Many journalists offer commentary on legal affairs, but few have a true understanding of the law and the implications of rulings, policies, or statutes. Dan Abrams differs from most in that he is not only a legal journalist, he is also an attorney. The MSBA was excited to welcome Abrams as a keynote speaker at the 2022 Legal Summit and hear his unique insights on the current status of legal affairs in the United States. Abrams focused his remarks on how the media and public perception can impact litigation.
Abrams is the Chief Legal Affairs Correspondent for ABC News, host of: Dan Abrams Live on NewsNation and The Dan Abrams Show: Where Politics Meets the Law on SiruisXM’s P.O.T.U.S Channel, host and executive producer of Court Cam and Taking the Stand on A&E Network, and CEO and Founder of Abrams Media, whose websites welcome over 20 million unique visitors each month, and include the nationally recognized mediaite.com which covers the intersection of media and politics. He’s also a writer of best-selling books and articles in The New York Times, Wall Street Journal, Yale and Policy Review, ABCNews.com and mediaite.com, among others. He also has a new book out, Alabama Versus King, which covers the largely forgotten case that put Martin Luther King Jr. on the map.
In his keynote remarks at the MSBA 2022 Legal Summit, Abrams noted that these days, clients expect lawyers to represent them both inside and outside the courtroom, and while it makes some lawyers uncomfortable, it is a reality they must face. Abrams tells lawyers “you may choose to ignore the media in a high profile case but that that should be a strategy choice—it should be a concerted decision that you [as your client’s attorney] think it is in your client’s best interest and not just based on a sort of broader disdain for the media as a whole.” Abrams also expressed his view that “lawyers always have to remember in high profile cases, what happens outside the courtroom and how the public perceives an investigation or litigation can be as or more important than what happens inside the courtroom.”
Abrams cited the Purdue Pharma case as an example of how the public’s assessment of a legal dispute can affect a company’s reputation and potentially, the outcome of a case. The Sackler family controls Purdue Pharmaceuticals, the company that makes Oxycontin. The Sacklers have been defending lawsuits across the country for years, and Abrams thinks that there’s been a resistance to a settlement because so many have blamed them singularly for the opioid crisis. The Department of Justice continues to fight against liability shields for the Sackler family, and several states held out for more money based in part on the possibility of state law claims.
In Abrams’ view, the perception that the opioid epidemic is the fault of Purdue or of the Sacklers singularly is “literally a multi-billion dollar issue.” It is a great example of where the law intersects with public relations—Purdue and the Sacklers have shelled out billions, their names have been wiped off of buildings throughout the United States, and their public relations team has fought against a media that has made them the singular villains of the opioid crisis, with corrections now being attached regularly to stories about them. Abrams clarified he was not defending the Sacklers, but recently the Washington Post noted that another company, Mallinckrodt, was responsible for far greater sins according to millions of documents that were recently released. There is no doubt in Abrams’ mind that the resistance to settling with Purdue and the Sacklers stems in part from public pressure, not purely legal considerations.
While in some cases it makes sense for lawyers in high-profile cases to let the briefs speak for themselves, in others, Abrams thinks that approach is incredibly short sighted. He would go one step further, and say that in a high-profile case even the briefs should recognize that there is a second audience, the court of public opinion. Abrams suggested that an introductory paragraph can clearly and simply articulate the position without legalese; that’s what the reporters will understand. Abrams always tells people, “the media is really good at covering politics and really bad at covering policy and that’s because politics is easy and policy is hard.”
In another matter, the Theranos case, counsel for Walgreens directly cited to and adopted facts and arguments from different news publications, which Abrams thinks can be a very effective strategy. In his opinion, the way the Theranos lawsuit was framed made it very easy to understand that Theranos was a company that failed to meet the most basic quality standards, while Walgreens is a company providing pharmacy health and well-being services to the community. Abrams likened it to a press release within a legal brief and noted that while it can be distasteful for lawyers to engage in such efforts it can be very valuable from a media perspective.
Abrams also noted that it is important for attorneys to consider the potential backlash a company may face for filing a lawsuit. For example, Gillete sued four former employees who left the company to start their own niche company. The plan to thwart the company ultimately backfired; the suit was thrown out and the media portrayed the litigation as a David versus Goliath battle and damaged Gillete’s reputation. Abrams stated that as much as some lawyers like to separate the courtroom from the coverage it often can’t be done in a high-profile case.
Abrams ended his remarks by advising attorneys to aim for the middle ground between completely abstaining from commenting publicly and constantly going to the media. Healso fielded questions from MSBA members. You can hear the entire presentation here.