A Practical Guide to Litigation PR
Litigation PR is a highly distinctive branch of communications work that, to be undertaken effectively, requires specialist knowledge and experience. Given the high cost and strategic importance of litigation, it is vital that your efforts inside the courtroom are supported and amplified effectively outside it. This will protect your client from reputational attacks by the other side, and also ensure that both the Judge and the public understand the wider factors at play.
In order to achieve this, litigation PR professionals should be brought on as early as possible during the planning stages of litigations. This will enable them to provide strategic advice about how key aspects of your case will play in the media, as well as to identify which disclosure documents will have the most impact in the media at trial.
Usually a key document for your case will also be a vital tool for shaping the narrative outside the courtroom, but this is not always the case. Indeed, sometimes a document which is not pivotal to the case can prove more compelling for the press and the public.
Your litigation PR team should form an integrated unit with your solicitor and barrister teams, and the client. Building trust at an early stage is key as sometimes the PR impact will need to be reined in, in order to ensure that timing is optimised for the legal process. Equally, sometimes media points will need to be made early in Particulars of Claim and skeleton arguments, where their legal importance alone might not have secured them such a high billing.
The key to communicating effectively throughout a litigation is having an in-depth understanding of the legal process. While promoting your side of the case may be greatly beneficial, particularly if you are seeking to push the other side towards settlement, clumsy efforts in this field can be damaging to the litigation.
A familiarity with the Civil Procedure Rules (CPR) is vital for any litigation PR professional. For example, CPR 31.22 covers the collateral use of disclosure documents. A good litigation PR professional will be able to:
i. Identify key documents for the communications strategy in the disclosure.
ii. Work closely with the legal team to establish when key documents can be read into open court, removing the restrictions placed upon it by CPR 31.22.
iii. Have a full strategy prepared for the rapid deployment of this document with the media as soon as it becomes public.
An understanding of the rules of the courtroom, and how to navigate these without attracting criticism from the Judge, is vital.
Promoting topical cases
Some cases PR themselves, in that they involve very high-profile individuals or corporates and touch upon topical themes, such as privacy or data protection. In these big media cases the job of the litigation PR specialist is to ensure that the media interest is focused on your client’s key points, rather than going off-piste by amplifying the arguments of the other side.
Here speed in press briefings is absolutely key, making sure that you are metaphorically – and sometimes literally – first to the microphone. Getting your messages across quickly will ensure that you shape the narrative, rather than getting swept away by it. In these situations your briefing note will need to reach international newsdesks within minutes of a judgment being technically handed down.
The trick here is to leverage the great media interest in the case to focus on the best points for your client. The narrative in these cases can be like an oil tanker, in that attempts at sudden changes in direction will go unnoticed by the press. Instead you will need to keep banging the drum of the main elements of the case, while gradually shifting the focus firmly towards where you want it to be.
These newsdesk briefings can then be followed up with more targeted exclusives, working with selected journalists to introduce nuanced pieces of information, either through interviews with your client or exclusive feature stories which allow for more in-depth reporting on the key issues.
Speed in communicating with journalists post-judgment is critical. CPR Practice Direction 40E prevents the sharing of a draft judgment any wider than the party and their legal team. As such, lawyers should work with the PR team to ascertain which angles are key for journalist liaison prior to hand-down, and the legal team can then prepare summaries of the judgment that focus on the key points for media, allowing the litigation PR team to rapidly digest the judgment and prepare press releases within minutes of technical hand-down.
Making ‘dry’ cases topical
More usually, cases might initially look fairly dry and need a good deal of standing back from, in order to help journalists see the wood for the trees and become interested in covering your client’s key points.
Here you should look for journalists who have covered this, or analogous cases, in the past and try to broaden out the legal points from the specific to the general. It might not be of general interest to the public whether the privacy of client A was breached by client B; but if this can be got up as a test case, with implications for the privacy of all, for example, then it is possible to garner wide media interest and coverage from what would otherwise have been a rather dry hearing.
Being able to transfer the complexities of a case into easy-to-understand briefing documents is essential. This allows journalists to dive more confidently into the story, as well as providing an easy way for them to sell the case to their editors. Signposting the key areas of legal documents that support the briefing narrative also allows them to reassure their legal teams that the story is safe to cover.
