No Appeal From The Court of Public Opinion

It wasn’t long ago that lawyers understood the limits of their defense of their client in the court of public opinion. There were always roles to play, trying to limit the bleeding, defuse false allegations of fact that were metastasizing into the myth of the case. Defend your client’s honor, if not innocence, by affirmatively asserting that he would prevail at trial.

But as Joel Cohen explains, this has changed.

It used to be, before the 24/7 news cycle , that lawyers were more careful, and prided themselves on that. Judges trusted them more, and lawyers tended to trust each other. But now, a lawyer, for example, Michael Avenatti, might literally withdraw from a court proceeding as Avenatti did rather than give up his soapbox, in order to allow himself the ability to try his case in the press.

Some lawyers have a deep, almost pathological, need to be a star, to see their face on TV every single night, to bask in the adoration of an adoring public when they happen to be on the side the public finds adorable. Is Avenatti a brilliant lawyer?

Is that why he’s got his own dressing room at MSNBC? Is he doing this for his client, Stormy Daniels? Wait, you might have forgotten about her. Her name is almost never mentioned these days, and almost nothing Avenatti has to say has anything to do with her. It’s amazing how people ascribe brilliance to a lawyer when his adversary is loathed for reasons having nothing to do with his efforts.

But Avenatti isn’t a good measure. Under almost any other circumstances, his client would be the object of derision and he would be lambasted for his loud, crude, simplistic and often grossly erroneous legal assertions. Joel Cohen goes to the far more common, and more difficult, example.

While we don’t, and probably never will, know the precise conversation that occurred between Cosby and his entertainment lawyer, Martin D. Singer, who here seems to have acted as “a lawyer in the court of public opinion” following Janice Dickerson’s public accusations of rape against Cosby, one might wonder whether Singer indeed crossed the line.

In a press release, Singer said that “Dickerson’s story accusing Bill Cosby of rape is a lie.”

Unlike Avenatti’s client, Singer’s was reviled. Whether this was a tactically sound way to lash out to the court of public opinion is debatable, but Singer believed it to be his job to defend Cosby, and he did so by calling the allegations against him a lie. Bear in mind, this was well before Cosby was convicted after his second trial, where the judge bizarrely allowed the introduction of extremely damaging and dubiously relevant testimony from other women.

Was Singer’s defense in the court of public opinion beyond his duty as a lawyer? Even the Supreme Court has recognized that the demands of media, of preserving a defendant’s public image and the fair trial that might be lost if he’s so vilified in the media that it will be impossible to seat an untainted jury, can be part of the job.

Justice Kennedy writing for a plurality, has basically blessed the change, specifically stating in a 1991 decision, Gentile v State Bar of Nevada, that:

An attorney’s duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client. . . . [A]n attorney may take reasonable steps to defend a client’s reputation . . . including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.

Mind you, this doesn’t answer the more difficult questions of when or how. How far does one go? Does the lawyer become the personification of the client, or does he remain the detached lawyer, offering only the usual lawyerly words?

Singer called Dickerson a liar. A liar. That’s harsh. And even worse, it’s personal. Singer wasn’t there. Singer can’t possibly know who is telling the truth. He can believe what his client told him. There may be hard evidence to disprove an allegation of fact. But calling someone a liar is as strong as it gets. And so Dickerson sued Singer for defamation, which was subsequently dismissed against Singer.

Simply put, Singer’s comments about Dickerson were deemed to be “opinion”, which is historically not subject to a claim of defamation. Without going into the legal niceties, Dickerson’s suit was complicated by the fact that she is a “public figure”, greatly raising the bar of what she had to prove.

Calling someone a liar is about as close to the line between fact and opinion as it gets. It’s not merely a challenge to the accuracy of allegations, but asserts that the person intentionally misrepresented facts they knew to be false. Singer may have squeaked by on this one, but another court could very easily have found it to be an assertion of fact, not opinion.

