as if we need more lessons on this point) of when it is best from a crisis pr perspective to just swallow hard and REALLY apologize.

This would have been over a lot faster if he just said, "That was a dumb thing to say and I am sorry."

Instead it took the tin-earred politician two or three attempts at contrition before he got close to getting it right. First came the non-apology-apology, then the sort-of apology.

Here's rule Number 1 of apologizing: Apologize, completely and abjectly. Do it once and then stop. This works if the apology is less bad than the infraction for which you are apologizing.

Here's Exception Number 1 to Rule Number 1: Don't apologize if the consequences of apologizing are worse than the infraction for which you are apologizing. I have had a number of clients in this predicament and seen many others from afar. Example: your apology is an admission of legal liability. I've known many the corporate executive who has found out about a screw-up in his or her company but can't do the right thing because to do so would expose the company to gigantic settlement costs or jury awards. Here's what you do on those circumstances: Defend your situation as best you can and then change the subject. Defend and deflect. Add a sprinkle of contrition if you can. You'll feel better and it might just let the air out of the balloon before it bursts.

Updated 11/6/2006 9:45:34 PM

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