Court documents may run into hundreds of pages, but it is important that your litigation PR team is able to condense them into only a few pages, without losing any of the meaning or any of the essential legal points. The briefing document should both tell the story in a way that engages the journalist and their readers, while also pointing to the relevant public documents that support your story for the newspaper’s legal team. Making your story interesting, topical, and easy to write up will encourage journalists to cover the story from your perspective. Where a story really is too dry for a national press journalist to cover it, the above approach is also highly effective in liaising with trade press, such as the legal press or the trade press of the industry sectors which are relevant to the case.
Sometimes targeted coverage in these types of smaller publications can have a big impact on the other side. Such coverage can also be used to convince a wavering journalist at another, larger publication that the story is safe to run with.
Promoting positive developments
Positive developments are often the most important parts of a case to promote. It is important to have a proactive strategy developed as far in advance of the development being made public as possible, that supports both the next stage of the legal case, as well as your wider communications objectives.
For example, if you believe that the cross-examination of a key witness for the other side is likely to bear fruit which can be used in the media, you should be ready to draw journalists’ attention to these key points outside the courtroom during the next recess, or even by text message. Similarly, your briefing pack should be prepared between the court rising for the day and the official transcript arriving. As soon as the transcript arrives, check it for your key points and signpost journalists to the most important pages, line numbers and quotes for your story.
It’s important to send journalists complete transcripts, so they can see that you are not sharing only half the story with them. For the same reason, it can be helpful to provide to journalists the other side’s defence to a claim and their skeleton argument and closing argument at trial.
Any positive developments for your case should also be viewed through the eyes of the other party, in order to identify any negative aspects of the case for your client, which may be deployed by them in their own media outreach at the same time. This will help your proactive messaging to head off these aspects and keep the media’s focus on the positives for your client.
We call this a proactive media strategy, but in fact all media strategy needs to be proactive, in the sense that even a reactive strategy needs to be prepared in advance, and deployed the moment an attack from the other side is perceived, often by a journalist contacting your side for comment on a potentially negative story.
Handling PR around negative developments
Setbacks in a case, whether in the form of legal points being lost in CMCs, a judgment against your client, or a poor cross-examination by one of your key witnesses, can often cause a decline in communications efforts. This can be highly counterproductive, and your litigation PR team should seek to either maintain or regain the front foot in the communications war.
Naturally you will not wish to brief journalists extensively on a negative decision, but a strong messaging strategy is still required. Comments from your client, or a spokesperson for them, can be deployed reactively, or provided proactively to journalists you know will be covering the story. These can mitigate any of the worst aspects of the development while emphasising the positives, such as your client’s intention to appeal. For this reason, it is good to plan your appeal strategy and draft a quote in advance of the judgment being handed down, in the event that it goes against you. You can then deploy in the media a pithy comment from a spokesperson for your client about the flaws in the judgment and what this would mean for the public and the law if this judgment were allowed to stand.
Sensitivity to other litigations
Often litigations do not take place in a vacuum but are relevant to other cases, either in London or in other jurisdictions internationally. It is important that your media strategy in one case does not cut across another. Similarly, it may be important to highlight certain aspects of case A, as these will assist case B when it comes to court, or for its appeal.
Larger clients will often have multiple litigations on foot at any one time, or planned for the months and years ahead. Therefore your communications strategy will need to be focused on winning the overall litigation war for your client, not simply each battle. A good litigation PR team will be able to ensure that your QC has an eye to your client’s wider objectives, and not merely be blinkered by the case on foot. Naturally your barrister team will fight 100% in the sitting trial, but that should not mean being suboptimal about preparing the ground for cases coming down the track, or even serving the media objectives of your clients outside of their litigations, providing these objectives can be achieved seamlessly, the one with the other.
Building a strong rapport with the court reporters covering your case is essential. A publication will usually send the same journalist to each hearing in a case, and working closely with them to help them understand the ins and outs will pay dividends.
If your side’s litigation PR team is the go-to for a court reporter for confirmation of any points raised during hearings, this will also provide additional opportunities to amplify your client’s messaging with that publication. You will achieve this status if you are always open and balanced with journalists. Give the other side credit for their good points, but also make sure your points are more interesting or significant, where possible.
