Litigating the High Profile Case

A panel of prominent attorneys and judges discuss how to litigate a high profile case and manage the media:

MR. MADIGAN: I'm Mike Madigan and I am honored to moderate today's panel, which I am sure will be interesting and no doubt provocative. Let me introduce our panelists. First, on my immediate right is a man who really needs no introduction.

Bob Bennett and I were federal prosecutors together in the 1970s. Over the years, he has been involved in too many important cases to even list. He was involved in the BCCI matter. He represented Secretary of Defense Clifford. He was involved in the Iran Contra matter. He represented Secretary Weinberger successfully. He served as Special Counsel in the Senate in the Charles Keating Hearings. He represented Congressman Rostenkowski; Senator Durenberger; Harold Ickes of the Clinton White House; and, of course, most recently he represented President Clinton.

On his right is Plato Cacheris. Plato is one of the Deans of the Bar here in Washington, D.C. -- I think perhaps Co-Dean. Earlier, Plato, I saw your co-dean Mr. Jake Stein, passing through the hotel and he may be making an appearance here a little.

In any event, Plato started his career as a Department of Justice trial attorney. He was First Assistant United States Attorney over in the Eastern District of Virginia. He, too, has handled too many of these cases to even list.

He was also involved in the BCCI matter. He was involved in the historic Watergate investigation; in the ABSCAM investigation; also, in Iran Contra; in the famous Ill-Wind investigation that was in the news a number of years ago. More recently, he has handled several of what we have called the "Spy cases". He represented Aldridge Ames and, more recently, Robert Hanson, in highly publicized, big-stakes representation. If I recall correctly, Mr. Hanson was threatened with the death penalty at one point. Also, during the Clinton Administration, Plato represented Monica Lewinsky.

On his right is Roger Cossack. Most of you know Roger from CNN. He is the Chief Legal Analyst at CNN. He hosts, and has for a number of years, the highly rated show called Burden of Proof. But, indeed, prior to becoming a television celebrity, he was a practicing lawyer. Roger, before he became a TV celebrity, argued a number of cases, including the Leon case, in the United States Supreme Court. And I think perhaps Roger's like my old mentor, Senator and now Ambassador Howard Baker, who said, when people asked him, was he a lawyer? He said, well, I was a lawyer, but I got over it. Roger went to the media world, and we are going to talk to him about the other side of the coin, so to speak -- the effort of the members of the Fourth Estate to get information from your clients, from you and from others.

MR. COSSACK: I'm the man that ended the Fourth Amendment, as you may recall.

MR. MADIGAN: On Roger's right is Judge James Robertson. For the last seven years, he's been a member of the United States District Court here in Washington, D.C. In the surveys of the Bar, which occur every year, he has gotten rave reviews from the lawyers appearing before him for his fairness, thoroughness, and intellect. He, too, had an outstanding career before going to the bench. He practiced for, I think, over 25 years. I was telling him a little while ago, that in January I will have been with Akin Gump as a Partner for 25 years. He spent 25 years at the law firm, Wilmer, Cutler and Pickering here in town, one of the premier Washington law firms. He took time out in the early stages of his career at Wilmer, Cutler to go become Chief Counsel to the Lawyers Committee for Civil Rights Under the Law down in Jackson, Mississippi, during the historic time of 1965 to 1969. He was also very active in the Bar here. He was President of the Bar. I had the honor of serving on the Board of Governors when he was President. He was one of the best Bar Presidents we have had.

Since he has been on the Bench, he has had a number of significant cases, most recently the indictment of Webster Hubbell. The Hubbell case ultimately went on to the D.C. Circuit and on to the United States Supreme Court.

So, with that introduction, I am going to sit back down and see if we can talk through some of the issues. The cases that we're going to be talking about today are going to be hypothetical, so any resemblance of real cases is simply coincidental.

Let me start with my friend Bob Bennett, and I thought we'd go about it by, perhaps, examining some hypothetical situations that may occur, and how a lawyer and the members of the Fourth Estate and the court would react.

So, let's suppose, Bob, that you're sitting in that modest office of yours down at Skadden Arps overlooking the Washington Monument, and the phone rings.

MR. BENNETT: He's such a smarty, isn't he? He hasn't changed a bit. Been this way for 30 years.

