Litigation Communications: Overview and Trends.
About the Author
James F. Haggerty, President and CEO, PRCG | Haggerty LLC, New York
Jim Haggerty is an attorney, communications consultant and author with more than 25 years of experience counseling corporate, nonprofit and individual clients in diverse industries, including sports, financial and professional services, tech, healthcare and the environment. In the area of litigation communications, Jim has consulted on some of the largest cases of their kind in history, including one of the largest global criminal fraud cases, the largest intellectual property verdict and the largest case ever filed against the US government. In 2017, PR News named Jim as one of their “50 Game Changers of PR” for his work as a “pioneer” in the field of litigation communications. In 2019, the American Bar Association will publish the third edition of Jim’s landmark book In the Court of Public Opinion: Winning Strategies for Litigation Communication, which the Financial Times has called “the perfect handbook for this age of show trials.” He is also the author of Chief Crisis Officer: Structure and Leadership for Effective Communications Response (ABA Books, 2017), which takes a broad look at crisis communications.
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What is litigation communications? To some, it is writing a press release or statement in response to an incendiary legal filing lodged by an aggressive plaintiff’s lawyer. Or a press conference on the courthouse steps to announce the filing of a lawsuit. Or, perhaps, a late-night shouting match on a cable news network over the latest US Supreme Court ruling.
In truth, while each of these events may occur during the course of a legal dispute, litigation communications as a discipline is far more than this. For litigators—and particularly for those operating in the US—litigation communications is a far broader strategic discipline. Indeed, it is often a critical part of the overall litigation management process, as important to the case as aggressive factual investigation and legal research, retaining the right experts, or utilizing effective document management technology. Planning and proper resources are key.
Thus, in the new edition of my book In the Court of Public Opinion: Winning Strategies for Litigation Communications (ABA Books, 2019), litigation communications is defined as:
Managing the communications process during litigation or other adjudicatory proceedings so as to affect the outcome or its impact on the client’s overall reputation.
Why is communicating properly important? One reason is that most cases will never see the inside of the courtroom—at least not for trial. In the US, it is estimated that more than 95% of legal actions settle before trial or other formal adjudication. Thus, the court of public opinion is often the only forum where guilt or innocence (or, in the civil sense, liability) is ultimately assigned. More than this, however, the way a case is managed publicly can have a significant impact on the perspectives and negotiating position of the parties when they eventually reach the settlement table. For example, if a defendant in civil litigation in the US has been publicly battered in the media (social media included) for months, that party’s settlement posture will be far different than if such public condemnation had been avoided. Alternately, if a defendant can show plaintiffs' lawyers that their skill and ability at handling the communications aspects of litigation will make it harder to “try the case in the media,” plaintiff’s posture throughout the litigation—and the level of resources opposing lawyers devote to a particular case—can change dramatically. Put simply: without the prospect of a quick and easy payoff, plaintiffs' lawyers often lose interest. For both plantiffs and defendants in litigation, therefore, managing the process effectively can have a considerable impact on its ultimate resolution.
This has never been more true than in this age of social media, smartphones and a 24-hour news cycle, where lawsuits are brought more quickly than ever—and launched into the public spotlight even faster. For defendants, a successful litigation communications strategy can help mitigate the damage caused by lawsuits. It can mean the difference between a “blip” of media coverage and a full-blown reputational disaster. The key lies in effectively communicating to the right audiences, including external audiences such as the media or internal audiences such as employees or investors. Having a plan in place for litigation communications response can be one of the most valuable defense mechanisms against reputational damage as a legal dispute progresses.
Lawyer and Client Resistance to Litigation Communications
The above no doubt makes sense, but in many circumstances, the public aspects of legal disputes are waved away as mere window-dressing or left until after the “real” legal strategy has been completed. Having worked with lawyers and their clients in high-profile litigation for more than 20 years now, I can firmly assert that this approach is short-sighted. . . and often disastrous.
