Ray’s Hot Takes | Vol 4

This transcript of Raising the Bar with RebuttalPR was generated using AI transcription and lightly edited for readability. It may contain errors, and speaker labels are approximate. The audio recording is the authoritative version.

Welcome to Raising the Bar with RebuttalPR, the podcast where we elevate the stories of the plaintiffs bar and dive into the key trends shaping the civil justice system today. I'm your host, Ray DeLorenzi, and in each episode, we'll bring you insightful interviews with leading attorneys, expert perspectives on current legal events, and in-depth discussions on the issues that matter most. Now, let's jump in.

Ray: Hey, everyone, welcome to a new episode of Raising the Bar with RebuttalPR. I'm your host, Ray DeLorenzi. We're turning the tables for another Hot Takes episode. My friend and colleague, Hannah Gallagher, is here. She has some questions that she has not run by me that she's going to pepper me with. Things we often hear from listeners, clients, and who knows where else, from wherever Hannah captured them. And yeah, anyway, I'm glad to have you here again, Hannah. Thanks so much.

Hannah: Thanks. Yeah, thanks for having me back. Glad this has gone well in the past, so I have returned.

Ray: Hannah's in a new apartment, for those watching the video, and you need some artwork. Like, definitely. Really, it looks like a CIA black site.

Hannah: Yes, a little jail cell-ish right now, but it's a work in progress.

Ray: All right. Well, let's do this, Hannah. Hit me. What do you got?

Hannah: Yeah, so in the past, we've talked a lot about major moments in a case that you find media interesting, or that are important public relations moments throughout a case. Maybe you can reiterate a few of those major moments to us, because then I want to talk about trial comms and what we do when we get to trial when that happens. So maybe reiterate a bit of the major moments you find important in a case.

Ray: Yeah. Look, not every case is the same, and it's not one size fits all. But what's important? If you think about the word news, what is new? It has to have some novelty to it. And look, the beginnings and the ends of a case are always, not always, but typically newsworthy. The filing of a complaint and the resolution, whether that is a verdict or settlement. But that does not mean that those are necessarily the most important components from a news perspective.

There are plenty of inflection points throughout a litigation that are of interest to news media. And again, it depends on what it is and what type of news outlet. It doesn't mean it's going to be in the New York Times, it could be in a legal trade, but that doesn't mean it's any less important depending on what type of audience you're trying to reach. For example, you have a summary judgment motion that has a bunch of documents that were obtained through discovery that are becoming public for the first time. That could be really newsworthy. Interestingly, you could have a defendant filing a motion to dismiss, and that could be newsworthy and something you want to get out there because perhaps they make a really stilted or uncomfortable statement that they think is just going to be in a court filing and no one's going to see it. And that could have a lot of news value as well. I mean, you also have lawyers playing lawyer tricks that could lead to sanctions, or the judge slapping them on the wrist. That could have newsworthy elements. So those are just a few examples.

And another thing to also think about is the jurisdiction the case is in. In a place like the Northern District of California, those types of cases, status conferences draw media attention. A district that may be in a more rural area, that may be more difficult. But these are things that we think about when we're managing media on a litigation, because we know the corporate defendants are thinking about how they are going to minimize not just their legal exposure, but their exposure to public scrutiny on these things.

Hannah: Yeah, that makes a lot of sense. So recently, I was a part of a team prepping for a trial, and a big trial. We had a lot of plans, and then it ended up settling, which I know about, I think the actual percent is two to five percent of civil cases actually go to trial. So not a lot. But we always prepare, we have a trial strategy ready. I just want to talk a little bit about why that part is different. I know it's only two to five percent of the cases, but still good to get ready for that. Can you talk a little bit about the difference between your pre-trial strategy versus once you actually get to trial, and what people should be thinking about as they approach trial, if it's going to happen?

Ray: Yeah, and the types of cases that we work on, which are big cases typically, right? They often, again, not every case, but oftentimes they bring in a ringer, another trial lawyer that's going to focus on trying that case. And they are preparing to go the distance. And sometimes at the eleventh hour, they get that call and it's like, hey, we settled it, you're not trying this case any longer. I'm sure that there is some disappointment, but also it's what's in the best interest of the client, because trials are risky. You're not always going to win them, and things can happen.

