Lawyers Must Consider the Court of Public Opinion in Litigation

“Stay in your lane” is generally wise advice. As a legal journalist, I regularly decline invitations to write or to speak about topics that are related to, but distinct from, the law.

Lawyers who fail to consider factors beyond the letter of the law, however, sometimes can disserve their clients. Consider three cases, all from this year.

First, earlier this month, Walt Disney Parks and Resorts had to backtrack after massive public backlash. In February, Disney was sued by the estate of Kanokporn Tangsuan, a Long Island doctor who died from anaphylaxis shortly after dining at a Disney Springs restaurant. The wrongful death complaint alleges Tangsuan was served food that wasn’t allergen-free, even though she and her husband repeatedly requested—and received—assurances that it was.

How did Disney respond? The company’s outside counsel filed a motion to compel arbitration to avoid a public jury trial. The motion was based in part on the fact that Tangsuan’s husband, who filed the suit as representative of her estate, back in 2019 signed up for a free trial of the Disney+ streaming service that contained a mandatory arbitration provision.

After outraged reactions on social media and negative national news coverage, Disney beat a hasty retreat. “At Disney, we strive to put humanity above all other considerations,” the company said in a statement. “As such, we’ve decided to waive our right to arbitration and have the matter proceed in court.”

Second, also this month, UCLA found itself on the receiving end of a harsh rebuke from a federal judge—and resultant bad publicity. In a lawsuit brought by three Jewish students arising out of pro-Palestine protests in the spring, Judge Mark Scarsi of the Central District of California issued a preliminary injunction against the university, writing: “In the year 2024, in the United States of America, in the State of California, in the City of Los Angeles, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. This fact is so unimaginable and so abhorrent to our constitutional guarantee of religious freedom.”

Scarsi prohibited UCLA “from knowingly allowing or facilitating the exclusion of Jewish students from ordinarily available portions of UCLA’s programs, activities, and campus areas.” How did the university respond? In a statement, it complained that the court’s “improper” ruling “would hamstring our ability to respond to events on the ground”—and it appealed the decision.

This made many of us wonder: Why on earth does UCLA need the freedom to “knowingly allow or facilitate the exclusion of Jewish students”? Not surprisingly, UCLA reversed course: It dismissed its appeal, and in an internal announcement, declared that if and when it learns of students being improperly blocked from campus areas or programs, “university officials will act to promptly restore access.”

Third, this past May, American Airlines did an about-face in a high-profile case. Responding to a lawsuit brought on behalf of a 9-year-old girl who allegedly was recorded while using an airplane lavatory, lawyers for the company argued that she “knew or should have known” the bathroom “contained a visible and illuminated recording device,” an iPhone that a rogue flight attendant had secretly placed in the lavatory.

In news that should surprise no one, attempting to victim-blame a 9-year-old girl went over like a lead balloon. American Airlines promptly dropped that defense—along with the outside law firm that made it.

These are just a few recent examples of situations where legal technicalities trumped common sense, but they’re far from unique. Last fall, three university presidents at a congressional hearing gave dry and legalistic answers to questions about antisemitism on their campuses—when, in hindsight, they should have spoken from the heart.

In response to these situations, attorneys understandably might protest: “We’re lawyers, not publicists or politicians. Shouldn’t we try cases in the court of law—and leave the court of public opinion to others?”

But, lawyer jokes aside, attorneys are people too. We possess common sense and empathy. So we should be able to see when not to make certain arguments for prudential reasons, their legal merits notwithstanding.

There’s no ethical bar to looking beyond the strictly legal when representing clients. As Rule 2.1 of the ABA Model Rules of Professional Conduct makes clear, “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”

In sum, the legal profession needs to return to what Anthony Kronman, former dean of Yale Law School, called the ideal of the lawyer-statesperson. As he wrote in his 1993 book, “The Lost Lawyer,” an “outstanding lawyer—the one who serves as a model for the rest—is not simply an accomplished technician, but a person of prudence or practical wisdom as well.”

David Lat, a lawyer turned writer, publishes Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is author of the novel “Supreme Ambitions.”

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