This attitude is frequently expressed by lawyers and clients alike in some form of the following clichés:
1. The best public response during litigation is “No comment.”
2. Fighting this case only really matters in the courtroom.
3. My attorney will handle all press.
4. It is unproductive to pay attention to social media during litigation.
5. This too shall pass; all we can do is keep our heads down.
6. The media will write what they will; there is no way to control media coverage of this issue.All of this is wrong. There is simply too much attention paid these days to commercial disputes, including those that end in litigation. Lawsuits of all types and sizes are becoming big news in business, trade, and general interest media. To quote a federal district court judge in New York: “advocacy of a client’s case in the public forum will be important to the client’s ability to achieve a fair and just result in pending or threatened litigation” and “dealing with media in a high-profile case is not a matter for amateurs.”
In truth, even the best litigators can be remarkably deaf to public perceptions of litigation. While they are tirelessly working to gain an edge on their opponents in the courtroom, they often neglect the public relations aspects of their cases. Part of the problem is that most top litigators came out of law school in the 1970s and 1980s (or perhaps, these days, the early 1990s) when there was no Internet, no 24-hour cable news, and generally very little business news coverage of court cases. Thus, they never learned about these things during legal training—and were, in fact, likely mentored by litigators who came of age in the 1960s or 1970s. Litigation communications professionals look to combat this problem by taking a holistic approach to this critical aspect of modern litigation, including by monitoring media and social media coverage, fostering productive interactions with reporters and editors, framing the issues in the mind of the public before litigation is underway, and otherwise ensuring that their clients’ point of view is presented correctly and throughout the dispute. It is this strategic overlay to the management of perception during litigation that is essential to success but often overlooked in the heat of an adversarial legal battle.
Framing issues properly and communicating messages quickly and clearly to the public is no easy task, but in the digital age, when media coverage emerges just minutes or hours after any given development in a case, speed and clarity are critical. Getting ahead of coverage by providing audiences with the documents and facts they need, along with a summary of what you want them to learn from this information, is crucial to controlling public perception of any legal dispute.
Framing the Story
“Just send the media the briefs and exhibits. After the reporters read all that, they’ll understand.”
This, too, is a dangerous attitude. Distilling your story for outside audiences is the only way to ensure that they understand the strengths of your argument and your client’s reasons for taking the position they have taken in the litigation. We want your narrative cemented in the minds of the stakeholders who will influence perceptions regarding the legal dispute. We want it repeated; we want it understood. We often call this the “mantra” of the case.
Moreover, it is a common misconception that a particular event or situation either is news or isn’t, and that there’s no way to influence (1) whether a story is written; (2) how issues will be framed in the public’s mind; or (3) how big it will be. This is the “you can lead a horse to water, but you can’t make it drink” attitude, which can lead to huge missed opportunities for positively impacting perceptions during litigation. To communicate the facts you want to get across in a way that media and other public audiences understand, litigation communications has to be much more sophisticated than just sending thousands of pages of court filings and back-up documents to media and other audiences—the “spaghetti on the wall” approach—or the traditional PR firm formula of (1) writing a press release; (2) compiling a media list, (3) sending out the release, and (4) repeating as necessary. We call this the “lather, rinse, repeat” approach to public relations, and while it may work when you are promoting a simple product like shampoo, it is far less effective in the face of complex litigation, with layers of fact and law that need to be reinforced over weeks and months as a case progresses.A much more productive strategy is to develop a core message and then target specific media outlets that will be most helpful in reaching target audiences. Considering your target audience first, then communicating what matters about your case to them can vastly impact public perceptions on your legal dispute and the issues at the heart of the case. It won’t make a weak argument strong, but finding the right information in the thousands of pages of documents surrounding your issue can mean the difference between success and failure as a matter moves forward. Litigators in the midst of their work often “can’t see the forest for the trees,” getting caught up in the intricate details of the case that will help them win in court, rather than the overarching message that will earn them favor in the court of public opinion. Curating and disseminating this message is the craft of a litigation communications professional, and leaving this work to seasoned professionals saves time and effort on the part of the litigators.
Trend: The Convergence of Litigation Communications and Crisis Communications
Litigation PR has some overlap with the broader practice of crisis communications—a well-known subset of public relations since, at least, the famous US cyanide in the Tylenol incident of the early 1980s. Crisis communications is defined as the process of ensuring an effective communications response to an unstable or critical state of affairs that threatens to have an undesirable or negative impact on an organization’s reputation, business or goals. Needless to say, a media circus surrounding a lawsuit can threaten such damage to reputation—especially when a case involves a prosecutor willing to cause a ruckus to further their career or political goals. Thus, as in crisis communications, it’s important during litigation communications to have a plan and team in place for dealing with media, and it’s vital that each member of this team communicates the same core message to the media. To this effect, all facts must be assembled to ensure that only accurate information is flowing to public audiences.
