rules-of-court litigation any-jurisdiction
Is there a legal reason that organizations often refuse to comment on an issue citing &quot;ongoing litigation&quot;?
<p>In news articles, I often read that some organization refused to comment on an issue because it is the <strong>subject of &quot;ongoing litigation&quot;</strong>. This is also mentioned in many guides on public relations, for example this article, <a href="https://www.pushkinpr.com/blog/how-control-your-message-during-media-interview/" rel="noreferrer">How to Control Your Message During a Media Interview</a>, says:</p>
<blockquote>
<p>If there are legal reasons why you can’t respond,  explain that you
are unable to answer the question because it involves ongoing
litigation or personal information about a patient.</p>
</blockquote>
<p>But what is that legal reason? Why would an organization not be able to state their position with respect to the issue, such as &quot;We believe we acted correctly, but this will be decided in court&quot;?</p>
<p>Is there a law saying that commenting a court case is illegal? Who does this apply to? Or is this just some guideline or established advice to avoid problems (which ones)?</p>
<hr />
<p>I'm most interested in answers about the US or Germany, but other jurisdictions are fine.</p>

<p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<blockquote>
<p>But what is that legal reason? Why would an organization not be able
to state their position with respect to the issue, such as &quot;We believe
we acted correctly, but this will be decided in court&quot;?</p>
<p>Is there a law saying that commenting a court case is illegal? Who
does this apply to? Or is this just some guideline or established
advice to avoid problems (which ones)?</p>
</blockquote>
<p><strong>Legal Ethics Considerations</strong></p>
<p>There are circumstances when commenting publicly on litigation violates the ethical rules for lawyers related to trial publicity <em>See</em> Rule of Professional Conduct 3.6 (the numbering system for professional conduct rules for lawyers is uniform nationally in the U.S. although the substance of the rules can differ in detail from state to state - <a href="https://www.cobar.org/For-Members/Opinions-Rules-Statutes/Rules-of-Professional-Conduct/Rule-36-Trial-Publicity" rel="nofollow noreferrer">Colorado's rule</a> is fairly typical). Mostly this rule calls for avoiding statements that could prejudice a jury unless the other side has already done so and those statements need to be rebutted. This rule states (in its Colorado version):</p>
<blockquote>
<p>(a) A lawyer who is participating or has participated in the
investigation or litigation of a matter shall not make an
extrajudicial statement that the lawyer knows or reasonably should
know will be disseminated by means of public communication and will
have a substantial likelihood of materially prejudicing an
adjudicative proceeding in the matter.</p>
<p>(b) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may state:</p>
<p>(1) the claim, offense or defense involved and, except when prohibited
by law, the identity of the persons involved;</p>
<p>(2) information contained in a public record;</p>
<p>(3) that an investigation of a matter is in progress;</p>
<p>(4) the scheduling or result of any step in litigation;</p>
<p>(5) a request for assistance in obtaining evidence and information
necessary thereto;</p>
<p>(6) a warning of danger concerning the behavior of a person involved,
when there is reason to believe that there exists the likelihood of
substantial harm to an individual or to the public interest; and</p>
<p>(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the
accused; (ii) if the accused has not been apprehended, information
necessary to aid in apprehension of that person;(iii) the fact, time
and place of arrest; and (iv) the identity of investigating and
arresting officers or agencies and the length of the investigation.</p>
<p>(c) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may make a
statement that a reasonable lawyer would believe is required to
protect a client from the substantial undue prejudicial effect of
recent publicity not initiated by the lawyer or the lawyer's client. A
statement made pursuant to this paragraph shall be limited to such
information as is necessary to mitigate the recent adverse publicity.</p>
<p>(d) No lawyer associated in a firm or government agency with a lawyer
subject to paragraph (a) shall make a statement prohibited by
paragraph (a).</p>
</blockquote>
<p>Statements such as &quot;We believe we acted correctly, but this will be decided in court&quot; are allowed and are not terribly uncommon. But, making a comment about something that can be easily inferred from the publicly available documents filed in court provides little or no positive advantage for a litigant.</p>
<p>Also, one doesn't have to say much to create at least a colorable Rule of Professional Conduct 3.6 issue that a mediator can raise in settlement talks, or that a judge can be forced to analyze. Even if the claim of unethical trial publicity ultimately doesn't hold water, it still muddies the waters and distracts lawyers and litigants from dealing with the substance of the dispute.</p>
<p><strong>The Risk That A Statement Will Be Used Against You</strong></p>
<p>Usually, the main concern is similar to the concern about talking to police: Anything you say can and will be used against you at trial.</p>
<p>For example, this week former President Trump's <a href="https://www.cnn.com/2023/05/31/politics/trump-tape-classified-document-iran-milley/index.html" rel="nofollow noreferrer">public statement about his knowledge of classified documents</a>, which are the subject of an ongoing federal criminal investigation of him, seriously harmed his position legally. (His statement was made quite a while ago in a semi-private forum, but at a time when the possibility of a criminal investigation still should have been on his radar screen.)</p>
<p>In the civil rape-defamation case against him (as noted, for example, in <a href="https://law.stackexchange.com/a/92362/9517">this Law.SE answer</a>), Trump's decision to continue to speak publicly about matters that were the subject of active litigation against him in an earlier case resulted in an extended statute of limitations and an opportunity to refile the case without having to worry about Presidential immunity from liability for statements he made while in office.</p>
<p>It isn't just former President Trump that does things like this, but his conduct provides good textbook examples of what lawyers worry about when their clients talk about cases that are being litigated.</p>
<p>Social media statements about pending cases by litigants <a href="https://www.forbes.com/sites/andrewarnold/2018/12/30/heres-how-social-media-can-be-used-against-you-in-court/?sh=38a9dd946344" rel="nofollow noreferrer">routinely provide powerful evidence against them</a> in trials.</p>
<p>Some clients (particularly politicians and many senior executives of big and medium sized businesses, but also more ordinary people with big egos) are &quot;forces of nature&quot; who can't resist running their mouths, usually to their detriment, when given the least leave to do so. It is easier to teach them to say &quot;no comment&quot; across the board about pending litigation, than to transmit the depth of understanding necessary to comment without saying something potentially harmful. Lawyers spend many hours and sometimes days preparing their clients for depositions for a reason.</p>
<p><strong>Avoiding Annoyance To Opposing Counsel, Parties, And Judges</strong></p>
<p>Making a comment about pending litigation has the potential to aggravate opposing counsel and can emotionally influence non-lawyer opposing parties with whom a negotiated settlement will be reached 90%+ of the time (only about 1-2% of civil cases go to trial, but some are resolved by default judgments or on motion practice as opposed to by settlement).</p>
<p>It can also irritate a judge who frequently prefers to be out of the public spotlight when necessary, even when the statements made aren't prohibited, and judges in the U.S. have lots of discretionary authority.</p>

