Tall tale equals jail?

Marty Dolan, principal at Dolan Law and his associate Karen Munoz represent victims of wrongful death and personal injury. His column “Law and Wellness,” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

Xavier Alvarez of Pomona, Calif., has a long and complicated history with a little thing called the truth.  His whoppers have includes such statements as having dated a Mexican actress, playing hockey for the Detroit Red Wings, being shot down in Vietnam and working as a police officer.

The whopper which could get him thrown in jail was his tale of having served as a marine for 25 years and that he was awarded a medal of honor. What he didn’t know was that particular lie is a crime under the Stolen Valor Act.  The Stolen Valor Act was passed in 2006. The purpose of the act was to discourage people from falsely claiming they had won medals of honor and essentially protect the integrity of those who had actually been commended for their work in fighting for our country.

Alvarez was an elected member of a Los Angeles area water board. This case stems from Alvarez’s statements made at a public meeting in 2007; a year after the statute was enacted. He stated “I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.”

None of it was true. Someone passed along a recording of this public meeting to the FBI. Alvarez was arrested and prosecuted under the Stolen Valor Act.

The indictment was criticized as a violation of the First Amendment, arguing that Americans have a free-speech right to make false and outrageous claims about themselves without facing criminal prosecution. A federal judge upheld the indictment, but a US appeals court panel reversed.

The U.S. Supreme Court heard arguments on Feb. 22.  In earlier cases, the Supreme Court has allowed Nazis to march in an Illinois neighborhood of Holocaust survivors, allowed protestors to disrupt military funerals, and has upheld the sale of violent video games to minors.

The government argued that false statements that cause real and significant harm are not entitled to First Amendment protection.  Alvarez’s lawyer appeared to concede that falsely claiming to have won a medal of honor does not chill free speech.

There are valid points to each side. To falsely claim to be a medal recipient takes way from those who bravely and heroically served our country. On the other hand, public humiliation and being ostracized by one’s community for those lies appears to be punishment enough. Criminalizing telling certain types of lies goes right to the heart of the First Amendment. We will be watching in anticipation to see what the court does. A ruling allowing the Act to stand will certainly have far reaching repercussions with how far the government can regulate all types of speech.

Pre-trial publicity

Tom Ciesielka is President of TC Public Relations (www.tcpr.net). Tom has over 25 years of marketing and public relations experience, working with individual lawyers and mid-sized law firms. He is also a former board member of the Legal Marketing Association in Chicago and has spoken at Chicago Bar Associations CLE programs.  Reach him at tc@tcpr.net

Irvin v. Dowd (1961). Sheppard v. Maxwell (1966). In any legal-savvy person’s mind these two trials are significant for a common reason: pre-trial publicity. Embodied in this concept is a conflict between the First Amendment and the Sixth Amendment– freedom of speech and the press and the right to an impartial jury. Indeed it is imperative that these constitutional preservations are upheld; however, does that mean attorneys should keep their mouths shut at all times, unless in the courtroom?

It is important to remember that an attorney’s duty is to represent the client, inside or outside the courtroom. While some attorneys may never deal with media inquiries, one can never know when a client is retained whose case may turn into a public interest fest. When this happens, a reporter may call or an attorney might be questioned outside of the courtroom. The smartest decision you can make is to be prepared to handle the media at all times, whether before, during or after the trial. The following are some suggestions to help you be prepared from the beginning.

Know who will be talking

It looks unprofessional and unorganized if different members of your party are saying different things to the public. There are two ways to solve this problem. One would be to designate a spokesperson who handles all media questions. This may be the lead attorney or a public relations representative. If others are asked questions, they could politely say, “Let me put you in touch with (spokesperson’s name) and he/she will be able to help you.” The media will be grateful you are connecting them to a key source. Another way to make sure everyone on your side is on the same page would be to hold regular meetings to go over facts of the case and review how certain questions should be handled. This requires trust and faith within your legal party but can be powerful when executed correctly and all members are speaking as one.

Know when to talk

Consider this situation. You get a call from a reporter asking you to comment on a high-stakes suit filed against your client. What do you do? Is “no comment” your only choice? The reality is that “no comment” can be almost as harmful to your client and your case as making a reckless comment. The court of public opinion can be as threatening a place as the courtroom, so be prepared to make comments to rightfully defend your client. If for some reason you are bound by certain restrictions or are thrown off-guard by a question, feel free to say, “I’d like to get back to you on this. Would we be able to talk privately at a later time?” Set up a shorter interview, and the reporter will appreciate your considering his or her needs.

The bottom line is that you as an attorney have a right to represent your client inside and outside the courtroom and especially to defend your client in the face of negative publicity. Granted that there are no confidentiality issues, be confident in speaking to the media about your client and case. Words spoken to the public can be just as important as those spoken to the judge or jury. Pre-trial publicity, while sometimes a very slippery issue, can be crucial to winning in the court of public opinion.