Gallavin on Litigation: Litigation and the media

By Chris Gallavin

While in the vast majority of cases the media play no role in the litigation process in a number of cases their involvement is significant.

More often the role of media is key in public interest cases of judicial review although in the context of some criminal cases a fully worked out litigation strategy would benefit from consideration of the role of media. Rather than a pawn in the media circus, I here encourage litigators to recognise the influence of media and to ensure that it is they, as the legal team, who are in the driving seat of publicity and not the other way round.

Judicial review

Let us start with judicial review. Litigators recognise that in all but the rarest of occasions judicial review is a means to an end and not an end in and of itself.

Judicial review will often be instigated to press the restart button and therefore effectively buy time for a political resolution to be agreed and consequently to make room for the engagement of a public relations strategy and/or political lobbying.

Although ultimately unsuccessful in saving the school, the Philipstown School judicial review is a case in point – so too the ongoing court action over the future of the Christchurch Cathedral.

Connections within the media and even the bringing on board of journalists in the litigation process from an early stage are key points I believe all litigators should at least consider in the context of high profile cases.

At the time of writing this column the John Banks case has resurfaced again on the Court of Appeal releasing its call back decision on the issue of a retrial. This case is a poster boy for public attention and use (or misuse) of the media in raising the plight of those involved in the proceeding.

In referring to “those involved in the proceeding” I do not limit myself to Mr Banks himself, far from it. This case has been as much if not more about the role of Mr Dotcom, the electoral system, even the Prime Minister and latterly the role of the Solicitor-General.

A failure to recognise, manage and if possible influence and steer the court of public opinion no matter the role you or your client have played within an action will often represent a failure to adequately act for yourself or your client.

In fact, I suggest that in many circumstances the media game will be more important to a client than the question of who wins the court case itself. Clichés of winning battles but losing wars and short-games and long-games spring to mind but in all of these the media, public perception and the overall objective beyond the court room must be a substantial if not guiding consideration of litigators in best representing the interests of their clients.

Criminal cases

In criminal cases the role of the media is often quite different and one in which the lawyers involved are bound by protocols and etiquette that is necessarily more strict.

While adhering to appropriate professional conduct I do believe that we have a paucity of best practice in the area and that ultimately litigators could do much more to advance the position of their clients.

Jonathan Krebs and Ingrid Squire as counsel for Teina Pora led us all through a master class of media engagement over an extraordinary length of time in advancing the Teina Pora miscarriage case.

Aided by Tim McKinnel their engagement with the media appeared considered and thoughtful and ultimately the result of the building of a relationship of trust and confidence.

No one in their right mind would pretend to ever “control” the media and any delusion of “manipulating” the court of public opinion would likely result in a spectacular misfire but the fact remains that much can be done to foster media relationships and that ignoring the influence of the media will often be a fraught strategy taken on only by the bold or the ignorant.

Digital strategy

With any media strategy comes a digital strategy and while litigation budgets are never likely to cover anything of a sophisticated nature, keeping abreast with the digital life of the individuals or corporations you represent will undoubtedly be a growing aspect of your litigation practice.

I am aware that for most of you the suggestion of courting the media as part of a litigation strategy may appear like conduct unbecoming – and a blunt or over-egged approach to the media and PR could easily fall into that category.

That said, in the realm of PR, some criminal cases and even large public interest civil cases a failure to strategise a media and/or digital campaign will be a failure to adequately represent the interests of your client.

In such circumstances litigation lawyers risk becoming an anachronism of the past to be pushed aside for digital profile consultants.

Dr Chris Gallavin is an Associate Professor and Dean of Law at Canterbury University. He has published extensively on criminal justice and on evidence and procedure in particular. He is the author of the appellant handbook, Evidence (LexisNexis, Wellington, 2008), and regularly undertakes consultant work in the area of the law of evidence.

This was first published in LawTalk 866, 5 June 2015, page 23.