<p><a href="/questions/tagged/common-law" class="post-tag" title="show questions tagged &#39;common-law&#39;" aria-label="show questions tagged &#39;common-law&#39;" rel="tag" aria-labelledby="tag-common-law-tooltip-container">common-law</a></p>
<p>Yes, the legal reason is called <a href="https://en.wikipedia.org/wiki/Sub_judice" rel="noreferrer">sub judice</a>.</p>
<p>The US seems to be less bothered about it due to the First Amendment, but in the rest of the common law world (UK/CA/AU/NZ etc.) publicly commenting about specifics of an ongoing litigation may be <a href="https://en.wikipedia.org/wiki/Contempt_of_court" rel="noreferrer">contempt of court</a>.</p>
<p>The general idea is that the jury may be influenced by what the media says, and that will interfere with a fair hearing/trial. The jury is supposed to make decisions only on what they hear/see in the courtroom.</p>
<p>Where the case is decided by judges only (i.e. <a href="https://en.wikipedia.org/wiki/Bench_trial" rel="noreferrer">bench</a>/judge-alone trials), in theory it should not be a problem to herald the hell of it in the media because judges are paid for their ability to withstand side influences and make decisions only on what is adduced before them. But people/organizations prefer to err on the side of caution and so see it wise to refuse to comment anyway.</p>

