Fifteen Comms Observations from Musk v. Altman
Like much of tech, I’ve been obsessively monitoring the posts and liveblogs of the courtroom developments in Musk v. Altman et al. It’s ignited some flashbacks in me from circa 2012, when I was running point on comms for Google around Oracle v. Google, tech’s last big trial of the century.
It’s too early in the trial to compile anything approaching overarching learnings or teachable moments, and the characters involved are truly sui generis in ways that break easy extrapolation into unified theories about How CEOs Should Handle Trial Comms.
But here’s what I’ve observed so far, in no particular order.
There’s a vast asymmetry between the two parties. Elon has nothing to lose and everything to gain. Sam et al are in the opposite position. That means Elon can take many more risks with trial and comms strategies, pressing the line of what will piss off the judge.
It’s notable that Elon’s lead attorney is Marc Toberoff, a Hollywood IP litigator introduced to him by best bud Ari Emanuel. That kind of says everything about how Team Elon is approaching this: not as a contract case, but as a battle over the rightful ownership over something iconic in culture.
Trials are messaging exercises as much as legal or evidentiary ones. Each party should be able to express their theory of the case in one sentence. Elon has a wonderfully succinct message: “It’s not OK to steal a charity.” As far as I can tell from reports of the proceedings, Sam et al don’t really have as powerful a line? (A free bad one: “If Elon’s a nitwit, you must acquit.”)
Gotta hand it to him: as a comms tactic, Elon’s amplification of the New Yorker profile of Sam was inspired and basically cost him nothing. He’s just taking dollars from one pocket and putting them in the other. I’ve also observed a ramp-up in Starlink ads as well, so the house ad campaigns are firing on all cylinders across his empire.
OpenAI’s had this trial messaging/rapid response page up on their site for a while as you can see by the entry dates, but they didn’t update it at all in the month before the trial, as far as I can tell. It did a serviceable job of surfacing things in/from discovery, but it’s MIA now as the trial plays out.
Wachtell. Are we sure they’re good?1 At this kind of case, I mean. Trial comms is not the same craft as defending a $50 billion M&A deal.
The trial in the court of public opinion is largely settled by the discovery process; the trial either affirms that opinion or (if things go off the rails) disproves it. In this case, we’ve been sitting with the discovery docs for about two years, and nothing that’s happened has really changed any minds.
Hey execs: maybe don’t keep diaries? Relatedly, all these constant-ambient-listening AI personal devices are going to be an evidentiary gold mine sooner than later.
Speaking of discovery, you’d think after all the brutal and embarrassing lawsuit discovery processes the Valley has seen over the years, tech execs would learn to use the Phone part of their phones to discuss sensitive matters. Maybe this time it’ll stick.
We’ve yet to have a really great meme from the trial, either a super-viral answer in testimony, judge admonishment, or even courtroom sketch artist rendering a la Tom Brady or SBF. It’s going to happen, though. (Where’s the prediction market for that?)
Along those lines, one of the parties (or more plausibly one of their emissaries) should hire their own courtroom artist to sit in the gallery and produce meme-worthy illustrations. Fill the visual vacuum and do it through your own lens. It’d probably test the gag-order line, but it’d be fun to see someone try.
Does anyone else remember how E! produced a daily dramatized version of the OJ Simpson civil trial because the judge didn’t allow cameras in the courtroom?2 It’s a shame TBPN’s owned by one of the parties, because I’d kill for a nightly or even weekly dramatization of Elon on the stand and they’d be the perfect place for it.
Absent that, go get those weird Taiwanese animated news report folks for the trial. That’s just some free content alpha for tech publications right here.
The VC Twitter silence around this trial is deafening. If it were any other two principals, it’d be a field day, but no one wants to piss off either Elon or Sam in the course of engagement farming.
Sam can’t win the trial in the court of public opinion. He can only lose it less. Elon can’t lose. He can only win it louder. Plan accordingly.
I couldn’t use the classic-era Bill Simmons column format without using this trope. Sorry.
This is where growing up just outside of LA in the mid-’90s really shows through in my brain. Imagine the excitement of the guy who went home to his family one night and proudly pronounced, “I landed the O.J. trial gig!”
Thanks, Jim! As always, you’re an entertaining, insightful reminder that the court of public opinion is sometimes the only court that counts.