It’s perfectly alright for a lawyer to say “my client will be vindicated at the end of the day,” or point to the extreme vulnerabilities of the accusing witness as a witness, particularly based on major inconsistencies in their prior (maybe even sworn) statements about the incident, as long as the public statements by the lawyer don’t threaten to “materially prejudice” the integrity of the judicial process or a jury to be empaneled. Yes, lawyers should, and often do, go to the line. But calling the accusing witness a flat-out liar with absolutely no specifics to back you up other than perhaps your client’s denials? Who wants to risk the consequences of that – the personal consequences to the lawyer, and even the potential consequences to the client?

Assuming the risk of outlandish assertions in order to play in the court of opinion may work if you’re in the exceptionally fortunate position of an Avenatti, but when your client isn’t liked, or your adversary hated, it can backfire. Indeed, it may still backfire on Avenatti, whose wings are likely to be singed as he flies too close to the sun.

But more than the risk to the lawyer for trying too hard to win in a court with no appeal, is it effective? Singer pushed the envelope. Cosby was convicted anyway. Defending your client’s honor is one thing, but attacking an accuser is entirely different. Attacking her so harshly, so viciously, without hard evidence to back it up can be deadly.

7 thoughts on “No Appeal From The Court of Public Opinion

  1. Skink

    Avenatti surrendered his client to his ego. That’s just not lawyering. Singer tried to defend his client from the slings and arrows of the media, which was not necessarily public opinion. We tend to equate the two because we have no measure of public opinion but for the media telling us what it is.

    Singer’s act didn’t near the line. Is the quote so much different than “the evidence will show the story to be a lie?”

    Either way, pandering to the media is just jerking off. Can anyone really believe that what a lawyer says to the media, even if the media gets it right, will influence the 6, 8 or 12 jurors on a case? A rape trial leaves its own stain on the defendant. A guilty verdict changes nothing in the media or the “court of public opinion.” A not guilty verdict relieves some of that, and that is the time lawyer-speak might have effect.

    1. SHG Post author

      Well yeah, a statement that “the evidence will show” anything is very different than “she’s a liar.” Evidence. It’s what’s for dinner for criminal defense lawyers.

      Words are out tools. Using them well and carefully is what distinguishes a good mechanic from a hack.

  2. Fubar

    Calling someone a liar is about as close to the line between fact and opinion as it gets. It’s not merely a challenge to the accuracy of allegations, but asserts that the person intentionally misrepresented facts they knew to be false. Singer may have squeaked by on this one, but another court could very easily have found it to be an assertion of fact, not opinion.

    An opinion, perhaps: “He’s a liar.”
    A pure fact: “His pants are on fire.”
    Falsely, not defamation
    Across the whole nation.
    So assert it. Your risk is less dire!

  3. Justin

    Calling someone a liar is harsh, but saying someone drugged and raped you is even harsher.

    Plus, I think there should be an exception made given that Janice Dickinson publicly accused him of rape while never notifying the police. It’s one thing if this is a case headed to trial and the Defendant’s attorney takes a pot shot at the plaintiff to play the PR game. But Janice, like many of women these days, come forward with little regard for the man’s reputation, or his “right” to fairly address the accusation.

    1. SHG Post author

      That may (or may not) be, but she’s not the lawyer but a participant. The two are not comparable.

  4. Casual Lurker

    Side note: Avenatti and Anthony Scaramucci are trying to sell a crossfire-like debate show.

    Subsequent to an NYT article,* the pair started doing the late night talk show circuit (appearing on Steven Colbert’s The Late Show and elsewhere), in an attempt to gain support for the idea.

    It quickly gives you a sense of where Avenatti’s head is at. I’m reminded of an old Jimmy Durante line: “Everybody wants to get into the act!”

    However, my sense of Mr. Avenatti’s porn actress client is she’s less interested in the outcome of her legal dispute than in the generated publicity she receives, as demand for her content — both that in which she appears and that in which she acts solely as the producer — has skyrocketed. So Avenatti may in fact be serving the client’s interest, at least as far as she’s concerned.

    *New York Times
    “Show Starring Avenatti and Scaramucci Is Being Pitched to Television Executives”
    May 17, 2018
    https://nyti.ms/2GsBUY3

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