What Michael Avenatti Got Badly Wrong | Opinion

I can't vouch for celebrity attorney Michael Avenatti's skills in a courtroom—and hope never to test them. But as someone who's worked with lawyers on press relations for 30 years, I can say with confidence that he's a first-class bumbler in litigation PR.

Avenatti appeared in New York federal court on May 28 to plead not guilty in two separate cases, one alleging he embezzled $300,000 from adult film actress Stormy Daniels, the other that he conspired to extort just over $20 million from Nike.

Granted, the dapper Avenatti has a flair for showmanship. The "60 Minutes" tell-all interview he landed for his former client Daniels in March 2018 was a ratings coup, drawing more viewers than the Grammys and even Donald Trump's own post-election appearance on the program in 2016. He's does outrage well and delivers blunt sound bites that are a publicist's dream—telling a judge he was "100% not guilty" at his recent twofer appearance in New York's Southern District.

That determination will come in due time, but it's fair to say he's culpable for mishandling media strategy in the Nike case.

According to a criminal complaint brought by the Justice Department, Avenatti met with Nike's outside lawyers in March and said he would hold a press conference to disclose illegal payments the sneaker giant made to high school athletes. Such a reveal on the eve of the company's quarterly earnings report and the start of the NCAA basketball tournament would "take $10 billion off your client's market cap," Avenatti allegedly warned—though not if Nike instead agreed to pay him millions and retain his law firm to conduct an internal investigation.

The DoJ regards an overt demand for payment in exchange for not issuing damaging information extortion—and Avenatti is captured on an FBI recording saying, "If [Nike] wants to have one confidential settlement and we're done, they can buy that for $22.5 million and...we ride off into the sunset."

In fact, there is a long tradition of threatening negative publicity to advance negotiations in a business dispute. I've drafted multiple news releases outlining alleged misdeeds for lawyers to present the other side as a lever to induce a settlement without resorting to litigation, thereby sparing the opponent a public shaming and reputational harm.

The difference is, such accusations are meant to accompany a formal court pleading, with language drawn straight from a captioned complaint, including proposed remedies and specific damages for a jury or judge to decide. It's OK to reference the most extreme wrongdoing, as long as it's tethered to facts in a complaint. Never would we advise an attorney to warn an adversary, as Avenatti allegedly did, that if they don't agree to his financial terms, he would continue to release whatever negative nuggets his sources feed him to the Washington Post, New York Times, ESPN and other outlets, or to threaten that "the company will die"...cut after cut after cut," or, indeed, to boast that nothing short of someone getting "killed in a plane crash" would hold up his show.

Avenatti's bigger mistake was to allegedly forewarn Nike of his plans for a media splash in the first place—that is, if he really was advocating for his whistleblower client and not just a payday for himself. The most effective lawsuits are staged as surprise attacks, putting the target on defense and giving the plaintiff high ground and control of the narrative when the cameras start rolling. By showing his entire hand so brazenly—and making scorched-earth statements on tape—the lawyer set himself up for a publicity counterstrike that smothered his payola accusations, no matter how credible.

If only he'd held onto his cards until he was prepared to bring a civil action, Avenatti could have called his press event, waxing indignant as he waved a filed complaint or sworn statements of wrongdoing. Such dudgeon is standard fare in high-profile disputes. For a gender discrimination suit we handled some years back, we had our lawyer accuse a major bank of "putting the man in managing director." In a trade theft case against Anheuser Busch, our lawyer said his client "now knows what it's like to get kicked in the chest by a Clydesdale." Both phrases were widely reported in news accounts and helped secure more favorable terms when the cases settled. Avenatti could have had a field day invoking Nike's swoosh logo as a tool for bribing student athletes, if he'd gone directly to the press with his claims instead of allegedly trying to squeeze a massive payoff to go away.

Avenatti may well beat prosecutors' claims, if he can prove his threats were lawyerly theatrics rather than blackmail. But I wouldn't bet on seeing him win in the court of public opinion after appearing to cast himself as a shakedown artist instead of moral avenger.

Allan Ripp runs a press relations firm in New York specializing in legal affairs and litigation.

The views expressed in this article are the author's own.​​​​​