MR. MADIGAN: ... and you get a call from a prominent elected public official who's under investigation by Congress. Perhaps there's a civil lawsuit filed. Considerable media attention has been drawn to it. There's talk of a criminal investigation, but at this time, there is no Grand Jury. And you are asked to take the representation. Why don't we start by perhaps sharing with us, in that kind of a situation, where it is a public official, where it is very highly visible in the media, how you assess the situation and what do you try to accomplish right at the beginning.

MR. BENNETT: Well, first you say, how am I going to get paid?

Because a disturbing number of politicians feel that it's such an honor and a privilege to represent them that question is sometimes lost. Obviously the first thing you do is you want to meet with the client. As is relevant here, you tell them, until we meet and talk, don't say anything; don't let your press agent say anything; don't let all your supporters say anything. That's obviously the first step. And then, you just start the normal lawyerly process of finding out what the problem is and setting out the terms of what they expect of you, et cetera.

MR. MADIGAN: Let me ask you about that piece, and ask for Plato's views as well. When you have a non-high profile client, it is sometimes easier to get the facts and to get the time and attention of the client. How do you go about it, when the person is very prominent, whether they're chairman of the board or an elected official or a celebrity on CNN -- whoever they are -- I should make that NBC, right, in the example? --

MR. COSSACK: Yeah, keep me out of this.

MR. BENNETT: Well, it has been my experience, we can only talk in general rules here, that very high-profile people, by the time they call you, are very worried and very concerned about their situation. They usually have found themselves in a situation where all of their skills and all of their instincts and talents have let them down up to this point. That is why they find it necessary to call you. So, it's not very difficult to convince them that there's a problem, and you have to really know the facts. So, that's generally been my experience.

Most of the time, political people who get into trouble, or very high-profile people, usually at the front end are much more concerned about their reputations. They sometimes seem less concerned about, whether they will be found liable or not? Whether they will be indicted or not? Most of the time, they are more concerned about their reputations.

Every now and then, they are absolutely shocked that they are in this position. That was particularly true (and I can say this because he has just written a book about it all) with Secretary Weinberger. For five years, thought he was a cooperating witness with the federal government, and one day he got a target letter and, at that point, I was called. He was literally dumbfounded.

I will tell you in all candor that, in 35 years of practice, I have never seen a more outrageous abuse of prosecutorial power than that exercised by Lawrence Walsh in that case. And you can quote me on that, if you want to.

MR. MADIGAN: Plato, let's follow along. Perhaps you are in your office. At the end of a long day, you've sent your tailor off to London as your last act of the afternoon.

MR. CACHERIS: And I owe him money.

MR. MADIGAN: And the phone rings, and this time, instead of a high public official, you are asked to represent a young woman who's in the middle of a media siege. You have actually been following the case; her lawyer set a record, perhaps, of going on nine talk shows in one morning and was then fired. But, this lady is under criminal investigation. She's already been subpoenaed to a Grand Jury, and as soon as the media finds out that you're going to be representing her, they're going to be staking out your office.

What do you do in the first strategic steps, when you step into a case that is literally swirling in a media hurricane, and you're client is right in the middle of it and would like to get out of it?

MR. CACHERIS: Well, with Monica Lewinsky, who you're alluding to, we certainly did not want her to talk to the media. I don't have the luxuries that Bob Bennett has, of sitting in a spacious office overlooking the White House and some guy calls and says, Bob, would you come across the street and see me. My calls might come from a jailer who says, there's a guy in here that needs to see you bad. So I have to leave the office, Mike, and go to jail and meet with the guy who has just been charged with espionage.

Of course, the nice thing about that -- if there is anything nice about it -- is that he's inaccessible to the media and you don't have to tell him to keep his mouth shut because he can't talk to anybody. So, I have a little different perspective. My client's in jail before I've even had a chance to put him there.

MR. MADIGAN: Roger, why don't we stay with the hypothetical of the young lady and take it back, perhaps, when it first breaks into the news. There is a woman who is arrested for allegations of obstruction of justice and a high public official is allegedly involved. She has a lawyer. How do you approach it from the Fourth Estate, to try to get as much information as you can get?

MR. COSSACK: Well, let me just say this. In every example that we've talked about -- we've talked about the young woman, we've talked about the elected public official and we've talked about a spy -- all of those are newsworthy. All of those are news, and every one of those stories deserves to be talked about on television.

