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Can Public Opinion Sway Court Decisions in Your Favor?

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Presented to the Christian Legal Society Northern Illinois Chapter. What should be your checklist to support your case. How attorneys can craft their messages.

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Can Public Opinion Sway Court Decisions in Your Favor?

  1. 1. June 7, 2017
  2. 2. “Painting is a faith, and it imposes the duty to disregard public opinion.”
  3. 3. 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.
  4. 4. Although Herod wanted to put him to death, he feared the crowd, because they regarded John as a prophet.
  5. 5. When he saw that it pleased the Jews, he proceeded to arrest Peter also…
  6. 6. “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
  7. 7. “…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.”
  8. 8. 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
  9. 9. 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.
  10. 10.  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
  11. 11. “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
  12. 12. 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
  13. 13. - 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
  14. 14.  The vast majority of lawsuits settle before trial—thus, much public relations takes place well before the case ever makes it to the courthouse.
  15. 15.  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.
  16. 16.  The rise of business and legal media are among the greatest changes in the practice of law in the past 100 years.
  17. 17.  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).
  18. 18. 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
  19. 19. 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
  20. 20. 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
  21. 21.  Will the case merit attention in the regional media or for a particular audience?
  22. 22. Does the case have a compelling human interest story?
  23. 23.  Is the case part of a trend?
  24. 24. “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.”
  25. 25.  Is there a regulatory aspect that impacts consumers?
  26. 26.  Does the opposing counsel have a history of using publicity for their cases?
  27. 27.  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
  28. 28. ◦ 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.”
  29. 29. 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.
  30. 30. 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/.
  31. 31.  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
  32. 32. "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;
  33. 33. Tom Ciesielka 312-422-1333 tc@tcpr.net

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