In the Spotlight: What Happens When Your Case Goes Viral

BY COLIN RIGLEY

If you’re a government attorney representing a city in a lawsuit, the last thing you probably want is the type of publicity the city of Everett received for its attempt to regulate drive-thru coffee stands, particularly the type of coverage that occurred on the September 2017 episode of Fox News’ show “Watters’ World.”¹1 www.youtube.com/watch?v=VdL_UK41p_s.

In that episode, host Jessie Watters introduced the plaintiffs in a lawsuit against the city of Everett over the City Council’s proposal for a dress code to limit the amount of skin visible at so-called bikini barista coffee stands. The segment, which lasted all of 3 minutes and 18 seconds, had about as much nuance as you’d expect from coverage that lasted the length of an average pop song.

“Alright, so Britany, you’re wearing a bikini when you’re serving coffee,” Watters said to one of the two women plaintiffs in the interview. “That sounds dangerous to me, but I don’t even really care because it’s so hot.”

Watters’ coverage of the legal complexities of the case didn’t delve much deeper.

“It sounds like a First Amendment issue, you know I don’t have a problem with it. It seems to be a war on women going on out there, something akin to Saudi Arabia. I don’t get it. It doesn’t sound like it’s America,” Watters said. 

As a story, Everett’s bikini barista saga has everything you could want—replete with titillating descriptions of sex, drugs, government censorship, crooked cops, and even a disappearance and the burned-out husk of a truck left smoldering in the California desert.²2 “Bikini barista coffee stands’ owner missing,” Everett Herald, June 10, 2010, www.heraldnet.com/news/bikini-barista-coffee-stands-owner-missing/. The Stranger’s Sydney Brownstone, for instance, wrote in 2018 about “the terms of Everett’s ban on ‘bottom one half of the anal cleft’ and ‘more than one-half of the part of the female breast located below the top of the areola.’”³3 “’Anal Cleft’ Is Actually Easy to Define, City of Everett Argues in Bikini Barista Case,” The Stranger, April 2, 2018, www.thestranger.com/news/2018/04/02/25983148/anal-cleft-is-actually-easy-to-define-city-of-everett-argues-in-bikini-barista-case. It’s the type of story that is immediately attention-grabbing and outrage-inducing; in other words, it’s the type of story that made Everett Deputy City Attorney Ramsey Ramerman’s job that much harder.

“It’s a really powerful meme that you have to overcome,” Ramerman told Bar News.

Ramerman was two weeks into the job when, in 2009, the Everett City Council first began dealing with the fallout from two proposed ordinances intended to curb illicit activity being reported at bikini barista stands in the city. However, the city’s tactic was to place restrictions on the type of dress allowed at those stands.

“The issue of when dress qualifies as speech has been litigated a fair amount, and generally this [ordinance] fell on the side of most of the decisions,” Ramerman said.

So, to Ramerman, the city had sound legal standing in its actions—to the public, it was pariah fodder. Herein lies the rub. No matter how sound the legal arguments may have been, there was no chance Everett would not be facing an uphill battle against the narrative of a city hellbent on shaming women’s dress or lack thereof.

“It was really hard to convince people because they wouldn’t take the time to really dig into the facts …,” Ramerman said. “I think the biggest thing for lawyers is just recognizing the power of a narrative. … I think 99 percent of the initial reaction of people I’ve spoken to is, ‘Why does the City Council care about this?’”

Ultimately, the city settled the lawsuit.⁴4 “Everett to pay $500K to end legal battle with bikini baristas,” Everett Herald, April 6, 2023, www.heraldnet.com/news/everett-to-pay-500k-to-end-legal-battle-with-bikini-baristas/. Ramerman thinks the case would have played out differently if not for how it went viral. With the public firmly opposed to the narrative—and not the legal arguments—the city couldn’t continue to fight the lawsuit indefinitely and drain public coffers, regardless of whether the law was on their side.

“Technically correct, nuanced legal arguments don’t always prevail—even if they’re technically correct,” Ramerman said. “Facts matter and narratives matter. Being legally correct is not always going to prevail. And I’ve always thought that to a certain extent.”

Perception is Everything

Independent, objective, fair—these are words that are often associated with the Platonic ideal of our legal system. Yet, in a high-profile case, the independence, objectivity, and fairness of court can be thrown into question for the public and legal professionals.

