Bottom line: A preemptive strike is one of the few ways defense attorneys can turn the tables on plaintiffs attorneys and prosecutors in high-profile legal disputes.

Defense attorneys are typically at a disadvantage in the Court of Public Opinion because they’re always playing defense.

But what if there was a way for defense attorneys and their clients to flip the script in the Court of Public Opinion and actually take control and lead the news cycle?

There is. And I’ll tell you about it in a moment.

But back to that disadvantage. It’s a procedural disadvantage.

It exists because plaintiffs attorneys and prosecutors typically control the news cycle. They are the ones who are filing court documents that allege that the defendants in their cases are committing wrongdoing.

This is frustrating for defense attorneys and their clients - with good reason.

Once they are the subject of allegations in a civil or criminal court proceeding, it is difficult for them to ever tell their side of the story. And more importantly, because plaintiffs attorneys and prosecutors are the ones who are filing the indictments, complaints, etc., in a particular legal dispute, they get to frame the legal dispute in the way that most benefits them and their case.

But there is an underutilized way for defense attorneys and their clients to flip the script, take control of the narrative from the get-go, and take the wind out of the sails of prosecutors and plaintiffs attorneys who are hoping to get good publicity for themselves when they announce that a legal dispute or a proceeding has started.

Defense attorneys and their clients can do this by making a preemptive strike.

This entails going to the media right before they expect a civil complaint or an indictment or some other legal proceeding to be filed against the client, and telling the media and the public about the allegations they expect to be made in that complaint or indictment.

It is the equivalent of an attorney during an opening statement, or while he or she is examining a witness, introducing bad and hurtful facts and themes before the other side gets a chance to do this.

Trial attorneys do this because they know that by being the one to break this news in court to the jury, it won’t look as bad when the other side comes forward and says something similar.

The same thing goes in the Court of Public Opinion.

Defense attorneys and their clients can go to the media ahead of the plaintiffs attorneys or prosecutors in a case, and tell the media and the public that they expect to be on the receiving end of a civil lawsuit or criminal indictment.

By doing this, a defense attorney and their client can frame the case in a way that sets the stage and sets the course for the case in a way that they couldn’t normally do if they were playing catch-up.

For example, a criminal case could be framed as prosecutors run amok, or as a prosecution that is clearly politically motivated.

On the flip side, a civil case could be positioned as a business partner having sour grapes over his or her partner’s (i.e., the defendant’s) success.

Or maybe, the defendant can frame the case as an example of plaintiffs attorneys and their clients seeking a quick money grab at the expense of a local institution.

By going to the Court of Public Opinion first and framing the case in a way that’s most favorable to the defense attorney and the client, the defense attorney and the client are completely flipping the script. They’re making the plaintiffs attorneys and the prosecutors have to now counter what’s already been established by the defense as the framework and the positioning of the case thanks to the defense being the first side to go public.

If an attorney and a client want to pursue this preemptive strike strategy, there are a couple caveats they should keep in mind.

First, timing is absolutely everything.

When it comes to going to the media ahead of an expected legal dispute or legal proceeding to be filed against a client, the attorney and the client need to make sure that they are beating the plaintiffs attorney and the prosecutor to the punch.

But at the same time, they have to be sure that they’re not doing it so far in advance that the plaintiff or the prosecutor decides to not file their papers. They also can’t give the plaintiff or the prosecutor enough time to rebut what the defense is saying publicly by revising their soon-to-be-filed court papers or public statements.

Second, not every case is going to be right for this kind of preemptive strike.

That’s because, in order to pull it off, the attorney and the client have to know that a document is coming. They have to know a legal proceeding is coming.

So if a prosecutor or a plaintiffs attorney says, “On Thursday morning we’re filing our papers, come hell or high water,” that’s great for this strategy because then the attorney and the client know that on Wednesday night, they’re going to the media, they’re announcing that they are going to be the subject of this lawsuit, and they’re making a public statement about the case.

Third, this isn’t the easiest communications tactic to pull off.

I just mentioned that the timing here has to be exact. And I have alluded to the fact that a defense attorney has to know what the other side’s move is.

But a preemptive strike is also tricky because a defense attorney is going to the media to explain the wrongdoing that’s alleged against his or her client.

If the media and the public don’t understand why they should view the proceeding as wrong, inappropriate, and improper, then they won’t support the defense attorney and the client.

For that reason, this is the kind of outreach campaign where I think an attorney and a client really need to work with someone who understands the media and media messaging.

Because if they don’t get the messaging right, there is potential for them to have enormous egg on their face, and to set themselves up to be behind the eight ball for the rest of the time that the legal dispute is pending, because the media and the public had no idea what the defense attorney was trying to say.

These preemptive strikes are not going to be appropriate in all legal disputes.

But in the right legal disputes, they are highly effective tools that defense attorneys and their clients can use to flip the script in the Court of Public Opinion and to take control of the narrative of the legal claim or claims that are going to be filed against the client.

It is rare for defense attorneys and defendants to be able to control the Court of Public Opinion.

Preemptive strikes allow them to do just that.

Bottom line: A preemptive strike is one of the few ways defense attorneys can turn the tables on plaintiffs attorneys and prosecutors in high-profile legal disputes.

Wayne Pollock is the founder and managing attorney of Copo Strategies in Philadelphia, a national legal services and communications firm exclusively serving attorneys and their clients. Copo Strategies helps attorneys (i) engage the Court of Public Opinion regarding their clients’ active legal disputes, and (ii) engage their referral sources and prospective clients regarding their firms and practices.

Wayne was recently named by a leading legal industry publication to its inaugural list of Pennsylvania Legal Trailblazers.

Contact him at waynepollock@copostrategies.com or 215–454–2180.