When we're working on a trial, again, it's just not one size fits all. You have some trials where openings are going to be a big moment, and closings, and everything in between may not be that newsworthy. It just really depends. Sometimes you have a case where there's going to be a key witness that has to testify in person, which is becoming rarer and rarer. Oftentimes it's videotaped testimony. But those big moments, yeah, you're going to have news coverage there. And as I mentioned before, it depends on the venue. If it's in a major metropolitan area, it's easier to get news outlets to show up in person. Federal court trials, typically there's some sort of pilot process, but they're not going to be broadcast or streamed in any way. State court cases, there's Courtroom View Network, I think it's called CVN. They stream a lot of state court stuff, so then reporters can just be at home watching this stuff and writing on it. That's an interesting added element.

So we prepare for trials all the time, but the way a lot of these cases now unfold pre-trial and during litigation, oftentimes there aren't too many surprises during the trial. It's really about the witnesses, who's going to have to testify. And there is a theater to it, a theatric to it. But you also said it up front, I think five percent is probably too high an estimate. I mean, we're looking at one percent or less that go to trial, and that doesn't count a lot of smaller stuff that goes to trial that isn't newsworthy at all. So to see a big case go to trial these days is rare, but rarity also equals news value. The worst thing you could do is just go into trial blind and let the chips fall where they may. The last thing I'll say, which I probably should have said first, when it comes to trial media strategy, is the first rule is do no harm. The goal is not to get media coverage of the case. The goal is to win the case. And you want to prevent the corporate defendant from doing things that are going to try to tilt the scales in their favor. So whatever you can do to minimize their advantage, I think is really important.

Hannah: Yeah. You mentioned some federal courts. Federal courts historically have not allowed any cameras in the courtroom. The Northern District of California has a pilot program to consider cameras in the courtroom. Do you have a feeling about cameras in the courtroom? What do you think? I know the judge I'm following, she believes strongly in public access to the court. I think that there's a risk to also having cameras in the court, and maybe also, depending on the plaintiff, the comfort level of being on camera while you're testifying or your case is being laid out. How do you feel about videos coming out of trial, the usefulness of that?

Ray: Look, I'm a big First Amendment, public access sort of person. The fact that with PACER you have to pay for legal filings, I find to be absurd. This stuff goes back decades. I mean, the U.S. Supreme Court's still not videotaped. And I don't quite understand the arguments. I think there are restrictions that the court could put in place so it is not like a complete spectacle. I don't think you want TikTokers doing live streams while a trial is in progress. But I think people should have access to this key information that's happening, and the technology is there.

Look, there are concerns about, let's say it's involving an abuse case with a minor. CVN, Courtroom View Network, they work with courts all the time to prevent showing the faces of people who need to be protected. So I think these are all things that can be worked around. The big issue I have is there just needs to be some certainty. They've been doing this pilot project in the Northern District of California. I've seen it and they have a Zoom link, and the Zoom link gets capped out at 100 people. And in these big cases, you have to be on 20 minutes beforehand and then you're blocked. It's 2026. Like, come on. So again, this is outside of my area, I guess. I should stay in my lane. I don't work for the court system, and I know there's compelling arguments both ways, but I think public access is always better and just refreshing.

Hannah: Yeah, I agree. Who wants to make the less transparency argument? Does anyone want to do that? No, I don't want to do that. Yeah, no, I get it. Sometimes I understand. I mean, we talked about before a trial generally, and I think the general posture is to not engage with media, and then take it a step further. Having cameras film you while you're in court could be intimidating, but also for the plaintiff side, maybe helpful. I think people understand what's going on, and generally our stance is we want people to know what's going on in the world, and therefore having more information out there is a good thing. But I can see both sides, and judges too can be very sensitive.

That was going to be my next question. I think the audience a lot of the time that the attorneys are worried about when a trial starts, or even before a trial starts, is the judge, and the judge being offended that they're talking about the case in the media. How do you toe the line of getting the information out there that is needed, but also respecting the judge and respecting the procedure that they put forward?

