For most lawyers cases that attract national media attention are something to read about but rarely to experience. Then there is that group of so-called high profile attorneys whose cases are front page stories, and grist for the social media mill. Dealing with the media in a high profile case requires more than bravado and grandiose pronouncements. It requires an understanding of a lawyer’s ethical observations (we do have Rules that govern when and what we may say to the press in certain situations). It also requires confidence that what you say will not end up with that size 12 Gucci loafer tickling your tonsils.
Unfortunately, there are those at the bar who want to wage war in the court of public opinion. In those instances brash statements, not fully founded in fact, can be a trap for the over-zealous. One glaring example of that occurred this week when New York lawyer, Joe Tacopina embarked on the A-Rod media tour; first stop, the Today show with Matt Lauer. Tacopina is a good lawyer. There is a reason for his success and it is not just looking good on camera. This week, however, he was out maneuvered by Lauer.
Alex Rodriguez apparently had embraced the strategy of Vince Lombardi–”the best defense is a good offense”(actually Vince was paraphrasing the 1st century Roman poet, Ovid). Team A-Rod took the battle to the media in an effort to try to repair the heavily damaged image of the former MVP. Lauer must have been clairvoyant because unbeknownst to Tacopina and the rest of the A-Rod juggernaut, NBC had secured a waiver, in writing, from Major League Baseball of the confidentiality provisions of the league’s Joint Drug Agreement (JDA).
We all now know about privacy in the medical arena. With each new doctor’s visit we are provided notice of the privacy provisions of HIPAA (Health Insurance Portability and Accountability Act). Unless we waive those privacy rules our personal, medical information must be maintained in confidence.
So out trots Tacopina with the pronouncement that he would like to address the issues of A-Rod’s purported PED use but the JDA prohibits it. Bam! Like Emeril throwing his patented Essence, Lauer whips out a waiver letter from MLB. The press described poor old Joe as “flummoxed” (to bewilder, confound, confused)! Now as a trial lawyer you never want to be flummoxed in a courtroom. Worse yet is a flummoxing (I think that’s a word) on national TV. Tacopina never saw it coming; but he should have.
A very wise lawyer, Larry Merly, taught me the mantra that guided his career in the courtroom, “Everything is a problem.” While that sounds pretty cynical, the point is that lawyers have to think through all possible scenarios when they build a trial strategy. Consider any possible problem that could arise, and prepare for it beforehand. That strategy has guided my career and I passed it on to my law students as well. If you anticipate any possible problem and try to have a strategy you will rarely be flummoxed. It adds a great deal more preparation time and most of that never comes to fruition.
The worst flummoxing comes when a lawyer is showboating and gets called out. Tacopina wanted to deliver his “best defense is a good offense” message and apparently figured he would dodge the silver bullet of A-Rod and PED’s hiding behind the JDA. Joe, did it occur to you that NBC would have, at some point, reached out to MLB. Larry Merly is still practicing if you need to talk!