Where COVID-19 has moved court hearings online, it is equally important to build these relationships with court reporters, who may otherwise be receiving their information from the other side. Checking the list of attendees in an online hearing will allow you to identify the reporters and then reach out to them, ensuring that if they will be writing on the hearing you can provide comments or guidance regarding the story as required.
In your dealings with court reporters and the media as a whole, it will help to keep them abreast of all developments as soon as feasible, such as court timings, locations and key documents being made public, including those of the other side, so they can rely on you to understand all aspects of the case.
Sometimes the need for speed and efficiency in litigation means that a settlement is preferable to a full trial. For example, in group actions or in asset recovery litigation, or where our case is weak or our opponent very strong financially. In cases where the other side is more vulnerable to reputational damage than your client, media attention can be courted to emphasise the potential for reputational damage to the other side should the case go to trial.
In these circumstances, briefings should be prepared to focus on the parts of the case that are most embarrassing for the other side, rather than necessarily on the strongest legal points.
Publications that are read by clients, shareholders and stakeholders of the other party in the dispute should be targeted particularly, such as national and international press, as well as industry-specific trade press. Consideration should also be given to the potential impact of a story in a free publication, such as the Mail Online, where the most embarrassing aspects of the case for the other side will be available internationally and without a paywall.
Today’s headlines used to be tomorrow’s fish and chip paper, but the combination of Google and online news means that reputational damage can now live forever online and be served up in the most appropriate way by search engines, whenever searches are conducted against search terms relevant to the other side.
The key aspect to modern reputation management is the SERP on Google. Journalist liaison should focus on publications with a high domain authority.
In many litigations, it is more important to secure high-quality coverage in, for example, the FT or The Times of London, regardless of paywalls. But for some stories, coverage that is not behind a paywall can be more beneficial in getting your message across to a broader section of the public. This is particularly true when gathering retail claimants for group action litigations, for example.
If a person or company is named in a headline then Google will drive that result to the top of its search results, so achieving this can be very advantageous for settlement PR. However, clients and their advisers should be aware that at major publications, the headlines are often not written by the journalist who authors the story, but rather by subeditors – and they can even be changed throughout the day as they are optimised for traffic hits in larger online publications.
So, while reputations can be very effectively managed, they cannot ultimately be controlled in a vibrant and free press. Therefore, when clients throw their hat into the ring of publicity, they need to understand that they are entering a contact sport, where they will ultimately knock out their opponent, but not without receiving the odd punch along the way.
Similarly, lead-in times for national press feature articles can be several weeks from initial phone call to published article, and there is never any guarantee that a story slated to run one Sunday will not end up running the next, or even never, depending on the amount of space in the paper and the view of the newspaper’s editor and lawyers of the journalist's story. So it is particularly important that clients and their advisers appreciate that once the decision to place an article has been made, this process can seldom be reversed, for example even in situations where the other side has now come to the table in settlement discussions.
Editing articles post-publication
The online nature of news means that inaccurate reporting can be amended post-publication. As articles are published, journalists may have made factual errors, particularly in complex litigations, and where they will also be receiving briefings from the other side. In these circumstances, it is vital that the PR team and legal teams work closely together to evidence why information is incorrect, with reference to publicly available documents.
The approach to these journalists should be done by the PR team and in a friendly manner, rather than by a solicitor or a legal letter in the first instance. As soon as lawyers become involved, the newspaper’s legal team will be aware of the potential for being made liable for costs and will take precautionary steps that will delay the rapid resolution of the issue. Where mistakes in coverage can cause major reputational issues, it is better to attempt to resolve the errors rapidly and constructively, ensuring both that future coverage will be better and that the journalist and newspaper remain on-side.
Litigation PR professionals should also be willing to work with journalists on background only, using private documents on the proviso that they are not referred to in the article to support the points they are making. This should be handled very carefully, and in close correspondence with the legal team, to ensure that there is no risk of contempt of court issues arising.
Communications can make or break litigations for clients, so get your litigation PR team on board as soon as litigation is contemplated. Integrate them with your solicitor and barrister teams and ensure that they also have a good relationship with your client. This way they will be able to operate in a fluid way, bringing out the best communications points to optimise the legal strategy. And remember, litigation PR – like litigation itself – is a marathon, not a sprint.