“Though the Sixth Amendment guarantees the right to a fair and impartial trial, multiple studies have demonstrated the biasing impact of pretrial publicity on juror decision-making,” wrote the authors of a 2021 article in the American Psychological Association journal Monitor on Psychology.⁵5 Monitor on Psychology, American Psychological Association, “Can we fairly select jury in high-profile cases?” www.apa.org/monitor/2021/06/jn. The authors continued, “Studies have shown that exposure to pretrial publicity affects jurors’ perceptions of witness testimony, defendant credibility, defendant culpability, and ultimately their verdicts. Research also suggests that negative pretrial publicity may increase the likelihood of guilty verdicts, whereas positive publicity may decrease that likelihood.”

Indeed, in the January 2011 edition of the New York Law School Review,⁶6“The Media, the Jury, and the High-Profile Defendant: A Defense Perspective on the Media Circus,” New York Law School Review, January 2011, https://digitalcommons.nyls.edu/cgi/viewcontent.cgi?article=1627&context=nyls_law_review. attorney and law school professor John Meringolo wrote:

Overall, the media, predominantly through information disseminated by the prosecution, not only provides factual information to the public but also preys on emotions, an effect which cannot be quantified. The intangibility of emotional and psychological effects makes it nearly impossible to completely diminish prejudice from society as a whole, much less eradicate it from jurors. … [D]ue to the intangible effects of emotionally charged pretrial publicity, the effectiveness of available counteracting procedures is difficult to quantify. As demonstrated, the social sciences have created a large body of work covering this subject; yet the conclusion remains that some questions surrounding the media’s influences on juries will never be answered. While the actual effect of the available remedies is perhaps unquantifiable, prosecutors and defense attorneys believe advantages are to be gained through them, whether real or imagined.

David B. Owens is an assistant professor of law at the University of Washington School of Law and director of the school’s Civil Rights and Justice Clinic. Owens is also a partner at Loevy & Loevy, a civil rights law firm that has represented clients in a number of media-heavy cases, including the shooting of Laquan McDonald in Chicago and the shooting of MiChance Dunlap-Gittens in King County.

“I’ve been involved in cases that have significant media coverage and it absolutely impacts the way that the case plays out,” Owens said. “In our view, the cities would like to hide misconduct; we’re there to shed light on it, and it’s easier for them to hide in the background when there’s not media on everything that happens. I do think it changes the dynamic.”

In 2023, Pierce County Superior Court Judge Bryan Chushcoff (ret.) presided over a case involving manslaughter and first-degree murder charges against three Tacoma police officers who, in March 2020 arrested and physically restrained 33-year-old Manny Ellis. Ellis died from “hypoxia due to physical restraint.”⁷7 “Jury hears testimony in trial of officers charged in Manuel Ellis’ death,” ABC News, Oct. 5, 2023, https://abcnews.go.com/US/jury-hears-testimony-trial-officers-charged-manuel-ellis/story?id=103719590. When asked whether heavy media attention or public scrutiny affects the role of a judge, Chushcoff said, for him, consistency is king.

“I think if you deviate from how you try to do your job, you’re going to get in trouble …,” Chushcoff said. “Once you start deviating from how you do your job, then one side or the other is going to think you’re motivated by some kind of bias.”

In the case against the three Tacoma officers, the concern of perceived bias was certainly at play. Early on, protesters were demonstrating outside the courthouse, including members of the Black Panthers, juxtaposed with demonstrations by supporters of the three officers. In all, it created a tense atmosphere at times, with allegations of bias lobbed at Chushcoff who was accused of threatening to dismiss the case if the protests continued. “Now, I didn’t say that at all, but they sent that message out there to all their supporters,” he said. In reality, Chushcoff told Bar News that he had discussed with the attorneys and the Ellis family about holding the demonstrations in such a way to prevent the appearance that the demonstrators were intimidating jurors.

To further prevent attempts to sway jurors, or that there was the perception of jurors being intimidated, Chushcoff said he had to increase security; however, he had to be mindful that increased security can send a message about the truth of the charges or heighten the sense of danger to jurors and others in court. Either way, it could risk influencing the outcome of the case.

Chushcoff allowed press in the courtroom but required that they not show the faces of any of the jurors. With more public and media trying to get into the courtroom than it could accommodate, the court also opened a conference room for members of the media and piped in a feed of the day’s events via a cable that was run out the conference room window down to the window of the courtroom in the floor below. The court also provided a live video feed of the trial on its website. Did these measures prevent accusations of bias? Of course not. But that’s not really the point.

“One of the things that I think new judges find hard is that before you’re a judge and you’re a lawyer, you’re concerned about the justice of your client’s situation and justice generally …,” Chushcoff said. “So you as a lawyer, when you become a judge you just think that if I work hard and make all the right decisions and I’m never wrong, which of course is never the case, then people will like me, the lawyers will like me. Wrong.”

