Thomas ButlerThomas Butler

On a regular basis, we see everyone from Hollywood celebrities to brand-name consumer products like Johnson & Johnson’s now infamous baby powder dealing with the fallout from litigation and scandal.

Our Constitution affords everyone their day in court, but the instinct to protect your besmirched name must go beyond a jury of your peers and into the court of public opinion, where sometimes the sentence delivered is even harsher.

Famed litigator and civil rights activist William Kunstler knew that dance well. Kunstler was a legal legend who frequently commanded the headlines for defending the Freedom Riders and representing the likes of the ACLU, Chicago Seven and the American Indian Movement. He was even among those with the Reverend Martin Luther King on the day he died.

Journalists flocked to cover his cases because they knew he was a legal commentator they could count on to give them a few great headlines and perfect soundbites. Famed legal writer Sidney Zion called Kunstler, “one of the few lawyers in town who knows how to talk to the press. His stories always check out and he’s not afraid to talk to you, and he’s got credibility.”

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I had the opportunity to work with Kunstler when I was in my mid-20s at one of the big brand-name public relations firms. On a flight back to New York from a client media event in 1993, he turned to me and offered some wisdom: “As an attorney, I can win my case inside the courtroom, with the greatest of legal arguments, but I can also do so as effectively on the courthouse steps with the news media.”

As Kunstler explained to that much younger version of me, while some attorneys write their legal briefs in a perfectly fine and fundamentally well-researched manner, there was also another way to effectively help make a complicated legal narrative—sharing his much more compelling side of the story to allow it to gain more traction when told on evening news broadcasts or by a columnist the following morning.

Fox chooses settlement vs. digging in

Nowhere in recent weeks has that been more apparent than in the Dominion Voting Systems election defamation lawsuit versus Fox News.

At the 11th hour, right before the litigants were set to go on trial, Dominion came out on top with a settlement of $767.5 million. The conservative news network decided the stakes were too high to move forward with a legal process that likely would’ve consumed years more worth of both legal and water-cooler debates. It was more reasonable to come up with a financial solution in advance and cut future potential losses.

The short-term fallout still sent shockwaves through the company. For Fox News shareholders, the value of their holdings dropped by 5 percent, as the company lost $800 million in valuation. For Fox News personality Tucker Carlson, one of the network’s most popular, the settlement agreement is the likely reason for losing his anchor position. For the cable news network to lock out a host with a nightly audience exceeding 3.4 million loyal viewers is quite a statement. But the network weighed its options and decided to stop the long-term bleeding by withstanding some short-term pain.

Not every major bold-faced name makes the same calculation, for better or worse.

Around Labor Day last year, we were asked to conduct litigation support messaging to propel a series of high-profile cases in the news that involved, among other things, an intellectual property dispute over book and film rights versus the rapper Drake, and NBA basketball legend Lebron James.

While the parties had tried unsuccessfully for years to amicably negotiate in good faith, somehow it took the pressure and attention brought to bear by a geyser of international media attention we achieved to motivate the disparate parties. About a month ago, the parties were finally on the road toward amicably settling the dispute.

Madison Square Garden bans lawyers

The head of a respected litigation practice contacted us shortly before the tip-off of the NBA season to advise he was about to become the plaintiff in a unique case versus the New York Knicks and their owner, Madison Square Garden Entertainment.

A proud Knicks fan and season ticket holder for nearly 50 years, he found his subscription abruptly canceled and he and 60 other attorneys at the firm were banned from entering The Garden, Radio City Music Hall, The Beacon Theatre and other MSG venues, simply for being an adverse party in an unrelated litigation vs MSG. This became the seminal case resulting in copycat suits from dozens of other law firms versus MSG bans.

Our team launched the strategic earned media campaign with a one-on-one sit down with the New York Times, for a front-page feature, to be followed by a dramatic story on NBC News.

Our pitch was, how could the management of MSG be so cold-hearted to ban one of its most loyal and longest season ticket holders? And from another perspective, isn’t banning lawyers for simply providing legal representation an affront to our American justice system?

Our client simply wanted his season tickets back, which could have been an easy solution.

Instead, the sports and entertainment conglomerate dug in and soon acknowledged its use—or rather, abuse—of artificial intelligence and facial recognition software to effectuate and widen the ban to more lawyers and firms. In the ensuing months, the floodgates opened, with thousands of earned media stories—in print, digital, blogs, radio and television—addressing the chilling “big brother” aspect of MSG’s actions.

This led to New York political leaders questioning the legality and renewal of tens of millions in annual tax abatements granted to MSG. It caused the State Attorney General to investigate the use of facial recognition in connection with state anti-discrimination laws, while the NY State Liquor Authority questioned if MSG’s ban jeopardized the company’s licenses to sell alcohol at its theaters, nightclubs and restaurants.

All this provoked MSG CEO James Dolan to defend himself and the company in an ill-conceived, live appearance on “Good Day New York,” where the Garden owner only added more fuel to the fire, at a time when diplomacy and lowering the volume should’ve been on the menu.

All of this is truly validation of the wisdom espoused by Kunstler 30 years earlier, and a punctuation point on the essential role professional services communications and public relations practitioners play. An effective and well-executed communications strategy can absolutely move the public opinion needle, especially in litigation. Because sometimes it’s not the jury who will decide your fate.


Thomas P. Butler is President and Founder of Butler Associates, LLC.