This thread DOES comment on pending litigation

June 29, 2005 2:47 PM

When did the practice of refusing to comment on a given issue due to pending litigation become an acceptable response? Is this a fairly recent development -- a result of living in a sue-happy nation? Is it just the vogue rhetoric of avoiding even a minimal amount of accountability? Or is it something else? For the lawyers out there, what are the ramifications of commenting? ... especially with cases like those involving the government?
posted by fourstar to law & government (4 comments total)

The client is cautioned not to say anything about a pending case because (1) he may say something foolish, (2) he may say something that will be used against him in a court of law, or (3) a reporter will (carelessly or purposely) misquote him. Having the lawyer handle all comments limits the chances of 1 and 2, but of course does not necessarily avoid 3.

Many companies have a policy that all requests for comments are to be directed to, not the lawyer, but the PR professional, who is skilled at handling the inquiries and ensuring that a consistent message is given out. Many of those professionals will also make it a practice to say something and will avoid the "no comment" comment. (Saying "no comment" has much the same ring as saying "I decline to answer based on my 5th Amendment rights".) But for those ordinary folks who do not have such people on the payroll, shutting the hell up is often very sound advice.
posted by yclipse at 3:20 PM on June 29, 2005

Say you're a famous celebrity. Let's pretend you've been accused of throwing a phone at someone. Let's say that you might like to avoid any criminal charges based on this incident, because the hotel employee you allegedly struck with said phone would turn around and use those criminal charges in a civil suit to extract money from you. It might be a bad idea then to go on several nationally-syndicated talk shows and profess your guilt by apologizing for said incident. It might be wiser to say "no comment".

But of course, this is all speculation.
posted by falconred at 3:51 PM on June 29, 2005

If you've ever been quoted in the media , you've probably been misquoted. yclipse is right on target.
Our system of "fair and balanced" media coverage is mostly interested in sensationalism , not "news".
Thus "Runaway Bride " is the cover story while"Downing Street Memo" is back burner.
Claiming "5th amendement" privilege in non-criminal proceeding can raise a presumption that what one said would be negative to your position.
Corporations file far more civil actions than individuals in this country. We're not a "sue-happy nation", but that's the story that's being pushed at the moment.
posted by Agamenticus at 4:59 PM on June 29, 2005

I think yclipse's (2) is the best answer. In federal court, there are rules called the Federal Rules of Evidence that control what is and is not admissible evidence. This includes a witness' testimony. Almost all states also have codified rules of evidence similar to the Federal Rules.

Federal Rule of Evidence 801 deals with hearsay, and makes it explicit that an "admission by party-opponent" is not hearsay. That is to say, something that would ordinarily be hearsay (and inadmissible evidence) is taken out of the hearsay definition when it is an admission by a party.

In the case of big corporations, I think there is a fear that a corporate representative will say something that will later be introduced and used against the company.

It's the same reason why, if you get in an accident, you should not say "oh I'm sorry I should have been looking more closely." You might say it to be nice or calm the other driver down, but in court they could introduce that statement as evidence that it was your fault.

A second reason is that the attorney client privilege can be waived by a client in the case of disclosure to third parties. So if a client said something like "our lawyers told us [x, y, z]", then the opposing party could argue that the privilege as to those conversations has been waived and that is fair game to ask about in court.

Overall, I think the rules are sufficiently complicated that it is better to just say "sorry, no comment" rather than risk it.
posted by AgentRocket at 7:24 AM on June 30, 2005