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Media again a player in lax case

(03/07/08 5:00am)

Under the bright glare of camera lights in the Holeman Lounge of the National Press Club in Washington, D.C., the attorneys and publicist for 38 unindicted players of the 2005-2006 men's lacrosse team announced their intention to sue the University and the city of Durham Feb. 21. The media-saturated event­-with news outlets including CNN, Newsday and The Associated Press in attendance-was a fitting start to the latest episode in the Duke lacrosse saga, which has attracted national press coverage ever since false rape allegations were leveled against three members of the team in the spring of 2006. A motion filed by the University Friday, however, is now attempting to limit the media's involvement in the case, taking a cue from the lessons learned two years ago about the potency of public opinion in the justice system. "There's a recognition that what goes on in the court of public opinion is just as important as what happens in the court of law," said attorney James Haggerty, an expert in public relations relating to litigation. Grappling with ethics One of the issues raised in the University's motion was the plaintiffs' employment of Bork Communications, a public relations firm specializing in "litigation communication." Bork Communications has previously directed the public relations and media strategy for high-profile clients such as companies fighting an alleged Microsoft monopoly, former manufacturers of lead paint and lobbyists for federal legal reform in Congress. The firm's chief, Bob Bork, is serving as the publicist in the suit from the 38 players. "Duke's motion to keep information about this case out of the media is utterly meritless," Bork wrote Saturday on, a Web site his firm established to update the public regarding the litigation. "We will file our response promptly." Bork, however, declined to comment for this story and as of Wednesday afternoon no response or further statement had been posted on the site. A Google News search suggested that Bork has made no public comments since Saturday. University officials also declined to comment for this story. Although Bork has said he is simply providing the public with information, legal experts familiar with the case said the involvement of a public relations firm in litigation brings with it its own set of prickly ethical questions. Professor of Law James Coleman said the lacrosse players' legal team must walk a fine line between informing and prejudicing the public. The University's complaint stems from the concern that the use of publicity tactics by Bork Communications, namely the press conference, media releases and Web site, will unfairly bias potential jury members deciding the case, law professor Thomas Metzloff said. "The creation and aggressive promotion of a Web site purporting to be the 'official source' of information about the lawsuit, the press conference at the National Press Club, and the above-referenced press release, make clear the Plaintiffs' intention to 'use the techniques of modern communication... to win litigation,'" the motion states. But Haggerty, chief executive officer of the New York City-based Public Relations Consulting Group, said public relations firms have the right to disseminate the facts regarding a case. "The information only prejudices a jury if it's untrue," he said. "Getting the truth out in a responsible manner publicly is almost the opposite of prejudicing the jury." In addition, because a very high proportion of lawsuits are settled out of court, public opinion plays a large role in the outcome, Haggerty said. A trial by media? Although there are ethical rules of conduct that govern what lawyers can and cannot say to the media, such laws do not apply for a private public relations firm like Bork Communications, Metzloff said. The University's lawyers, however, contend that the PR firm, in working in tandem with the lacrosse players' attorneys, should also be regulated in its statements made to the media. "To the extent that [the lacrosse players' legal team and the PR firm] are one and the same, I think the court will have the power to control them," Metzloff said. "If not, the First Amendment protects everyone's right to speak." This is not the first time that the appropriateness of statements made to the media by attorneys has been called into question in the lacrosse case. The North Carolina State Bar found former Durham district attorney Mike Nifong in violation of several rules of professional conduct in making inflammatory pretrial statements to the media in the aftermath of the rape allegations. These violations were among the charges for which he was disbarred this summer. Law experts, however, said there is a significant difference in standards governing statements made to the press between civil litigation and criminal prosecution. "We've always been more concerned in the criminal cases about... the poisoning of the well of public opinion one way or the other," Metzloff said. But in recent years, with the proliferation of alternate news sources like the Internet, it has become increasingly common for certain cases to receive a great deal of media attention, Haggerty said. "A lawsuit that has some national significance is often announced to the press," Coleman said. "It's not completely unusual. I think the concern raised by the University in its motion that they not go beyond... with the goal of influencing and prejudicing a fair trial." Coleman and Metzloff cited indictments announced by the Department of Justice as well as Supreme Court cases as examples of cases that generally invite heavy media coverage. "The reality is that the media will cover these cases, anyway." Haggerty said. "It tips the scales of justice by saying nothing as it does by saying something.... It becomes trial by media."