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By Levick Strategic Communications
Perhaps more than with any case of this type, media coverage of the first Vioxx trial focused on the quality of legal advocacy provided Merck.
It is a sign of the times, and a portent of things to come, when newspapers render judgment on trial strategies and case management. As a genus of news story, litigation is just getting broader and deeper.
A new study by CARMA International, a leading media researcher, was conducted exclusively for Levick Strategic Communications to determine what the mainstream media had to say about the lawyers in Ernst v. Merck.
The data shows that mainstream media – not just the professional press – are increasingly interested in how outside counsel defend corporations. More than with the tobacco wars, or sundry other corporate cases in the recent past, reporters are focusing on trial counsel in a way usually reserved for O.J. Simpson’s lawyers or Martha Stewart’s.
Second, it shows that media judgments on Merck’s attorney performance, while relatively even-handed in some ways, were almost uniformly negative.
CARMA International researched 76 stories appearing in major consumer and business media outlets around the country. (See below for the list of media outlets scrutinized.)
The harsh jury verdict may have pre-conditioned the media to fault the defense, but it is significant that the media criticism was also fairly specific. In particular, the failure of the Merck lawyers to break down scientific material into comprehensible form was the second-most dominant overall message about their handling of the case.
CARMA used a standard measuring technique to evaluate relatively positive and negative media depictions of lawyer performance. Criticism appeared from legal analysts, journalists, and the jurors themselves.
The positive messages were largely due to comments from Merck officials and attorneys themselves. There was additional positive data for Merck as several op-eds and editorials were highly critical of the verdict and questioned some of the judge's decisions allowing adverse testimony. (See the Washington Post editorial in this issue of Next Alert.)
Most disconcerting for Merck, perhaps, the CARMA research matrix included the message that Merck’s legal team “did a good job during the trial.” CARMA could not find a single example of this message in the media researched. A dominant theme in the coverage was that Merck's attorneys were too stiff and uncaring.
By contrast, plaintiff’s counsel Mark Lanier played to the sympathies of jurors, basing his strategy and approach on available knowledge of the jurors. Some coverage went into greater detail about Lanier’s use of a “shadow jury” that demographically matched the actual jury. Journalists were impressed that this shadow jury sat through the entire case and was used as a sounding board throughout the trial. (The shadow jury was not told who hired them.)
Reports also explained how Lanier used a lawyer/psychologist to monitor the reactions of the actual jurors during the trial. Several stories mentioned how Lanier designed his closing argument on feedback from the shadow jury as well as input from the psychologist. As a result, he repeatedly emphasized during closing argument that the evidence only had to show a 51% likelihood that Merck was liable. Jurors specifically mentioned this 51% threshold in their comments following the verdict.
It should be of signal interest to trial lawyers that effective use of such outside consultants plays well in the court of public opinion as well as in courts of law.
Media List for Ernst v. Vioxx Research
ABC News
Arizona Republic
Boston Globe
BusinessWeek
CBS News
Chicago Sun-Times
Chicago Tribune
Cleveland Plain Dealer
CNN
Daily News (NY)
Dallas Morning News
Forbes
Fortune
Houston Chronicle
Los Angeles Times
NBC News
New York Post
New York Times
Newsday
Newshour with Jim Lehrer
Newsweek
San Francisco Chronicle
Time
US News & World Report
USA Today
Wall Street Journal
Washington Post
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