A U.S. Perspective, by KARV Communications
Andrew Frank, KARV Communications Founder and President
Andrew brings a wealth of experience in crisis communications, public affairs and media skills. An expert in creating communications strategies, he has more than 25 years of experience overseeing and implementing crisis preparation; managing product recalls, financial and/or regulatory issues; and identifying and managing communications issues around complex litigation.
Eric C. Andrus, KARV Communications Executive Vice President.
Eric is a senior strategic communications strategist with more than three decades of experience advising corporate, government and non-profit leaders on a range of critical reputational, financial communications and positioning issues. He is adept at developing effective corporate positioning, crisis management, litigation support, financial communications, media relations, thought leadership and public policy strategies for high-profile clients, C-suite executives and boards.
Litigation can have a significant reputational impact on business enterprises in any industry. While the legal strategy and outcome of the case may seem the most acute and urgent issue at stake, the litigation process itself can dramatically affect a company’s reputation and therefore its credibility with critical stakeholders – including investors, customers/clients, suppliers, employees, regulators, and others. At the extreme, a company’s long-term viability in the marketplace could be challenged or even greatly diminished. Media coverage of a case, and how the company’s stance and the rationale behind it are presented and positioned, matter.
There are numerous questions that should be asked by attorneys and senior company management when faced with the potential of litigation: How might decisions and actions during the litigation process be perceived by important stakeholders? How and when should a company communicate its position to key audiences in order to support the company’s ongoing business? At what point can the reputational effects of litigation become as damaging as the legal consequences themselves?
Because of litigation’s potential for ripple effects throughout a company’s standing among its major constituents, a strong legal strategy should have public communications elements interwoven into every decision, filing, and development. This does not necessarily mean that public or private statements need to be distributed – but it does mean that communicating key messages should be debated and discussed in the context of the company’s approach to the legal case. Poor preparation and lack of media sophistication can escalate litigation into a business-threatening crisis. But with a thoughtful and dynamic strategy in place, a company can help mitigate damage from an ongoing legal case while also advancing the litigation strategy – and supporting the enterprise’s overall business strategy.
How Strategic Communications Can Support the Legal Strategy
The court of public opinion has always been quicker to judge than the actual court system, and today’s news cycle is relentless – and only accelerating. At the same time, social media is increasingly becoming a key source of information for reporters. Information – and misinformation – can spread quickly, and to mitigate damage from a legal case, it is imperative to understand where and how the origin and spread of information can be controlled – and where it cannot.
Together with its PR advisers and legal team, any company or institution facing litigation should distill a core messaging platform which frames its position in a clear, concise and compelling manner. All legal and communications materials should be designed as elements of one cohesive narrative. Before any public statements, media interviews, or other appearances, spokespeople should rehearse responses to pointed questions, so that they are prepared to remain on-message.
Of course, all communications are situational, and there are times to hold fire and times to drive the narrative to help shape reputational and legal outcomes. Whether, when, and how to speak publicly should be determined with the understanding that in today’s media environment, the first story often shapes the public narrative to the greatest extent. Any attempt to change the tenor of an existing story can prove significantly more challenging later in the news cycle.
Early communication of your position may involve an exclusive interview with an interested journalist in advance of a filing or public statement, or a press release prepared for distribution immediately upon taking action, with the goal of ensuring yours is the first public voice, and your narrative frames the issue for the public. The company may also want to provide periodic updates to certain audiences – e.g., customers, employees, investors – at key stages in the legal process itself, during which it can reiterate its position and rationale as well as explain the significance of the stage and that of the likely next steps in the case. While there may be variations in the length or specifics of communications with different stakeholders, consistency of facts is key, and all statements should derive from the core messaging platform.
Speaking directly to the public or the media is not the only way to influence public perception, however. Since most legal documents become public immediately upon filing, they can also serve as powerful communication tools outside the courtroom. Many journalists use legal filings as primary sources for articles and quote extensively from them. This means that the language within court documents can underscore your company’s position and place it in the proper context, and filings should be crafted accordingly.
Lawyers, too, can be an important source of information for reporters – whether providing background guidance and context or on-the-record comments. This is especially true when the client does not have an appropriate spokesperson or does not want to comment publicly on litigation in which it is involved.