Ray: Yeah. I mentioned before, the first rule is do no harm. And we never advise our clients, on the eve of or during trial, to be chirping with the press. I think it's an extremely bad idea. The judge is going to call it straight, but you're doing yourself a disservice, and you're doing your client a disservice, by doing something that's going to potentially anger the judge.

Now, that does not mean you can't be engaging with the media. You just don't need to be doing interviews on the record. If there is a public filing, emailing that to a reporter, a transcript, key documents that were shown, giving a reporter a heads up about what the schedule may be over the coming weeks in a non-interview format, is completely appropriate. And again, you can bet your bottom dollar that corporate defendants are doing the same thing with reporters, backgrounding them ahead of trial. Again, not doing it on the record, because they are wise enough to know that it's only going to anger the judge. So there are a lot of degrees on the spectrum of what you can do to be engaging with media that don't involve doing an on-the-record interview, which I typically believe is a very bad idea.

Hannah: Yeah, no, that makes sense. Okay, well, so that's through kind of trial. I guess once we get towards the end of a trial, say a verdict is coming. What kind of preparation should attorneys, plaintiff attorneys in particular, make towards the end of trial when a verdict is coming and they know it's going to be a big day, in the good or the bad? What kind of things should attorneys be looking to plan or do?

Ray: We often work with lawyers and we prepare a statement like, hey, this is a statement if you win and here's a statement if you lose, and 100 percent of the time they don't even look at them, because it's just superstition. Every case is going to be different. What I think is really important to appreciate: yes, okay, let's say you get a big verdict and it's a great outcome for your client. It is not over. There is going to be an appeal, and I think you have to be really cautious of what you do in the aftermath, making sure you're not giving more ammunition to the defendant in an eventual appeal.

So again, it depends on what the case is, depends on where it is in the litigation. Is it like an MDL that ends at the first bellwether? Is it in a big MDL and it's a tenth bellwether? Is it a one-off single event case? A lot of different things are in the mix there that go into the soup and into the calculus of how you want to approach it. Again, if you win, you don't need to hold a parade. You won the case. And I do think you want to project confidence, particularly if there are other cases that are coming behind it. But I think people who spike the football do so at their own peril. And look, if you lose, I kind of think the media is the least of your worries. Again, if it's a bellwether situation, I think you can do things to sort of differentiate that case from other cases that may be occurring. But the lawyers we work with want to win. And so they don't even want to think about the loss scenario. And again, trials are unpredictable, so you need to plan for that unpredictability in some ways.

Hannah: Yeah. So I'm kind of taking us through the whole trial process, and I think part of our job is to think of worst case scenarios, and what happens when there's a really bad headline or something bad happens in trial and we need to jump on it, fast response. At the end, one narrative we see a lot is: it's a nuclear verdict, the most defense-created tagline I've ever heard. Can you just speak to how you speak about your result in a way that is helpful to the future of the plaintiff bar and also to your client, so that they're not just getting that nuclear verdict sentiment thrown at them after they win a case?

Ray: Part of what's been occurring is you're seeing defendants get more aggressive in running to legislators to get verdicts overturned, or in the event of an adverse outcome, to cut off the litigation from a legislative standpoint. And legislators are people too. If they're hearing from their constituent, which is a business, saying, we're going to shut down this factory, we're going to lay off jobs, let's put aside that they're usually full of crap, but legislators are going to listen to that. That's why it's very important for lawyers not to be putting themselves front and center, and also to discuss the person whose case they just litigated. That mother who is now taking care of a child who's going to need a lifetime of care, or a loved one who was killed because of unsafe practices. And we know in these cases, it's never just a one-off. It's usually an unsafe practice that's been going on for a very long time. Telling the stories of your clients is what we do best, and it's important to us because the future of the civil justice system is important to us. And again, the lawyers we work with know the stakes. They know that in succeeding for their client, there are spillover effects that need to be managed.

