Scott Lauck
Senior Reporter
Missouri Lawyers Media
Originally published in the August 2021 issue of the St. Louis Lawyer magazine. View in the archives.
Most people, lawyers included, are not thrilled to find a reporter at their doorstep or on the other end of the phone. It might be tempting to say "no comment," or to let the call go to a voicemail you have no intention of returning.
But before giving a nosy reporter the brush-off, lawyers should consider the benefits, as well as the risks, of interacting with the media.
If a journalist is contacting you about a case, assume that they intend to do a story about it. Refusing to comment will not make the story go away. But it will affect whether — and how — your client's side of things appears in the story. It is always a good idea to at least return the phone call, even if it is only to decline to comment.
For one thing, it will make you and your client look better. No matter now neutrally it is presented, a line in a story that says you did not return a message inevitably makes it appear that you and your client have something to hide, or that you are scared of the publicity.
For another, declining to comment does not necessarily mean refusing to have a conversation. The reporter may be willing to talk to you on background, meaning that he or she will not quote you.
Although journalists always prefer interviews to be on the record, they also want to make sure they understand the subject matter. Even intelligent and conscientious reporters can misunderstand a legal doctrine or court procedure. A background interview can clear up potential errors before they make it to print or on the air, and it might bring more nuance to the story.
It also is a great time to alert reporters to facts that might affect the story but do not have to be attributed to you. The reporter knows the outcome of your trial; she might not know that a case pending in the U.S. Supreme Court could reshape the law in that area. The reporter knows the amount of the judgment, but perhaps he does not know that a separate court has already declared that the insurance policy does not cover it. With your encouragement, the reporter can look those up independently.
Lawyers also have a way to comment without giving a quote. Briefs, motions, petitions and other court documents are a rich trove of information and they frequently contain quotable sentences that explain your position. If you decline to give an interview but suggest a reporter read a particular document — or even email them a copy — that might suffice.
However, dealing with a reporter purely on background has its downsides as well. It requires a level of trust in the reporter you might not be willing to give. Contrary to popular belief, most journalists take their promises regarding off-the-record and background conversations very, very seriously. But ultimately there is nothing stopping a reporter from breaking that promise and printing what you say (though of course there might be reputational and legal consequences from such a breach). Trust in the reporter and his or her publication is key.
More importantly, remember that anything that is off the record is, well, not part of the record. The journalist's job is to be fair and accurate, not to present your client in the best light. Only you can positively defend the client's conduct or forcefully tell his, her or its story.
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