Making comments to the media on behalf of your client

To comment or not to comment: that is the question.

What is the best way to react when a camera and/or a microphone is thrust in your face? How do you engage with the media in a way that is most beneficial to your client?

Don’t avoid the media, work with them - but stick to the message and take control of the interview.

This is the resounding advice received from various experts consulted on the subject. Sounds simple doesn’t it? Well yes, but it takes a bit of forward planning.

Prominent barrister Judith Ablett-Kerr QC has been involved in a number of high-profile cases over the years.

Feeding the public interest is not part of her role as a barrister, Ms Ablett-Kerr says. At the same time, she has had to come to terms with the reality of intense media interest in the criminal justice system in the 21st century.

“I try to always be prepared and avoid situations where you can be coerced into making off-the-cuff comments. Off-the-cuff comments are dangerous. ‘It would not be appropriate for me to comment at this time’, is engraved on my brain.

“I avoid personal observations such as ‘I believe my client’. Such statements misunderstand the role of the advocate which is not to ‘believe’ but to ‘represent’,” she says.

Media training expert Greg Ward says that it is very important to engage with the media by being up-front and available and agrees that people should never use the phrase ‘no comment’.

“To the media, and their audiences, the statement is more likely to mean ‘I have something to hide’. A better option is to simply explain why you have no comment. For example, ‘I am unable to comment on this matter right now because it’s still under investigation’,” he says.

Jonathan Krebs, barrister and convener of the Law Society Criminal Law Committee, says that although it is very tempting to say ‘no comment’, comments are sometimes necessary and consideration should be given to making a comment to create balance in reporting that can be to your client’s advantage.

Mr Krebs says that whether to comment on a case or not is always the client’s decision.

“Whether there is any benefit to making a comment in the media is something that individual cases will dictate.

“Clients often have interests outside the subject matter of the trial and they want to present a position in the media which might balance what people would otherwise assume.

“Sometimes a comment, by way of apology, denial or remorse is important in an individual client’s circumstances and to say ‘no comment’ will often leave the public thinking the worst,” he says.

Whenever possible, encourage your clients to consider at least a brief statement to the media, says Mr Ward.

“If a person chooses to acknowledge wrongdoing, the media quickly heads off in search of another story. Hiding or running away from the media will only extend their pursuit,” he says.

It is essential in appropriate cases to prepare your client for media attention, Mr Krebs emphasises.

“Lawyers need to take control of the process and not be tempted into answering leading questions. It’s the same advice that you would give your client when being cross examined. Be careful that a question is not loaded with assumptions.”

When communicating with the media, preparing and planning your key message/messages in advance is important.

“Give some thought to a particular message that you want to get across,” says Mr Krebs.

“No matter what question is asked, stick to the message. Don’t let people push you into an answer that you don’t want to give,” he says.

If you receive an unexpected enquiry from a reporter, Mr Ward says you should employ a ‘stall but call’ strategy. You can avoid making immediate comments and buy yourself some time to gather some thoughts (and facts) and consider a response, he says.

“The best option is to encourage the reporter to email you their questions, along with any relevant background material. Promise to respond within 30 minutes and if you decide not to comment, send an email explaining why,” he says.

When contacted by the media, Mr Krebs uses this tactic in order to have time to formulate some sensible comments. He says it is very important to try and be non-controversial, objective and un-sensational.

“What will often happen is that the media will go straight into asking a question after introducing themselves. You must to be careful not to answer off the cuff. You have to assume some control over the interview by knowing how you fit in to a story. Simply answering a question is unwise because you never know whether your answer will be the central focus of the story, or used out of context as ammunition to criticise someone else,” he says.

When giving advice to her clients, Ms Ablett-Kerr describes the potential pitfalls of engaging with the media and the rules relating to sub judice.

“The difficulty is that these rules and their enforcement are far from clear at present and the prosecution version of events is often articulated well in advance of any trial by lay people and, on occasion, by the Police.

“I note that the Police have now revised their guidelines in an effort to address such criticism. It is, in my view, essential that the rules relating both to pre-trial and in-trial publicity are urgently reviewed,” she says.

This article was published in LawTalk 779, 26 August 2011, page 11.