I think it's really important, as part of especially big litigations these days, they're really a three-legged stool. You have the legal side, what's happening in the courtroom. Two is the media side. And three is the legislative and regulatory side, more so than ever. Again, you're just seeing defendants more and more running to state legislators, running to Congress, running to regulatory agencies. And I think the best way we have found to fight back on that is, one, transparency. Show what these corporations are doing, peeling back lobbying registrations, peeling back minutes of meetings they're having with regulatory agencies, and again, showcasing the people behind the cases who lawyers are actually fighting for.

Hannah: Yeah. The legislative piece can be a big threat that people don't look at right away, and I think that needs to be quickly thought about from all different angles, because there are legislators who are going to oppose the plaintiff bar no matter what. So you have to be able to tell the stories of the people and really use the public sentiment to your favor.

One subject, maybe we can talk through a bit of an example. Last time we talked about AI use in PR.

Ray: More AI.

Hannah: No, but it's going to be a fun version. So, we talked about AI use in PR. Now I think there are lots of new AI legal cases popping up. It's a new trend, maybe trend is a bad word, but with the social media victory recently and these AI tools just exploding everywhere, there's an OpenAI case now. Anthropic had a copyright settlement. Grok is seeing a lot of CSAM-related suits. Do you think that this is going to be a big type of civil litigation going forward? And do you think that these companies are reactive to this sort of case? And if so, how do you get to them? Maybe it's through media, but what do you think the strategy is from our media perspective to tell the stories that are AI harm related?

Ray: You know, I have no idea if this is going to be a large mass tort. I just don't know. And again, that's a little bit too outside of my lane. Here's what I think the plaintiffs probably need to be thinking about. These companies are going to want immunity. They want it now, and they are not going to stop. And this is going to be a very, very big problem. What they are going to say is: this is about American competitiveness. And if we don't get immunity, Chinese LLM makers are going to beat us to the punch. And I think that is ridiculous. I think companies can make great products and be competitive in America because we have a spirit of capitalism and competitiveness over centuries that has borne that out. They don't need immunity in the process.

And they want immunity on so many fronts. One is regarding, I'm going to call it health advice that these robots are giving that are driving people to make really awful choices and decisions. And choices and decisions isn't even the right word, but it's driving them to commit suicide. And again, these companies should be held accountable for it. But they're also going to want, they've been stealing just everyone's information. People write books, and they just stole it. They've stolen all of it. And they've paid some copyright settlements. I mean, they're going to want immunity forever to just steal people's stuff. And again, that's outside of the work we do, outside of the typical plaintiff-side work, but this is going to be a massive legislative battle.

And it doesn't fall across party lines the way a lot of these tort issues do. You have some Silicon Valley Democrats who are big on tech, big on crypto, that sort of stuff. They're willing to support AI companies. You have a lot of people who have a complete allergy to AI because they believe, and not without reason, their jobs are in jeopardy, data centers are just popping up everywhere, stealing power. And anyway, a lot of issues there. So again, is it going to be a major litigation? I don't know. And we don't know yet how a jury's going to react to that sort of thing. What we do know is that these companies don't care to really put in any safeguards. And they believe that they're essentially above the law. I think that is the area to watch right now, because they're going to try to prevent a litigation from even getting off the ground. And look, there are debates in Congress right now about policing social media companies, and these companies aren't just watching that, they are trying to get themselves inserted into it in a way that would preempt state law and give themselves immunity. So, a space to watch.

Hannah: Yeah, definitely. I guess with the social media stuff, maybe this is a question of, do you have any great ideas on how? I think in the past, plaintiff side cases have focused on a drug maker, a device, a very concrete thing that we can see and we can put a plaintiff on TV or whatever it is to show their injury physically. And now these are a bit more abstract, where it's hard to show the injury, it's hard to explain depression and suicide, it's hard to explain the thought process you went through when you were typing into an AI chat box. Any thoughts on how those stories can be told better? I don't know, media platform or other ways that we can tell those more clearly?

Ray: Yeah, look, we're not there as a society yet, but I think over the last probably ten years or so, there has just been a greater public understanding that psychological harm is just as severe, or could be more severe, than any physical harm. Let's say someone is in a car accident and they lose an arm, lose a leg. Yes, you can see that. So it's easy for someone to sort of capture what that means in someone's life. But to say someone is suffering from depression so severe that they can't function on a day-to-day basis, not so many years ago people would be like, suck it up and get out of bed and go live your life.