Since legal issues are often intertwined with the physical event at the heart of what is typically considered a “crisis,” an organization’s strategy must often combine elements of both litigation and crisis PR. Additionally, in the digital age when stories can be published with increasing rapidity and then go viral in a matter of minutes or hours, developments in a legal dispute can become reputational crises themselves. Thus, the line between litigation communications and crisis communications is blurring, and experts versed in both fields tend to be those most equipped to handle public relations throughout a litigation.
That being said, litigation communications differs from crisis PR in several key ways. First of all, a lawsuit unfolds over months and years, so it can’t be treated in the same way as a crisis that explodes over hours or days. Communication during litigation requires constant exertion of pressure to follow the ebb and flow of the litigation itself. Since the story is much more stretched out, litigation PR is less event-driven than traditional crisis communications and cannot revolve around a one-time event that will be slowly forgotten as the case winds its way through the legal process.
Additionally, since legal issues are generally more complex than other crises, it’s even more important to work on finding a way to quickly, convincingly and effectively communicate facts to public audiences in an understandable fashion. Litigation PR specialists are therefore differentiated by their ability to distill the complexities of a particular court case into an easily digestible format. Finally, while in crisis communications it’s beneficial to have the CEO or organization head act as the spokesperson during a crisis, the client is not always the most appropriate spokesperson in litigation communications. Trial lawyers will have the best handle on the case; thus, they are often the experts from whom reporters will most want to hear.
Trend: The Digital Age and the Need for SpeedIn the digital age, when news outlets post new stories minute-by-minute rather than once a day, media face rolling deadlines and the looming threat that another media outlet will beat them to the story. Put simply, members of the media want the truth, they want it now, and they want it in a form that’s useful to them and their audience. It’s crucial to organize the facts into a core message so that only correct information is communicated to the media.
In addition, reporters and other key influencers face word limits and, if they engage in social media, Twitter’s 280-character limit. With an audience that is endlessly scrolling through social media or news aggregator apps, reporters have only a few sentences (or a few seconds, in the case of video-format stories) to grab the attention of potential readers. What they need most are the bits and pieces of information about litigation that will interest their audience. Time is of the essence; with pressing deadlines, those influencing perceptions surrounding your matter have less time than ever to sift through reams of highly complicated legal information to uncover the story within.
Trend: More Often Than Not, Litigation Makes the News
The rise of business-, legal- and social-media platforms have altered the landscape of the practice of law. The past few decades have given rise to thousands of trade publications, now all online and accessible through social media platforms. These include many media outlets devoted to legal news, as well as business news in an endless variety of industries. As litigation has become central to US commercial and economic life, business news in the US necessarily includes legal news. Readers of business and legal trade outlets, and followers of business and law reporters on social media, are specifically interested in the stories produced around litigation. This new supply of and demand for legal news has one inevitable consequence: while you can hope that litigation will or will not garner media attention, you can no longer ever assume that a lawsuit will not make the news.While these publications have smaller audiences than the major newspapers, their readers are specifically interested in the subject matter they are reading. This means that a story in a legal news outlet may only be read by a few thousand people, but these readers are more engaged in the story than the average reader of a major newspaper would be. Thus, these smaller outlets provide an efficient way to reach target audiences. Don’t neglect reaching out to trade publications for coverage because of their small circulation numbers; one interested reader can often be more valuable than a hundred disinterested ones.
The practice of harnessing the power of media to target specific audiences can influence public perception of a legal issue. This practice, litigation communications, is a relatively new field, having appeared only within the last 30 years, and—quite naturally—coinciding with the explosion of media and information over the same time period. Indeed, recent changes in media have greatly altered the practice of litigation communications. As more and more crises involve legal issues, litigation and crisis communications are converging. Digital and social media have also changed the speed at which news is released, increasing the need for rapid communication of core messages. Finally, the rise of trade publications has opened a new path towards reaching target audiences. Both parties and their legal counsel should understand the manner in which public attention has changed the way litigation is both perceived and managed, and take all the necessary steps to ensure the proper impact on the case, as well as overall reputation.