“No Comment” Is Still a Comment

A Better Framework for Communicating During Litigation

For decades, organizations facing litigation or a criminal investigation have relied on two familiar phrases: “No comment” and “We look forward to our day in court.” Attorneys are cautious for good reasons. Protecting a client’s legal position, preserving the integrity of a proceeding, and complying with professional rules of conduct are non-negotiable.

The problem is that the court of public opinion does not wait for the court of law.

By the time a case reaches a courtroom, the public may have spent months or years watching news coverage, seeing social media posts, and hearing statements from opposing parties, as well as public records, commentary, and speculation. Silence doesn’t stop the story from taking hold; it just means someone else is defining the narrative.

Balancing the seemingly contradictory goals of legal strategy and public reaction is at the center of “Shifting Public Perception and Eliminating the Dreaded ‘No Comment’,” recently published in Volume 95, Issue 1 of the Mississippi Law Journal, co-authored by Melanie Reid, Professor of Law at Lincoln Memorial University-Duncan School of Law, and Dr. Eric Kowalczyk, Founder + CEO at Connection Point.

A Daunting Question

How can attorneys and organizations communicate beyond a “no comment” during litigation without compromising sound legal strategy or the Rules of Professional Conduct?

Professional Conduct 3.6 places important limits on what attorneys involved in litigation may say publicly. Those restrictions exist for good reason: lawyers possess privileged access to information, their statements carry unusual authority, and public comments can threaten the fairness of judicial proceedings.

Critically, as the article demonstrates, Rule 3.6 does not require silence. Among other things, Rule 3.6(b) permits attorneys to discuss the claim, offense, or defense involved; information contained in the public record; the existence of an investigation; and certain procedural developments. Rule 3.6(c) also provides attorneys room to respond when recent publicity creates substantial undue prejudice against a client.

This rule creates a space between saying everything and saying nothing. The challenge is knowing what to do with it.

The objective isn’t to try the case through the media. It is to communicate within the permissible factual and ethical boundaries while recognizing something communications professionals have long understood: people form perceptions whether you participate in that process or not.

The article examines that dynamic through Depp v. Heard, United States v. Avenatti, and United States v. Kelly, asking in each instance how different communications choices might have affected the public narrative surrounding the case. But the framework isn’t limited to celebrity litigation.

Municipal Use 

Imagine a municipality confronting allegations of serious employee misconduct while an outside investigation remains underway. The easiest response is familiar: “Because this matter remains under investigation, the City cannot comment.” While legally cautious, this type of response leaves open an entire field of speculation, innuendo, and perception-forming doubt.

The article’s methodology provides a pathway from “What can’t we say?” to “What can we responsibly say?” A municipality may be able to acknowledge the seriousness of the allegations and the community’s legitimate concerns, explain the independent investigative or review process already underway, and establish the boundaries that will govern its response: accountability, investigative integrity, transparency where legally permissible, and institutional improvement as required.

Connection Point has applied that underlying approach in municipal environments where investigations, litigation exposure, public records requirements, political realities, operational needs, and public trust exist simultaneously. The point isn’t to disclose more. It’s to communicate more effectively with what can appropriately be disclosed.

What You Say Today Matters Tomorrow

While a courtroom and the court of public opinion operate under different rules, they increasingly share the same information environment. Legal strategy cannot ignore that reality. Nor can communication strategy ignore the ethical and constitutional obligations that govern legal proceedings.

The answer is in not choosing one over the other. It’s learning to operate responsibly in both.

To learn more about Connection Point and how we can help your legal team navigate the intersection of legal strategy and public communication, please visit: teamcp.co/services