Litigation Communications: Overview and Trends
Litigation Public Relations and Litigation Communications in a New Age of Technology and Transparency
Just as technology, the Internet and social media have changed most aspects of our personal and professional lives, so too has it changed the practice of litigation communications (or litigation public relations, as it is also known). Response must be faster yet more strategic, while the reputational consequences of each legal move are magnified and amplified far beyond the courtroom walls. Planning, preparation and rapid response are all critical elements to ensure a litigation communications program that effectively supports high-profile, high-stakes legal matters.
In 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.
To some, this might mean simply writing a press release or media statement in response to an incendiary legal filing lodged by an aggressive plaintiffs’ lawyer. Others might envision a press conference on the courthouse steps to announce the filing of a lawsuit. Still others a late-night shoutfest on cable news over the latest U.S. Supreme Court ruling or global financial or criminal case.
In truth, however, while each of these events may occur during the course of a legal dispute, litigation communications is much more than this. For litigators, corporate counsel and senior executives, litigation communications should be considered a broader strategic discipline, one that is often a critical element in effective litigation management. In high-profile cases, it can be as important to the client’s ultimate success as effective electronic discovery document management, or the retention of the right experts. This is particularly true in the age of social media, as Twitter, Facebook and other platforms have come to dominate not just news dissemination, but social and group interactions as a whole.
Moreover, in an age in which concepts such as Environmental, Social, and Governance (ESG) principles and Corporate Social Responsibility (CSR) have taken root within the corporate environment, it is no longer enough to be right on the law or the facts. Your client’s public posture must be in line with modern social mores and contemporary concepts of acceptable organizational behaviour. To think otherwise runs the risk of winning the battle on the legal front but losing the reputational war.
Finally, and importantly—particularly for defendants—litigation communications is often not about making the loudest noise in response to pending or current litigation. Rather, proper litigation PR is an exercise in risk mitigation: ensuring that the legal issues facing an organization or high-profile individual do the least reputational damage possible as court proceedings. Planning and proper resources are key.
Why Litigation PR Is Important
Why is communicating properly during litigation so 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 media and social media 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, the 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 lose interest. For both plaintiffs and defendants in litigation, therefore, managing the process effectively can have a considerable impact on its ultimate resolution.
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 decades, I can firmly assert that this approach is short-sighted and often disastrous. 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 tone deaf to public perceptions of litigation. Good litigation communications consultants look to overcome this deficit by taking a holistic approach to this critical aspect of modern litigation, including by monitoring media and social media coverage, fostering productive interactions with key audiences, framing issues in the minds of media and the public before litigation is underway, and otherwise ensuring that their clients’ “narrative” or “storyline” is presented correctly 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 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, and for a simple reason: no media outlet or social media commenter is going to thoroughly read all the legal documents in a case before deciding what the “story” is. If you send over a 100-page complaint or a 50-page brief, your audience is going to form perceptions based on the first two or three pages. Therefore, distilling the essence of your client’s case so that the storyline is instantly understood by outside audiences is often the only way to ensure the strengths of your argument and your client’s position are understood. In effective litigation communications, you want the right narrative firmly cemented in the minds of the stakeholders who will influence perceptions regarding the legal dispute. You want it repeated; you want it understood. It becomes the shorthand through which public audiences understand what is happening and the client’s position. We often call this establishing the “mantra of the case.”
Search Engine Optimization (SEO), Case Websites, and other Internet-based Strategies
Given the rise of social media and the Internet as a primary driver of public opinion, Search Engine Optimization (SEO) is now integral to the practice of litigation communications. SEO is a complicated technical process through which news stories and websites achieve better ranking over time on Google and other search engines. Algorithms that determine which websites appear on the first page of Google search results are complicated and ever-changing, and ensuring that positives rise and negatives are pushed down can be complex and tedious work involving the selection of keywords, incoming and outgoing links to the website, the updating of stale content on the site, and a host of other factors. Over time, proper SEO can be a critical element in addressing untruths and distortions in public perception. Litigation communications consultants need to have the tools and technical skills to ensure the right narrative is represented—one that advances both the client’s overall reputation and their position in the case.
Similarly, a trend in recent years has been the creation of stand-alone case-related websites—or the creation of a microsite or dedicated section within a broader website—to deliver key information directly to the audiences interested in your case. Working with the right litigation communications consultant, the legal team can set up a site for case documents, statements of the parties, press releases, fact sheets, and all the other information that helps audiences form proper perceptions about a particular legal action. Over time, a well-executed case-related website becomes a key resource for media and other stakeholders who want to gain a full understanding of the facts, legal issues and client’s position. In addition, such a site can provide the raw materials for social media posts that will help drive the conversation regarding your case in the right direction while positively impacting SEO. Indeed, for media and other key public audiences, the absence of such well-managed information about the case or controversy can be the cyber-equivalent of a curt “No comment.”
Finally, effective media and social media monitoring can ensure that the client and legal team understand how a case is being perceived and, therefore, the best manner of response. Unfortunately, most media and social media monitoring in corporations is designed to measure brand impact and other broad marketing metrics, and not the impact of public perceptions of litigation and legal issues. For a litigation public relations program to be effective, media and social media monitoring must be tailored to the elements and narrative most important to managing the case. This often involves a human touch to monitoring, rather than passively allowing software to deluge legal and communications teams with a proverbial firehose of monitoring data.
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.
About the Author
James F. Haggerty, President and CEO, PRCG | Haggerty LLC, New York
James F. (“Jim”) Haggerty, an attorney, communications consultant and author, is considered one of the global pioneers of Litigation Public Relations (or Litigation Communications, as it is also known). With more than 30 years of experience counselling corporate, nonprofit and individual clients in diverse industries, he has consulted on some of the largest cases of their kind in history—including the largest global criminal fraud case, the largest intellectual property case, several of the largest antitrust matters, and the largest case ever filed against the United States government.
His firm, PRCG | Haggerty LLC, has particular expertise in healthcare and pharmaceutical cases, technology, financial issues, intellectual property and environmental litigation. In 2019, PRCG formed PRCG | Sports, a sports public relations brand that has experience in investigations, regulation, legal issues related to governing bodies, and litigation public relations and communications.
In 2017, PR News named Jim one of the “50 Game Changers of PR” for his work as a pioneer in the field of litigation communications. He is also among the leading authors in the field. His seminal 2003 book, In the Court of Public Opinion: Winning Strategies for Litigation Communications, was called “the perfect handbook for this age of show trials” by the Financial Times, and was recently published in a revised Third Edition by the American Bar Association (2019). He is also the author of Chief Crisis Officer: Structure and Leadership for Effective Communications Response (ABA Books, 2017), which has been featured in the Harvard Business Review, Fortune and Entrepreneur. A paperback edition of Chief Crisis Officer was published in 2019 with a new Introduction from the author.