Why? We're talking about an elected public official. People vote for these people. We should know about what they do and don't do. That has to do with the Monica Lewinsky story. And certainly, espionage is news, and we should know about those things.

So, now having formed the argument that I am a hundred percent legitimate in going after this, let me tell you all the horrible things I will now try and do to undermine what my friends on the left are trying to do, and correctly trying to do, with their clients. They are trying to keep them away from people like me, because we are absolutely, at least in the particular hypothetical we're talking about now, at totally different ends of what we want. The lawyers absolutely correctly want their clients' mouths shut. The last thing they want is to see their client speaking to someone like me.

I, of course, could care less about what they want. I want their clients speaking to me. So, what do I do? In the situation of the espionage, Plato, and this is exactly what happened; obviously we couldn't get to your client. But, we got to your client's neighbors, who were on Burden of Proof telling us about the family and how they lived, what they didn't do, how they went to their schools, and all of those kinds of things. Monica Lewinsky. Well, we could not get to Monica Lewinsky, either. But there were many people who knew Monica Lewinsky, and one of the wonderful things about the work that I do is a phrase we have in Burden of Proof called an "FFP". The FFP is a former federal prosecutor. And a former federal prosecutor will come in and talk to you about anything having to do with cases that they, most of the time, know nothing about. But they will come in and you can say, joining us today is John Harris. John is a former federal prosecutor with the Central District in California, 3,000 miles away -- besides the fact that he doesn't know anything about the case, he's 3,000 miles away from the case where it is going on. But John is a former federal prosecutor. What do you think is happening in this case? And, you know, John will tell you exactly what's going on.

So, there are many, many ways that we go about it. Obviously, we can't get to your client. Bob, you're smart enough not to let us get to your client. We know that. But we will go about trying to get as much as we possibly can. And people like to be on television.

MR. BENNETT: And if you can't get anybody else, there's always Alan Dershowitz.

MR. COSSACK: There's always Alan Dershowitz. What I was going to say was -- I think I just said people like to be on television. That's not Alan Dershowitz. Alan loves to be on television. Alan Dershowitz -- you could call him at three o'clock in the morning for the opening of a CVS market and he'd be there before you. So, Alan's a given. Alan will come in and tell you about your case and your case and your case, whatever the case may be.

So, that's the way we go about doing it. Never let it be said, and you'll never hear me not say this: even though I am a legal analyst for CNN, I am also in show business and it is up to me to deliver a product on a daily basis that people want to see and people want to watch.

I try to do it in a responsible manner -- as responsible as I possibly can. If you people would let me talk to your clients, it would be better. But you won't and I have to do the best I can. But that's what we do. We will go about finding people. And as I was just saying, people like to be on television, and if you ask enough people, eventually someone will show up who knows somebody, who knew your client, who went to school with your client, or knows something. And they'll come out.

MR. CACHERIS: Mike, Roger reminds me of when Jake Stein and I went down to see Ken Starr, when we first got into the Monica Lewinsky case, to introduce ourselves and tell him that we were counsel in the case. Jake said, "Ken, there's one thing I'm deathly afraid of." And Starr said, "what's that?" He said, "Alan Dershowitz."

MR. MADIGAN: Let's bring Judge Robertson into this discussion.

Your Honor, you are actually coming back to your chambers from lunch and you see a bunch of TV trucks outside the federal courthouse -- all kinds of microphones and satellite dishes set up. As you approach the steps, you see that the prosecutor is holding a press conference announcing the indictment of a high public official. And not too long after that, the defense lawyer is holding his own press conference on the steps of the courthouse denouncing the indictment.

And you go inside and you learn that the case is assigned to you.

Do you have some initial thinking that you go through in terms of how to deal with the media? By this time, the media is calling your chambers, they want copies of whatever they can get. You are going to be handling this case from the beginning to the end. How do you approach it?

JUDGE ROBERTSON: Well, just like Bob's reaction is "how am I going to get paid?", my first reaction after the Court of Appeals' treatment of Tom Jackson is to put my hat over my face when I walk into the courthouse, turn off the phone and not talk to anybody. Period.

But, the situation you've given me so far doesn't cause me any particular alarm, frankly. We start thinking gag order, gag order. Well, there aren't too many cases in which gag orders are necessary or ever were necessary or ever will be necessary.