I think now there is a deeper appreciation, especially amongst younger people, that these are real injuries. Someone who has suicidal ideation, someone who has severe depression. And again, this has happened through a lot of different avenues, and it wasn't just one thing. You've had, for example, a bunch of professional athletes who have come forward and who have essentially had to take leaves of absence for drug and alcohol abuse, for depression. And I think there would have been an era where fans would have revolted. And now I think there's just an understanding of, hey, these are people who, yes, they may be successful, wealthy athletes, but they are also people who go through real people things. You had COVID that I think put a different perspective for people on mental health. Again, I think there used to be a shame and stigma attached to it, and I think in some quarters there still very much is.

But I believe that, and I haven't seen any data or polling to support this, but I suspect there probably is some out there, and I think it would be supportive of the fact that people, and juries are made up of people, are more understanding of these sorts of things. How that translates, by the way, to an AI challenge, I don't know. That's a different ball of wax. But again, I think people understand mental health harms and how they manifest themselves in physical ways. It's been a very positive development for society over the last decade.

Hannah: Yeah, no, I agree. Sometimes I think clients will come to us and say, well, how do we explain this thing that happened? Like, people won't understand. And I'm like, I actually think people do understand. I think there are a lot of people out there who have had horrible things happen to them and they shoved it down before. And now, if they see someone else this happened to, it feels comforting rather than shameful. So there's that, and they're still challenging.

Ray: And again, folks who do focus groups and jury data probably have a lot more information on this, but I do suspect amongst older populations, there's probably still that stigma against people who have a mental health issue. I bet there's a socioeconomic component to that as well. I think wealthier people have more access to therapy and then a better understanding of those sorts of illnesses. And again, it doesn't make someone bad because they don't, but I just think it's an understanding of an issue you cannot see with your own eyes sometimes.

Hannah: Yeah. Okay, those are all my really serious questions. So that's not too bad. I feel like that went okay. So I guess let's turn to some fun stuff, fun PR things. I know we've talked about Reddit before, and I have recently been monitoring post-verdict, post-big media push, what's going on on Reddit. A lot of the time it's really negative and scary there, but sometimes it's useful feedback for how we phrase things, how we explain cases. How do you think that we should be using Reddit as a PR tool more, and how would you do that? Because I see a lot of people post a news story on Reddit and just let people comment on it, and that's helpful for message testing sort of thing. But are there other conversations that we should be having on Reddit or on similar boards that might be helpful for message understanding?

Ray: I guess a couple of things. One is I've heard more, especially SEO people, being like, oh, hey, this law firm, post on Reddit once in a while. And it's the worst of advice, I think, because they can smell bullshit artists on Reddit from a mile away. And Reddit is a community. Each subreddit is its own community. And I think there is a play to become a community member. But if you go in and just try to blab about why your law firm is great, what a ridiculous thing to try to do. You're going to get shouted down and ridiculed, and it's going to be more negative than positive. And I think part of that has come about because AI trains on a lot of Reddit data, but that doesn't excuse being, I think, dopey about how you engage there.

I read Reddit a lot, and what's interesting about Reddit is it has an algorithm, but it only involves what you decide. You follow certain subreddits, and you can just follow those and see those threads. Again, it's a microcosm of a certain slice of America. And I read Reddit a lot. I'm not on Facebook or Instagram or X. And Reddit has its own cesspools, but they're easily avoidable.

I often read the comments sections of news articles. And it's not because I think that is the prevailing wisdom or thought, but it is real people engaging, and I think it gives some sort of sight lines or introspection. And again, let's say it's an AI lawsuit, just as you mentioned before. If that gets posted in an AI subreddit, I bet the sentiment is going to be much more negative about the case than if it's posted in a mental health subreddit. So you also have to make sure you're balancing which community members you're hearing from, versus just focusing on one where the views are going to be slanted based upon the membership of that community.

Hannah: Yeah. I mean, I look at it like message testing, the same way that they do jury focus group sort of things. It feels like that. It's like, oh, I want to see how this group thinks about this subject, or see how they vary and how they talk about even just the nuances of an article. Sometimes Reddit people will really rip an article apart, while others don't really do that. So yeah, I just find it an interesting place to look around. It's also interesting how people digest news.