Which, again, gets back to the issue of perception.

“The reality is that judges are elected and as much as we want an independent judiciary, there is always concern that media pressure can influence how a judge proceeds on a case, and how the public responds to judicial decisions is really driven by their distorted perception of public safety,” said Ramona Brandes, misdemeanor resource attorney with the Washington Defender Association. “Things get media attention that are sensational—so things with blood, things with violence—so the general public has this perception that crime has run amok and we have liberal judges letting out people left and right, and I have to think that, that has had some sort of impact.” Brandes added, “this general public perception is inaccurate because it is distorted by the more sensational cases the media focuses on, which means the public is not informed as to the whole body of work of the judiciary or a particular judge.”

Is media attention good or bad? The answer is: a little of both. On the one hand, media can put pressure on public institutions that can help a case, such as in a case of police misconduct against a city, Owens said.

“What often happens in police shooting cases is it’s the officer’s narrative that exists …,” Owens said. “We spend so much time in court and in the press battling this narrative that we’re trying to challenge.”

Importantly, it’s not just what the press is saying or what attorneys are saying to the press, but when.

Scott Johnson now works in private defense with Johnson & Orr in Richland but spent the first half of his career as a prosecutor. The rules around media statements are clearly outlined in RPCs 3.1 and 3.8(f) (for more on this, read Mark Fucile’s article, “Making News: Talking with the Media” on page 16), but the first thing the public sees are usually the arrest record or charges from the prosecutor.

“You oftentimes in these cases have to say something, otherwise your client’s buried before you’ve even started …,” Johnson said. “The prosecutor gets to file that probable cause statement listing their version of what happened—there’s no anti-probable cause statement that a defense lawyer files.”

Similarly, Sheri Oertel, felony resource attorney with the Washington Defender Association (WDA), said a lawyer in a high-profile case might be prepping the case while figuring out a media strategy and paying attention to media statements from their opposing counsel all on a much faster timeframe with the public eye watching at all times.

“When the media’s involved you have to really do all those same things but in a much faster process, and when people are working faster, they miss things …,” Oertel said. “You might end up filing a motion for suppression two or three times, instead of once, because you’re getting more misinformation [being spread] all along the way.”

For Oertel, the key with any case—especially a high-profile one—is to slow down and listen to the client, start to finish, without interrupting, and take in their whole story. “If you don’t listen and you’re not acting in some capacity similar to their therapist to discuss case issues with when they’re exasperated and frustrated, which happens with [cases involving] the media all the time, you’re going to miss things. Additional defense issue-spotting often arises again later in the case through these conversations,” she said.

Particularly for someone who frequently has indigent clients, Oertel said heavy media attention is another good reason to ask for help. She recommended that attorneys ask for a second chair early on rather than try to go it alone, noting that the WDA provides resources for defense attorneys to receive help. Media attention increases the pressure, it requires developing a communications strategy in addition to a legal strategy, and it requires keeping tabs on what’s being said in the press.

“Training is some of it, but if you’re in a situation where it’s your first time [with a high-profile case], either try to find that perfect second-chair person, or first-chair person …,” Oertel said. “If not, then it’s really beneficial to have a mentor attorney that you can go to and bounce these things off of.” She added, “Use your network—and it’s not a bad thing to ask for help on those cases. It doesn’t make you look weak; it builds a stronger case, and it helps your client.”

Lawyers as Therapists

Clients need help. High-profile cases take a toll on not just the lawyers working them, but more so the muckraking of a polarizing legal drama often wreaks hell on the mental state of clients at the center of it all. Many find it hard to stay out of online fights. Of the legal professionals interviewed for this article, when asked how many of their clients are able to avoid looking at social media or online comments regarding their cases, the answers varied from saying that about half of clients are able to stay away to saying that pretty much every client looks at what people are saying and is affected by it.

“Media attention turns up the heat on all of those involved,” said Dan Crystal, PsyD, program manager for the WSBA Member Wellness Program. “Unfortunately, in spite of taking on hundreds of clients in one’s career, one is often remembered for their work on one or two high-profile cases. One’s reputation is often shaped by the stories that are spread online about the case, and not necessarily by the decisions one makes to advocate for their client. Every case involves a measure of unpredictability, and high-profile cases only add to the stress that unpredictability can trigger. The pressure involved can lead to overworking the case, anxiety in the courtroom, and insomnia about the scrutiny one is receiving,” Crystal said. “For clients, the infamy of a negative outcome can be haunting. A client in a high-profile case is likely to place huge amounts of pressure on their lawyer, and the lawyer may dread the stain this could have on their career. This may result in second guessing of legal tactics and require the lawyer to hold their client’s hand more throughout the process. Being sure to have an outlet like a therapist to unravel these stressors with can be helpful both for the lawyer and for the client.”