You hear judges and other lawyers cluck-clucking when somebody gives interviews outside the courthouse. But I think it is more out of some notion that this just isn't done than it is out of any notion that the community is going to be poisoned and prejudiced by what is going on. Mike was good enough to send over to me before this program the kind of thing we know is there but we don't read very often, and that's the American Bar Association rules on trial publicity. They make it very clear that lawyers are not supposed to make public statements, if they know that it will have a substantial likelihood of materially prejudicing an adjudication -- know that it will have a substantial likelihood. Well, how do we know that ?

The trick part of this, though, is on the next page. It says, "Recognizing the public value of informed commentary is great, and the likelihood of prejudice by the commentary of a lawyer who is not involved in the proceeding is small." The rule only applies to lawyers who are in the case.

Well, we have Roger Cossack. We have Greta Van Susteren, we have Alan Dershowitz. We have all these people who get a lot more press time than any of the lawyers standing out in front. If anybody can influence the public's thinking about the case, it's lawyers who don't know anything about the case. In this day of instant-messaging and Internet access and CNN -- thank you -- and all of the other ways that people get information, the old notion of the circus trial, the Shepherd v. Maxwell that everybody reads about in law school, is history.

Shepherd v. Maxwell was decided at a time when television was brand new, when there were two newspapers a day and when the public was a lot more naive about what they got from the press. Today, we are so inundated with public information that it is very hard for me to think about very many cases in which any kind of a gag order is appropriate.

We can jawbone; we can cluck-cluck. But gag orders -- I am not even close to thinking about a gag order on the hypothetical you have given me.

MR. BENNETT: Let me make an observation about that. You know, as a general rule, -- I can't think of a time when I would actually go out and publicly comment on a case that was actually at issue.

But even if Judge Robertson is not going to issue a gag order, I know he isn't going to like it. He doesn't like me -- correct me, if I'm wrong -- he doesn't like me being in his court from ten to four arguing a case, and then at five o'clock showing up on Roger's show. So, I have my own rule and that is I avoid commenting on a case once that case really is at issue. I guess there may have been rare exceptions to that. Most judges will give you one bite at the apple. There is almost a rough sense of justice that when the prosecutor stands out on the courthouse steps, he or she does not really have to give a press conference; they just stand out there and read this awful, awful indictment. That is the most powerful press conference you can give.

And my experience is, most judges aren't offended if the defense lawyer says, "Wait a minute, my client's presumed innocent. Let's wait."

But I think lawyers should not regularly comment at all about a case, when you are actually in litigation.

I think it's wrong, and I think if the opposition does it, you have remedies, which, unfortunately, many judges will not enforce. You go to the court. I can tell you, when we were representing Clark Clifford and Bob Altman, the District Attorney of New York was making statements right before the jury went out and deliberated. And their statements appeared in the New York newspapers. It was a very troubling thing.

MR. COSSACK: I might add that, sometimes, television and the media does offer an avenue for defense lawyers or for opposition lawyers to come back and get something in front of the public, when they have been prejudiced by what the other side has done.

Let me give you two examples that will come right to your mind. One was -- I'll never forget -- Michael Tigar right after Terry Nichols had been arrested, standing up at a press conference at, it seems to me, an auditorium.

He was on a stage holding up a big sign that said, Terry Nichols wasn't there. And he kept holding up that sign and holding up that sign and repeating. And he'd answer questions and he'd answer questions, but it seemed like every minute or two, he'd hold up that sign again that said Terry Nichols wasn't there. And, of course, that became a keystone of his defense. But it came at a time when the prejudice against his client was incredible. And so, he used the media and he used the television to get across a position that he needed to get across to defend his client. Second is Linda Tripp, when she was in the middle of that wire-tapping, case in Virginia, because of the conversations that she had with Monica Lewinsky. Her lawyers came on Burden of Proof often. And the point they kept trying to make was, you know, you may not like her, you may not think much of her or you may think she's wonderful. Who knows? But don't you think that basically this is a chicken prosecution, to bring this prosecution? That was their point. What they were saying was, isn't this piling on? Isn't this a little getting even that she thought she was doing that was the right thing to do? And, isn't this a bad prosecution? And they were very effective with that.