Remember that court proceedings provide a platform not just for the defendant but for its critics as well. Adversaries can be adept at mobilizing coalitions, winning media attention, and using sympathetic individuals to advance their agenda. A company facing litigation should be preparing for these possibilities, including responses and corrections where appropriate, as well as considering its own media engagement and mobilization campaign. Certain media outlets may naturally be more sympathetic to your cause – pick the most advantageous outlet and circumstance available, and develop clear, concise messaging tailored to the outlet and platform. There is also great value in investing time to develop relationships with key media, and on high profile matters, consider encouraging editorial and opinion writers to weigh in.
A robust legal strategy is necessarily developed with an understanding of the interplay among the courts, the media, and the public.
Why Bring in Outside PR Counsel in a Litigation Situation?
As PR counselors who specialize in crisis communications and litigation support, KARV is sometimes asked why an enterprise facing a litigation matter should turn to an outside communications firm instead of relying upon its in-house PR team. In our experience, external PR counsel can:
Litigation is much more common in the United States than in most other nations. More importantly, the litigation process in the U.S. is typically more public than in other countries. And because litigation is so ubiquitous in the U.S., the American news media, bloggers, and social media users are very accustomed to taking notice and covering it, and there is an entire segment of the media industry dedicated to covering the legal industry. Most court filings in the U.S. are public documents, and journalists monitor for these documents and are likely to obtain information as soon as it’s been filed in court. These facts increase the potential for reputational damage to companies based outside the U.S. – as they may not be prepared to handle the speed with which a messy legal case in the U.S. can rise to the attention of their customers, investors, partners, and employees, in addition to business and trade media back home.
Foreign Boards of Directors and corporate leaders commonly fail to prepare for potentially harmful reputational impacts when facing litigation in the U.S. – even as they routinely retain an outside law firm to counsel on legal strategy. To avoid such a situation, C-suite executives and Directors abroad must make sure the appropriate communications expertise is in place in the U.S. well before it may actually be needed.
Companies will first need to determine whether the in-house communications team is capable of planning and implementing an effective communications strategy that protects the corporate brand, or if an outside PR firm in the U.S. with litigation support expertise should be engaged. Why engage communications counsel in America as well as a law firm? In addition to the benefits that an outside firm also offers a domestic company, listed above, for foreign entities, an outside American PR firm can also:
Keys to a Successful Experience with Outside Litigation PR Counsel
One of the most crucial components to a successful litigation communications campaign is full cooperation and coordination among the client, legal counsel, and PR advisers. An external PR firm should not work independently but in close coordination with legal counsel and the client to develop all messaging and media outreach plans; this ensures that the communications and legal strategies are fully aligned, and that both the legal and the PR strategy support the client’s end goals for the overall business, its long-term reputation, and relations with all relevant stakeholders.
The PR firm should review key materials prior to their being filed with the court and offer advice for emphasizing messages and packaging them for use by the media, and in conjunction with legal counsel, determine the most effective language to achieve both the legal and communications needs. PR counsel should also work in close coordination with the client and its legal advisors when drafting the messaging platform and communications materials (e.g., press releases, talking points, executive summaries, employee updates, and social media posts) – to ensure that the language does not detract in any way from the legal strategy.
External PR counselors who can contribute most meaningfully to clients will first ensure they fully understand the legal strategy and are familiar with the specific media environment of the jurisdiction where the litigation is being brought. This will allow the PR firm to specifically tailor messaging to the client’s particular legal and reputational needs. PR firms familiar with the subject matter and geographical area of a case can also identify relevant journalists or other influencers, facilitate introductions for the client as appropriate, and help foster relationships.
Responsiveness is also a key factor. Particularly as a case progresses, the ability to quickly gather and vet information, decide on public responses to rapidly emerging developments, and obtain legal approval is critical. If approval from one or more parties is delayed, opportunities may be missed which limit the effectiveness of the legal and/or communications strategies.
Ultimately, fostering a coordinated and responsive working team among client, attorney, and communications adviser can best enable an organization to prepare for, and mitigate, the reputational effects of litigation while maintaining its ability to pursue its business goals.