Apart from the legal tactics and the personal toll from stress, there’s also the matter of developing a communications strategy. Either implicitly or explicitly, most clients will look to their lawyer when it comes to a cohesive media strategy. The problem: they don’t really teach media strategy in law school.

“I do think you kind of learn as you go,” said Johnson, the Richland private defense attorney.

Similarly, Brandes said “some of it you learn just by experience. You learn that having your client’s face splashed across the TV screen is detrimental to the case; it’s detrimental to the client. You start learning: ‘How do I prevent that?’”

If you ask an expert, the key to preventing that is preparation.

“Often what gets missed is that preparation component,” said Annie Alley, a partner with the Seattle-based integrated public relations and marketing firm Firmani + Associates. “So an attorney begins working on a case with their client—and for their client—and they’re so laser-focused on getting to the point that they’re going to file a case that they might forget to prepare for public interest and media attention.”

That preparation work can be as simple as jotting down a few sentences that outline the key messages and facts you want the public to glean from your case. When a case seems like it’s going to hit the mainstream attention (the facts are salacious, the case involves a notable public figure, etc.) Alley recommends a four-point plan.

1. Prepare: Take time to outline the key messages of your case so that you and/or your legal team are on the same page about what is notable and what your perspective is on it. “A lawyer would never go into a courtroom cold, so you don’t want to be caught flat footed either when you get a call from a reporter,” Alley said.
2. Digest: It’s important to understand the high-level, universal takeaways from your case. This means taking a step back from the legalese, taking a step back from the courtroom, and thinking about what message is important for the layperson. “Those kinds of topline themes are more important in terms of what reporters are looking at, rather than legal arguments,” Alley said.
3. Confer: In a civil suit, for example, a plaintiff might be approaching you not just for a financial outcome, but because they want to raise awareness about an issue, or prevent the same thing from happening to others. Clients will need further help understanding the journalistic process, particularly deadlines, the flow of an interview, and the need to repeat a key message so it gets picked up, for example. “Build a relationship with [your client] to understand what their goals are,” Alley said.
4. Contain: The more attention on a case, the greater the need to be careful with how much information is shared outside of court filings. “We never want to do anything that’s going to undermine the case,” Alley said.

In some cases, Alley and other attorneys interviewed for this article recommend compiling a written statement for the media. That way, if there’s no time to participate in an interview, or if you don’t feel confident speaking directly with the media, or if you’re worried about key context getting lost, reporters will have something to fall back on that outlines your key messages. Doing so will avoid the dreaded “no comment,” help inform accurate reporting, and ensure your client’s perspective is represented. Finally, once a news cycle has passed, it’s best to let things lie—especially for defense counsel seeking to mitigate the visibility of an issue. According to Alley, “In crisis communications or responsive situations, we have an adage that says do nothing that extends the life of a story.” 

NOTES

1. www.youtube.com/watch?v=VdL_UK41p_s.

2. “Bikini barista coffee stands’ owner missing,” Everett Herald, June 10, 2010, www.heraldnet.com/news/bikini-barista-coffee-stands-owner-missing/.

3. “’Anal Cleft’ Is Actually Easy to Define, City of Everett Argues in Bikini Barista Case,” The Stranger, April 2, 2018, www.thestranger.com/news/2018/04/02/25983148/anal-cleft-is-actually-easy-to-define-city-of-everett-argues-in-bikini-barista-case.

4. “Everett to pay $500K to end legal battle with bikini baristas,” Everett Herald, April 6, 2023, www.heraldnet.com/news/everett-to-pay-500k-to-end-legal-battle-with-bikini-baristas/.

5. Monitor on Psychology, American Psychological Association, “Can we fairly select jury in high-profile cases?” www.apa.org/monitor/2021/06/jn.

6. “The Media, the Jury, and the High-Profile Defendant: A Defense Perspective on the Media Circus,” New York Law School Review, January 2011, https://digitalcommons.nyls.edu/cgi/viewcontent.cgi?article=1627&context=nyls_law_review.

7. “Jury hears testimony in trial of officers charged in Manuel Ellis’ death,” ABC News, Oct. 5, 2023, https://abcnews.go.com/US/jury-hears-testimony-trial-officers-charged-manuel-ellis/story?id=103719590.