So, sometimes the media can give the opportunity, when the deck is stacked, to come back and have a little opportunity to maybe make it a little more even.

MR. CACHERIS: Since, Roger, I have never had a client that wasn't there, I would find it very difficult to adopt the Tigar approach. But generally, I agree with what has been said here, that the less you say, the better. And certainly, the ethical constraints on a lawyer that is defending someone in a highly publicized case are still there. So, you're better off saying less, and just saying, the burden of proof is on the government and my client is pleading not guilty. That is as far as you can go.

MR. BENNETT: I totally agree with Plato. You are much better off if you never have to deal with the press on these cases.

But the fact of the matter is, if you represent the President in a sex case, there is no way you're going to avoid dealing with the press. It is just a question of how you deal with them. And that presents, obvious problems. There is no way Plato could just ignore the press when he was representing Monica Lewinsky. Then it becomes a question of how you deal with them you and work through a whole bunch of conflicting pressures on you and apply the canons as best you can under the circumstances.

And that's particularly true with politicians. Politicians will say, "well, great, Bob. You're not going to say anything, I'm not going to say anything, and I'll have a trial two years from now but, by then, I'm dead and it's over for me."

That is a very relevant concern.

There was a 6th Circuit case a number of years ago, which is very interesting, involving Congressman Ford, who was a sitting congressman. The district court put out a very broad gag order and it got reversed. The Circuit Court seemed to draw a distinction, interestingly, between the Defendant Ford and the lawyer.

MR. CACHERIS: Well, one case that comes to mind that none of us were in is the Condit matter, which got heavily publicized, Roger -- right?

MR. COSSACK: Right.

MR. CACHERIS: All of a sudden, he decided to give an interview. His ratings went way down after the interview. So, I thought he came out worse just by talking than what he would have done -- he was low already, don't misunderstand me. But no one believed that he was complicit in the disappearance of that young lady. And then, after you watched his press conference, you began to scratch your head and wonder whether he was complicit.

MR. COSSACK: That's probably a good example to talk about for a minute, particularly since Abbe's not here to defend himself.

MR. CACHERIS: It may not have been his fault.

MR. BENNETT: Well, I'll defend Abbe.

MR. COSSACK: Go ahead. You defend him.

MR. BENNETT: Look, I have yet to watch television and see a doctor from GW, who knew nothing about a case, get on TV and say," you know, that guy shouldn't have died; they shouldn't have used this procedure." But lawyers do it all the time.

You do not know what advice was given or not given. I have had many clients that have not followed my advice on something. When you represent politicians, you are not only dealing with a client, you are often dealing with several other people, many of whom are lawyers, many of whom are not lawyers. You are dealing with press aides; you are dealing with public relations people. And advice is coming from all over the place. I have been absolutely criticized on television by talking heads who do not know the facts. You are defenseless and you cannot go on T.V. and say, I advised this and the client rejected my advice. You can't do that.

So, yes -- Condit looked awful. But my guess is it wasn't Abbe's fault. He is a very good lawyer.

MR. COSSACK: I would bet everything that Abbe Lowell told him not to. But let me just say one thing. When you're dealing with politicians in particular, we know the same thing that Bob just said. We know that there is a tension between the lawyer and the press people because there's two things going on. There's the lawyer who is saying, "for God's sake, keep your mouth shut, for the obvious legal reasons." There are the press people saying, "if you keep your mouth shut, you're going to look guilty, and when it comes time to get re-elected, you won't get re-elected, so we've got to get back there and say something." So we talk to the press people; we don't talk to the lawyers.

MR. COSSACK: The press people will come across for us. But we absolutely understand what you said. And as a lawyer, I absolutely understand that, too, that tension you face with these kinds of clients.

MR. BENNETT: And sometimes, it's easy, because on occasion when I get hired, I know exactly what the defense is because the client's been on television telling his story.

MR. MADIGAN: Let's follow up a bit more on the kind of case. Bob is absolutely right. You have no idea of the communications back and forth between the client and the lawyer. But what do you do? What do you do when you have a public official, as you pointed out earlier, who is getting hammered in the press and it is just going on day after day? What kinds of things can you do as a lawyer to try to stop it, or alleviate it in some fashion, other than having him talk, which is what you don't want to do?

