Presented to the Christian Legal Society Northern Illinois Chapter. What should be your checklist to support your case. How attorneys can craft their messages.
3. “Painting is a faith, and
it imposes the duty to
disregard public
opinion.”
4.
5.
6. Then Saul said to Samuel, “I
have sinned; I have indeed
transgressed the command of
the LORD and your words,
because I feared the people
and listened to their voice.
7. Although Herod wanted to
put him to death, he feared
the crowd, because they
regarded John as a prophet.
8. When he saw that it
pleased the Jews, he
proceeded to arrest Peter
also…
9. “Consider that the public does not keep track of everything
judges do; follows only the ‘salient’ cases. The hypothesis is
that judges might thus play to public opinion in the visible
cases while pursuing their agenda in less visible ones.”
How so?
the volume of total coverage
more prominent coverage
whether issues receive editorial or opinion treatment
The Subterranean Counterrevolution: The Supreme Court, the Media, and Litigation Retrenchment, 65 DePaul L. Rev.
(2016) Stephen B. Burbank & Sean Farhang
10. “…There is general agreement among political
scientists, and increasing recognition among legal
academics, that more often than not the outcomes of
Supreme Court decisions are consistent with popular
opinion.”
11. But why would the Court respond to public opinion?
Judges are not elected by the public. Still, political
scientists issue an impressive array of evidence in favor
of the hypothesis that the Court follows changes in
public opinion.
“How The Supreme Court Responds to Public Opinion,” by Erik
Voeten, Washington Monthly, June 28, 2013
12. Public opinion may influence which judges are
nominated and confirmed.
Justices may care about public opinion for a host
of reasons that can conveniently be labelled under
the rubric “institutional legitimacy”…even the
U.S. Supreme Court relies to some extent on
voluntary cooperation from other institutional
actors.
13. Justices fear nonimplementation of their
decisions.
When the threat of nonimplementation is
most severe, the effect of external pressure is
strongest.
When justices are more confident their
decisions will be implemented, they are less
constrained by external forces.
“The Supreme Court is constrained by public opinion in cases where the justices
fear nonimplementation of their decisions,” by Matthew Hall, American Journal of
Political Science, February 23, 2015
14. “The quantitative analysis shows that there is a
relationship between the mood of the American public
and individual justice votes.”
“The Effect of Public Opinion on the Voting Behavior of Supreme Court Justices,”
by Kristen Rosano, University of North Carolina Thesis, 2014
15. The strategic behavior explanation:
Justices deliberately pay attention to public opinion to maintain
legitimacy in the eyes of the public (justices are influenced by the
same social forces that the public is).
The attitudinal change explanation:
Justices tend to vote with the public simply because they are
subject to the same social forces.
“The Effect of Public Opinion on the Voting Behavior of Supreme Court Justices,”
by Kristen Rosano, University of North Carolina Thesis, 2014
16. - The Supreme Court is not an unbiased, robotic interpreter of
the law.
- It is a fluid body that responds to real world situations as a real
person would.
- Public opinion can apparently have a real effect on highest
judicial body in the United States.
“The Effect of Public Opinion on the Voting Behavior of Supreme Court Justices,”
by Kristen Rosano, University of North Carolina Thesis, 2014
17. The vast majority of lawsuits settle before
trial—thus, much public relations takes place
well before the case ever makes it to the
courthouse.
18. The media exert an enormous amount of influence
over the course of legal disputes—in everything
from noteworthy but small-scale cases to the most
tabloid-driven slugfests.
19. The rise of business and legal media are
among the greatest changes in the practice of
law in the past 100 years.
20. Just because you don’t have absolute
control doesn’t mean you can’t influence
the way your case is presented to the
public. After all, you have no absolute
control over the judge(s).
21. Social science research has found that “exposure to the
various media had a prejudicial impact on people, as
they were unaware of their biases.”
Media Influence in Capital Cases | Capital Punishment in Context
22. A Stanford University study found “press coverage
magnifies the influence of voters’ penal preferences on
criminal sentencing decisions” of elected judges for
severe violent crimes. When a case receives a large
amount of media coverage, elected judges tend to
sentence more punitively than if the case is less
publicized.