Ray: And I feel like there's this lazy kind of attitude. Oh, like, the news is dying, when it's not. I've said this before, there are more ways to get information than ever. And the news media business is in deep trouble. And it's in trouble because, let's say someone can just go on Reddit and see an article, and someone pastes the first three paragraphs of the story, gives them the gist. They're not going to click through to the article, and that hurts the publisher. I'm not saying that's a good thing, I'm just saying it's the way it is. But people are seeing all this information constantly, and they are forming opinions on it, and it's shaping their biases. So I totally agree, Hannah. Looking up this stuff, again, you've got to make sure you're going to different subreddits for the same information. But from a message testing standpoint, it's like a mini focus group.

Hannah: Yeah, it's interesting. Okay, anything, I guess, off of that, anything interesting you've read recently, whether you found it on Reddit or not, that you would want to share with anyone? A book, an article, any subject matter you have found interesting recently?

Ray: You know, I don't know why I'm thinking about this. Like a lot of people, I'm thinking a lot about AI, but I think most of it's a bunch of hogwash. I was talking to Boaz, one of our other colleagues, earlier today. Business Insider, which is now known as Insider, I got an email newsletter from them yesterday, and it was the twelve hottest legal AI startups. And anyway, I saved the article in my task manager and set a reminder for a year from now to see how many of those companies are still going to be around in a year. I would bet half of them will be gone.

And anyway, again, I think AI has such incredible use cases. I think it's being used dangerously by many people, first and foremost by the AI companies themselves, that I think are trying to play God in a lot of ways. But also, you hear about lawyers doing really silly, ridiculous stuff like having AI write legal briefs. I think it's an interesting way to analyze data. But anyway, I just see more and more, especially in our space, all these legal AI vendors, and I'm like, pick and choose wisely. Maybe I'll be proven wrong, and they'll all be around next year. And maybe I should have been an early investor in one of them. I don't know. But particularly as when we're taping this, I'm headed off to AAJ in Chicago, and I know there'll be a bunch of legal AI vendors there. I just, we'll see how many are around twelve months from now. And I don't wish them ill will. I just think that it's a weird moment in time right now.

Hannah: Yeah. I met a few at a conference and asked them all kind of the same question, and they all tried to differentiate themselves, so I respect that. But after a while, I was like, well, what do you do? They acted like they're friends and they don't do the same thing, but then I started realizing they probably do all the same things.

Ray: Yeah. I mean, look, selfishly, the AI boom has been, I think, good for what we do in two ways. One is you can look at all these AI models and they train on earned media. They train on the news. And we help our clients get in the news to help advance their firms or their cases. And that is extremely important from an AI perspective. So what we do really intersects there. We aren't, you know, I think there are AI SEO vendors, or GEO they call it now, and that's a bunch of, I don't want to talk about it anymore because it's so absurd. But it just so happens what we do intersects perfectly with how AI trains. So that's been, I think, one really interesting development.

And the second thing is the backlash to AI has also suited us in some ways, because people more than ever are craving authenticity and real-life personal connection. And AI is the antithesis of it. It is the complete opposite of it. And there's just this repulsion to it. It doesn't mean it's not a useful tool. And we use it day in and day out here to help brainstorm ideas. I mean, we have a manual on how AI can and cannot be used here. But the human connection that we try to help foster is what people are craving. And so anyway, I think it's an interesting time, and I don't know, we'll see when the bubble bursts.

Hannah: Yeah, so you're saying you're not going to replace me with an AI podcast host anytime soon?

Ray: No. I don't think anyone can be better than you, Hannah, at dishing out the hot takes.

Hannah: Maybe that AI podcast host would have a better background than you have.

Ray: So probably. I think that would be one improvement, but not anytime soon.

Hannah: Love it. All right. Well, that's all my questions for today. Anything else you want to cover that we missed?

Ray: Hannah, I love this Hot Takes episode. You did a great job. Thanks so much. We'll see you all next time on the next episode of Raising the Bar with RebuttalPR.

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