<h2>It can be a bad idea in <a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a></h2>
<p>While it is not illegal to speak about the own ongoing litigation, talking about it can be very ill-advised:</p>
<ul>
<li>News articles are usually not admissible as evidence in court (unless to prove a statement <em>was made</em>)</li>
<li>There are no jurors that could be swayed, and Schöffen discuss the whole case with the professional judge(s) when they join them on the bench.</li>
<li>By claiming a position to the press, which the court deems wrong, an injured party by those statements can sue for various forms of defamation (Beleidigung <a href="https://www.gesetze-im-internet.de/stgb/__185.html" rel="nofollow noreferrer">§185 StGB</a>, Üble Nachrede <a href="https://www.gesetze-im-internet.de/stgb/__186.html" rel="nofollow noreferrer">§186 StGB</a>, Verleumdung <a href="https://www.gesetze-im-internet.de/stgb/__187.html" rel="nofollow noreferrer">§187 StGB</a>, Verleumdung gegen Personen des öffentlichen Lebens <a href="https://www.gesetze-im-internet.de/stgb/__188.html" rel="nofollow noreferrer">§188 StGB</a>, Verunglimpfichung Verstorbener <a href="https://www.gesetze-im-internet.de/stgb/__189.html" rel="nofollow noreferrer">§189 StGB</a>) and is nigh guaranteed to win due to the law on Truth by Judgment under <a href="https://www.gesetze-im-internet.de/stgb/__190.html" rel="nofollow noreferrer">§190 StGB</a>.
<ul>
<li>Example: Alice claims to the press that Bob murdered Charleene. The court finds Bob not guilty. Alice will now be found guilty under <a href="https://www.gesetze-im-internet.de/stgb/__187.html" rel="nofollow noreferrer">§187</a> &amp; <a href="https://www.gesetze-im-internet.de/stgb/__190.html" rel="nofollow noreferrer">§190 StGB</a> - A court's judgment automatically becomes <em>the truth</em>, and if revised or appealed the truth changes accordingly.</li>
<li>Germans are <em>very</em> litigious in this field: the various forms of defamation fill as4% of all German lawsuits filed by private citizens.</li>
</ul>
</li>
</ul>
<h2>In the <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a>, Judges are prohibited from talking about ongoing cases on their desk</h2>
<p>As discussed <a href="https://law.stackexchange.com/questions/36403/why-was-judge-jacksons-ruling-in-doj-vs-microsoft-overturned-in-the-anti-trust-h/55981#55981">here</a> pertaining the successful appeal in United States v. Microsoft Corporation, 253 F.3d 34 (D.C. Cir. 2001) we have a specific point when, a judge talking about a case that is not yet decided and on their desk can lead to a successful appeal of the judgment. The point here is, that judges need to follow the <a href="https://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges" rel="nofollow noreferrer">code of judicial conduct</a>, which demands that a judge may not talk about an ongoing case <strong>in any way or fashion</strong>:</p>
<blockquote>
<p>(6) <strong>A judge should not make public comment on the merits of a matter pending or impending in any court.</strong> A judge should require similar restraint by court personnel subject to the judge’s direction and control. The prohibition on public comment on the merits does not extend to public statements made in the course of the judge’s official duties, to explanations of court procedures, or to scholarly presentations made for purposes of legal education.</p>
</blockquote>
<h2>Similarly, lawyers in the <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a> shouldn't</h2>
<p>The lawers are similarly bound to their state bar's code of conduct, which often mirror the <a href="https://en.wikipedia.org/wiki/American_Bar_Association_Model_Rules_of_Professional_Conduct" rel="nofollow noreferrer">Model Rules of Professional Conduct</a>. More on that in <a href="https://law.stackexchange.com/a/92855/10334">Ohwilleke's excellent answer</a></p>

<h2>Can't help, might hurt</h2>
<p>You're just giving ammo to the opposition.</p>
<p>First, they can cite what you said directly, right in court.  If you have anyone public-facing with &quot;foot in mouth disease&quot;, that can set you back badly.  It can also hurt your credibility if the jury perceives those statements as unbelievable or insensitive.   Nobody likes a liar.  Best way to avoid that problem is for those statements <em>to not exist</em>.</p>
<p>Second, in a social media age, it can backfire. If you say &quot;There has never been any methyl amine in the building&quot; <em>inevitably, that will get spread around social media</em>, and it WILL reach the ears of some random guy who did, in fact, special-order methyl amine from you 18 years ago and has the receipts to prove it.  <strong>And now the opposition has something they didn't have before</strong>.</p>
<p>It also makes it harder to stop (quash) an opponent from exploring an area of interest, if you yourself raised that area of interest in the media.</p>
<p>You're not going to win any hearts and minds with denials.  There's no extreme level of urgency or firmness that makes a denial more believable; if anything, the opposite. So you're better off not bothering. If you're the kind of company that has fans, let the fans fight the good fight in the media for you.</p>

<p>Even if you are right, court proceedings are still expensive, strenuous, and time-consuming. So, it is common in court cases involving organizations or corporations that they end without a judgement, for example through a settlement agreement between the parties.</p>
<p>Such a settlement agreement often stipulates that neither party was at fault, but it is somewhat hard to reach such an agreement if you have already made public statements claiming the opposite.</p>
<p>As an example why corporations would want to settle, consider the Oracle v. Google case where there <em>wasn't</em> a settlement. It took 12 years, and in the end, Google won, but it won in a manner which didn't actually answer the most important question. So, this was all a giant waste of money and time for all involved parties, including Google, Oracle, and the Supreme Court.</p>
<p>Oracle wanted to prevent Google from distributing Android, but they lost. Google wanted the courts to decide, once and for all, whether interface descriptions are copyrightable, but the courts side-stepped that question. So, in the end, nobody got what they wanted. And the Supreme Court wasted time trying to wiggle themselves out of the question.</p>