Media Influence in Capital Cases | Capital Punishment in Context
23. Social media allows the public to share facts and
opinions about court cases. This is a challenge for
defendants, attorneys, and judges. Potential jurors who
may not come across a case in traditional media may be
influenced by the reactions of others on social media
sites.
Media Influence in Capital Cases | Capital Punishment in Context
24. Will the case merit attention in the regional
media or for a particular audience?
25. Does the case have a compelling human
interest story?
28. “But HomeAway's suit is
the first filed by a home-
sharing platform. Airbnb
has not publicly criticized
the new regulations,
though it has waged a
public relations
campaign to portray
hosts who use its
service as regular
homeowners trying to
supplement their
modest incomes.”
29. Is there a regulatory aspect that impacts
consumers?
30. Does the opposing counsel have a history of
using publicity for their cases?
31. Create message that the media AND your
target audiences can easily understand
We live in a world communicated in Tweets
Messaging should advance your goals, not
only publicity for publicity’s sake
Credibility and integrity, regardless of ARDC
or ABA guidelines, still rule
“One and done” is not a public opinion
strategy
32. ◦ 1973: Homosexuality no longer classified as a mental disorder
◦ May 30, 1987: Congressman comes out – Rep. Barney Frank becomes
the first openly gay member of Congress
◦ 1993: ‘Don't ask, don't tell’ – enacted by President Bill Clinton
◦ Oct. 12, 1998: Matthew Shepard's beating death – Aaron McKinney
and Russell Henderson rob and beat Shepard, a 21-year-old college
student, and tie him to a split-rail fence outside of Laramie, WY. He dies
on Oct. 12, less than a week after the attack.
◦ 2003: Anti-sodomy law struck down – The Supreme Court strikes
down a Texas anti-sodomy law, reversing an earlier decision made in
another case 17 years earlier that Justice Anthony Kennedy said
“demeans the lives of homosexual persons.”
33. Judge Richard Posner
asked Maley: "Who will
be hurt if gays and
lesbians have a little
more job protection?"
When Maley said he
couldn't think of anyone
who would be harmed,
Posner shot back, "So,
what's the big deal?"
Posner also said it was
wrong to say a decades-
old statute is "frozen" on
the day it passed and
that courts can never
broaden its scope.
34.
35.
36.
37.
38.
39. Burbank, Stephen B, and Sean Farhang. “The Subterranean Counterrevolution: The Supreme
Court, the Media, and Litigation Retrenchment.” DePaul Law Review, vol. 65, no. 2, 2016, pp.
293–322. via.library.depaul.edu/cgi/viewcontent.cgi?article=3970&context=law-review.
Haggerty, James F. In the Court of Public Opinion: Winning Your Case with Public Relations.
Hoboken, NJ, J. Wiley, 2003.
“Media Influence in Capital Cases | Capital Punishment in Context.” Media Influence in Capital
Cases | Capital Punishment in Context, www.capitalpunishmentincontext.org/issues/media.
Rosano, Kristen. “The Effect of Public Opinion on the Voting Behavior of Supreme Court
Justices.” Carolina Digital Repository, University of North Carolina, Library at University of
North Carolina, 2014, cdr.lib.unc.edu/indexablecontent/uuid:5ef2c401-bc54-4706-916b-
04f64e0eecdf.
Voeten, Erik. “How the Supreme Court Responds to Public Opinion.” WashingtonMonthly.com,
28 June 2013, washingtonmonthly.com/2013/06/28/how-the-supreme-court-responds-to-public-
opinion/.
