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| The impact of litigation on company reputation must be recognised |
| Winning the battle in the court of public opinion |
There is nothing like a juicy court case to get the pulse of news editors racing. People or companies spilling their guts in the court of law, as one journalist friend of mine tastefully put it, makes great copy.
What’s more, legal disclosure rules and other evidential requirements, as well as the trial process itself, ensure skeletons tumble out of the closet at a rate only matched by a low-budget horror movie.
Put simply, for any client involved in litigation, public relations is an issue. Some would even argue PR should be one of the primary considerations to take into account when issuing proceedings and in the conduct of legal proceedings.
But the media and legal worlds make uneasy bedfellows. The laws of contempt deal harshly with those who seek to undermine the judicial process through publication of material that may distort or influence the outcome of a trial. And many lawyers simply don’t trust PR men and women.
This view is no longer tenable, however, for a litigation partner in a law firm, heading up an important case for a valued client. Media organisations now report the issues surrounding proceedings very early on, or even well before they start, whether the parties like it or not, and electronic communications mean that sensitive information can fly around cyberspace like confetti.
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| Reputation is the real asset at risk when a dispute looms. |  | | |
On top of that, there are now simply more media outlets, requiring a constant diet of ‘information’ to nourish the 24/7 news environment. And even if one of the parties doesn’t want the story to get out there, it’s often the case that the other does, and the story is then running.
So for most businesses and prominent individuals engaged in a legal case, it is not a question of ‘if’ but rather of ‘when’ the issue will see the light of day.
Reputation is the real asset at risk when a dispute looms. Law firms need to recognise early on the role that they can play in helping clients to consider the impact on reputation of litigation, and it is the job of PR professionals to point this out. Strong organisations will plan their response to a litigated matter systematically, measuring the objectives of any court action against the risks posed by entering into it.
Any law firm and client organisation discussing litigation strategy should devote attention to the communications strategy that will accompany it. The strategy should identify:
- the commercial objectives of the business
- who is responsible for issue management
- authorisation procedures and programme review
- a policy on ‘openness’ to the media
- the direct and indirect audience
- the messages tailored to each of those audiences
- the communications channels to be used
- the resources available to support communications activity (eg an external agency)
- a campaign timetable
- any costs associated with communications.
The adverse impact on an organisation’s reputation from proffering a glib ‘no comment’ statement to media seeking a perspective on a case is well-documented. Suffice it to say that a client who has the confidence to speak, even if it is in the most rudimentary terms, about what is at stake in its case, will come over as more composed, in greater control of its destiny and, if it is on the receiving end of proceedings, more trusted not to have done wrong.
Among the key issues in formulating a communications strategy are the roles of the lawyer and the media relations specialist. If a dispute is heading for court, or has already made its way there, the role of the legal adviser must be the primary one as he or she has to take responsibility for the consequences of the proceedings and must be bound by clear professional, ethical and legal duties.
Having said that, PR practitioners are bound by their own codes. The serious ones have obtained appropriate professional negligence insurance, and are, with appropriate selection by the law firm or client, experienced in communicating in a climate of litigation.
Legal strategy should always be tempered or leavened by the communications issues that will arise from pursuing litigation. If I have one criticism of litigators, it is that many, in their determination to succeed, pursue a heads-down, linear and largely tactical approach to the case.
For reputations, it’s often the helicopter view that counts. Look at the fall-out from the collapse of international bank BCCI in 1991, when the auditors pursued the Bank of England. When the marathon litigation fell apart, the judge spared no one among the plaintiffs and their legal and PR team from criticism.
| Legal strategy should always be tempered or leavened by the communications issues that will arise from pursuing litigation. | |
Yet, because so many litigators still harbour doubts about the possible role of communications in their cases, there are still significant differences of view about the legal position of PR advice and media relations in litigation.
There are two areas to look at here. First, does the cloak of privilege extend to the PR person advising on the case? I have had serious lawyers advise me in every shade, from ‘yes absolutely’ through to ‘no, not all’, with a variety of hues in-between; the cautious will seek to qualify every internal PR advice as privileged and confidential and an item of attorney to client advice, simply by copying in the lead lawyer on the case.
Second, are the particulars of claim a public document and can they be distributed to the media? This is important, particularly in light of recent changes to claim details and because it is these particulars which will often be the first thing to get a journalist’s juices flowing on a case; yet I've heard views
from 'yes, once they're filed', to 'only if the journalist asks for them’, through to ‘only if the journalist obtains them himself or herself’.
As things stand, it is for the legal team and the client to take a view on these sorts of fundamental, operational questions very early on, as they will influence the nature of the media relations campaign that can underpin any court case in the client interest.
Take one recent piece of mega-litigation; the negligence claim by British insurance company Equitable Life against its former auditors, Ernst & Young. The main claim collapsed in 2006 in spectacular fashion, as this was dubbed the biggest ever piece of civil litigation.
It was clear from the media surrounding the case that Equitable had taken a very aggressive stance early on, publicly threatening the livelihoods of the partners in Ernst & Young with the scale of the claim. Ernst & Young’s apparently low key stance before the trial begun switched quite dramatically as the case opened with meticulous media presentation of the arguments and the issues at stake, all the while ensuring that nothing said could offend or disrupt the primacy of the trial process.
As the force of the arguments bore down on Equitable and the auditors’ litigation strategy bore fruit, the media coverage increasingly drove itself towards the inevitable conclusion: the action was not going to succeed in the courts.
This case provides us all with the single object lesson that we all should bear in mind when it comes to litigation PR: you can’t spin your way to victory in a bad case.
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Jon McLeod, chairman, legal and public affairs practice, Weber Shandwick in the UK
Reproduced with the kind permission of PSMG Magazine
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