Throughout my time in Biglaw and at a few other firms that I worked at as an associate before starting my own practice, a few lawsuits I handled were covered by the press. Some of these litigation matters were huge lawsuits of public importance, and it was expected that media outlets would keep tabs on the proceedings. Other lawsuits were relatively minor affairs that did not have too much public importance. However, even the most unexpected lawsuits can end up being covered by the media. As a result, lawyers should draft litigation papers with the understanding that journalists may cause them to have wider circulation than lawyers might imagine.
I am not entirely sure how most cases end up being covered by journalists. Maybe I should have asked the good people at Above the Law about this process! Perhaps journalists read all of the lawsuits that were recently filed in a given jurisdiction to see if any of them strikes their interest. Or maybe one of the participants in a litigation tips off the media to the dispute. Most news outlets that covered smaller lawsuits were smaller themselves, and the venues involved in the litigation were also less busy. As a result, it would be easier for journalists to troll court filings to see if new litigation had been filed.
Having a case covered by the press can have negative consequences for a matter. For one, it might create ill will between the parties. Even though a journalist might have discovered a lawsuit on his or her own and covered the lawsuit in the press without any input from one party, the other party to litigation might think that the other side tipped off the journalist. It seems somewhat rare for litigants to tip off journalists, since they themselves want to maintain privacy of the lawsuit. In the vast majority of times, no one tips off a journalist that litigation has been filed. However, parties do not like their dirty laundry aired in public, and they hate to think that another party might have leaked information about a controversy to a journalist to embarrass another or gain public sympathy. This can impact resolution talks in a case, so parties should be careful before they decide to contact journalists about pending litigation.
Moreover, journalists, especially journalists who work for local news outlets might not be lawyers, and they may not know too much about the legal process. Accordingly, they may misrepresent allegations in a lawsuit and make errors in discussing the procedural position of litigation. This can be frustrating for lawyers and clients alike who might believe that someone gave bad information to a journalist rather than a journalist just not having enough information to accurately report on a matter.
There are a few things to keep in mind if a lawyer thinks that their lawsuit will be picked up by the media. For one, lawyers should make their litigation papers easily digestible to legal professionals as well as the public at large. It can be easy for litigation papers to have tons of legalese that is meant for a legal audience, but people who are not trained in the law might have a difficult time understanding this. Accordingly, lawyers should draft their papers with a plain narrative that lawyers and nonlawyers alike can understand so that lawsuits can be more accurately reported in the media.
Moreover, lawyers should explain to their clients that it is possible that a lawsuit will be covered by the press. Perhaps more importantly, attorneys should tell their clients that journalists can independently discover litigation without any of the parties telling journalists about the case. This can help calm frustrations about a matter being reported in the media and suspicions that a party may have leaked the case to a journalist. Moreover, lawyers and clients should have discussions about how they want to deal with the press if journalists ask questions about a case. In my experience, clients prefer privacy about a matter and lean away from themselves or their attorneys talking to the media. In any event, lawyers and clients should be comfortable with their mutual position toward the press so there are no misunderstandings.
All told, litigation papers are usually public documents that are easily understandable to all kinds of journalists. Lawyers should expect that many of the lawsuits in which they are involved will be covered by the press and position themselves well if the media reaches out to them about pending litigation.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at [email protected].