MR. COSSACK: You have to remember that this summer, prior to the World Trade Center, was probably one of the lowest news time. And the Condit story is horrible because, as you know, we're talking about Chandra Levy. Is there anyone who doesn't believe that something bad has happened to her? But during this summer, this was almost like beach reading and, you know, I work for a profit-making organization. At the end of the year when the shareholders come in, and they say, how'd we do this year, when my boss gets up and says, well, we didn't do quite as well as we could have, and the reason is because, when everybody else was hammering Chandra Levy and Gary Condit, we took the high road and talked about, intellectual things. But unfortunately, nobody watched us, so our ad revenue went down.

So, then the shareholders say, you know what? How about not taking the high road the next time? And, get as much Gary Condit as you possibly can because people watch that kind of thing. That is another thing that happens, is, when does your case appear? This Rabbi just got a hung jury in Philadelphia. I would have been all over this guy; it's an incredible story. No one even knows about it. He's accused of killing his wife. It turns out he was having an affair with somebody else. Great dramatic testimony -- he sinned against his religion. This was great stuff that, because of the horror that we are facing now, doesn't get on TV anymore.

So, it depends on when it shows up.

MR. BENNETT: Well, I think you can overreact, too. And I think clients tend to overreact. With all due respect to you, I don't know how much impact that has at the end of the day. I think sometimes it might; sometimes it might not. But, I don't know if going on and giving your side repeatedly serves any purpose. You know, a scandal needs fresh oxygen everyday. It's like Count Dracula. If a scandal doesn't get a blood fix everyday, it can wither and die.

MR. COSSACK: Perhaps the other metaphor would be better.

MR. BENNETT: So sometimes, while you think you are out there mouthing all these great things, you're just providing that added oxygen to keep the story going. One thing you can do, and I think very effectively, if the trial has begun, or you are in preliminary proceedings is to write your pleadings just a little bit differently, a little more expansively, dealing with some of the most troublesome things. And then you call Roger up and say, "Roger, you know, instead of listening to these Bozos who don't know anything, why don't you get somebody to read our pleading?" That has an added advantage. There is not much Judge Robertson will do when it is in a pleading, as long as you haven't written something scurrilous.

MR. COSSACK: Then I am not a count. I am that fine legal analyst from CNN, reading this stuff and pointing it out and saying, "Well, in this well-written brief by Mr. Bennett, he points out . . ."

MR. MADIGAN: But sometimes, the media hysteria is so great. I will use an example of a case that I had, the defense of the Chief Justice in New Hampshire who had been impeached by a vote of 290 to 90. We were retained the day of the impeachment. There was a lynch-mob mentality to get him to resign. The press was all over the case. We ultimately tried the case and he was overwhelmingly acquitted, 18 to 4 and 17 to 5. But there was a period of time in the beginning, while we were in the pre-trial, in the court analogy, there would be no judge yet. But there was certainly a court of public opinion. And we did, as lawyers, meet with the press, and provide information so that we would get his side of the story out.

What is your view about that, Plato? I know it depends on the case.

MR. CACHERIS: Well, it depends on the case. I will say that the most highly publicized was, I guess, Lewinsky. My office was across the street, and it was continually surrounded. I could not drive in or drive out without cameras in my face. But, to her credit, she did not speak. There was nothing for her to say. She did not speak, did not give interviews, until the case was essentially over, when she had her immunity and was free to speak. So, there are occasions where I can see where I agree with what you have done, Mike. But, if the person can ride it out, as she did, I think that is the best solution for a party like that. She was concerned about an indictment, and she did nothing publicly to encourage an indictment. So, I think she came out all right.

JUDGE ROBERTSON: I think it is important to point out that what Plato and Mike are talking about is what works in the court of public opinion. But I don't really think it has any impact over an actual trial. Now, Mike, your trial wasn't before a jury; it was politicians who had to vote. And politicians, of course, are tuned into the public airwaves like nobody else is. But I am convinced on the basis of my own experience that juries, for one thing, don't read the paper or listen to Burden of Proof very much. And, if they do, they are quite committed to doing what they say they are going to do and keep that stuff out of their mind. Now, there are obvious exceptions to it, but not very many. O.J. Simpson, Timothy McVeigh, maybe the New York bombers -- a very, very few extraordinarily high-profile cases like that.