40. Helpful Links
Professional Legal
Resources
◦ Illinois Rules of
Professional Conduct
RULE 3.6: Trial Publicity
◦ ABA Model Rules of
Professional Conduct
Online Social Media
Monitoring
◦ Google Alerts
◦ Meltwater News
◦ CisionPoint
Professional Public
Relations Tools &
Services
◦ PR Newswire
◦ PRWeb
◦ Vocus
Professional Associations
◦ Legal PR Chicago
◦ Public Relations Society of
America
◦ Legal Marketing
Association and the
Midwest Chapter
Recommended Reading
41. "You shall not follow the
masses in doing evil, nor shall
you testify in a dispute so as to
turn aside after a multitude in
order to pervert justice;
Take a poll; How many say yes? How many say no? How many people will wait until the end of the presentation to decide?
For a fight that started over a few thousand dollars' worth of car parts, so much more is now at stake. The policyholders' latest suit alleges violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). And it accuses State Farm, its in-house counsel and a co-conspirator of manipulating the election of an Illinois Supreme Court justice. Not here to talk about buying a bench.
Whoever can answer this gets a hundred grand.
Note his opening comment: “Only vary rarely would that actually matter.”
Where the Lord rejects King Saul
Example of
Recent work by scholars who take a strategic perspective, suggests that the Court does not often have the last word, even on matters of constitutional interpretation, and, as a result, it does not stray very far (or for very long) from what the majority wants.
Dred Scott v. Sanford Supreme Court of the United States People of African descent imported into the United States and held as slaves, or their descendants — whether or not they were slaves — were not included under the Constitution and could never be citizens of the United States.
The Court may care, for instance, that its decisions are not overturned by Congress (especially on non-constitutional cases) or that they are interpreted broadly rather than narrowly. These other actors do depend for their survival on public opinion and thus may pay a higher political prize for undermining the Court when public acceptance of the Court is high. Indeed, politicians may benefit from challenging Court decisions that are unpopular (such as the abortion rulings in some parts of the country)
Public opinion matters.
Research shows that the liberalness of the public can sway a justice to vote in a liberal direction.
Even today the type of case with slaves in he 1800s. Back then the question was “people or property?” Today couples who separate and have frozen embryos are fighting over what happens with them with the same basic point of conflict “people or property.”
Don’t wait until court date to plan public opinion strategy. Example of What Walgreens executive said last night: “every time I saw something I’m thinking how could this play out in a court document.”
Example: Judge Ito For much of the trial, Judge Ito has railed against the news media, particularly television, describing it at times as a pernicious influence on the case and worrying aloud that it could irreparably damage Mr. Simpson's ability to receive a fair trial.
But now that Judge Ito, who once threatened to keep the trial from being televised, has appeared in a five-part series of television interviews on KCBS-TV in Los Angeles, many trial lawyers and legal experts say that he is contributing mightily to the frenetic publicity surrounding the case and raising questions about his judgment.
25 years ago marketing was a dirty word for law firns, not now, and using publicity and trying to influence public opinion has become a staple.
Unless you believe the ABC drama Notorious is a documentary
You can really see the media influence in capital cases.
An Illinois high school football team that lost a playoff football game because officials made an incorrect call won't be in the state championship contest after a judge on Wednesday rejected its bid to overturn the outcome.
Cook County Judge Kathleen Kennedy ruled Wednesday that Plainfield North High School's Saturday win over Fenwick High School should stand. She cited a bylaw of the body that governs prep sports in Illinois, the Illinois High School Association, saying officials' decisions are final
A lawsuit brought by children against the Obama administration may force President-elect Donald Trump to decide how far he’ll go to downplay the threat of global warming.
Youths from across the U.S. won a chance Thursday to pursue claims that the Obama administration didn’t do enough to protect the environment from climate change when an Oregon federal judge rejected the government’s request to dismiss their lawsuit.
The new regulations call for an extra tax on home-sharing hosts, a limit on the number of units in buildings that can be rented out on the platforms and a requirement that hosts maintain records on guests, among other rules.
Clean Line won state regulators’ approval for the Illinois portion of the 500-mile project in 2014 (EnergyWire, Sept. 30, 2014). But landowner opponents and Comonwealth Edison (ComEd), the Chicago-based utility affiliate of Exelon Corp., convinced an appeals court to reverse the decision.