“In Dispute: Reputation in litigation” – Maltin PR and CMS inaugural webinar video and transcript in full
On Wednesday 22 June 2022, Maltin PR and CMS hosted a joint ‘In Dispute’ webinar, focusing on the issue of managing reputation during litigation.
The event was held at CMS, with many people attending in person and several hundred joining online. It was chaired by Clive Coleman, Senior Partner at Maltin PR and former BBC Legal Affairs Correspondent. The panel comprised CMS commercial disputes Partners Tamsin Blow and Louise Boswell, together with Maltin PR Managing Partner and litigation PR expert, Tim Maltin.
The discussion also featured three short films created by Maltin PR for CMS, explaining different aspects of reputation management during litigation. A video of the panel discussion, together with a full transcript, and featuring each of the three films is set out in this blog.
Litigation is as capable of enhancing the reputations of individuals and organisations as it is of damaging them. With journalists sending in copy and live tweeting from court, both of these things can happen at breath-taking speed. Information that emerges during the course of litigation, from before the issue of proceedings to after the judgment, has to be managed with the greatest skill and care. It is a key task which is now at the centre of high profile and high value litigation.
Watch the panel discussion below:
Transcript of the panel discussion, including the videos shown during the event:
Introduction by Clive Coleman
Hello, and welcome to the first, the inaugural In Dispute Webinar, a collaboration between CMS and Maltin PR. I’m Clive Coleman, former BBC Legal Correspondent, and now Senior Partner at Maltin PR. Our subject today is Reputation in Litigation. Think of litigation as a kind of elegant bucket, full of information, but full of holes out of which information can spurt at almost any point in the life cycle of a case. And if that information isn’t dealt with adequately, the reputational damage that it can cause can be catastrophic. In modern litigation, there are two battles. The battle in court on the law and the facts, and the battle in the court of public opinion, and your client will want you to win both of those. Now, before I introduce our panel, Maltin PR and CMS have made three videos on various aspects of Reputation in Litigation. So let’s have a quick look:
To examine Reputation in Litigation, we have assembled a distinguished panel. Tamsin Blow is a partner in the Litigation and Arbitration group at CMS, specialising in commercial media and public law dispute resolution. Louise Boswell, also a partner at CMS and a solicitor advocate advises on commercial disputes and disputes risks, and litigation PR expert, Tim Maltin, managing partner of legal and litigation firm Maltin PR.
So let’s begin. Okay. There are the big reputational cases. The Depp vs Heard, the ‘Wagatha Christies’, but surely most cases are just about the facts and the law. Tim Maltin, why should the lawyers and why should the parties in the case be worried about reputation?
Tim Maltin
Well Clive, very often the matter value itself is actually quite small compared to the reputational damage that can be done to an organisation. So the matter value, for example, might be a million pounds, but it could be a corporation of a billion pounds, where if really bad information comes out in the course of the court case, then in fact the share price could collapse or something like that.
Clive Coleman
Okay. So reputation is obviously critical. How critical is it, in the overall litigation strategy, deciding whether to bring a case in the first place, to defend it and what issues to fight?
Louise Boswell:
Well, quite often, for example, as a claimant, you’ll want to be thinking at the outset before you even bring a claim do you want it? What information is going to come out there in the public domain that perhaps reflect badly on you? And that will inform on what issues you might want to bring in the litigation, whether you want to bring an action at all. Now as defendant, obviously you might not have a choice. But as a defendant, you should be working with your legal team and your PR team to discuss what information might you want to bring to the case? How’s that case going to be reported publicly? So you can try and mitigate those risks up front.
Clive Coleman
Tamsin, to what extent is litigation a really effective vehicle for attacking either the reputation of an individual or an organisation?
Tamsin Blow
It can be very effective. And that’s because when allegations are made in the context of litigation, the person making the allegation has absolute protection from defamation proceedings in respect of what they say. So they can say before the court things which they absolutely wouldn’t say elsewhere. And that protection goes further, because it allows other people to repeat those allegations. And provided that they’re giving a fair and accurate summary, they’re also likely to be protected. It also comes through in much more nuanced ways as well. Because you can think around if you’re being very aggressive, what disclosure requests you want to make from the other side that you think will lead to embarrassing material from them. So, it really can be a very effective vehicle.
Clive Coleman
So if you want to do someone over, litigation can be a very, very effective tool.
Tamsin Blow
Absolutely.
Clive Coleman
Louise, I used that rather ropy analogy of the bucket and water spurting out. But if we look at the architecture of a litigation, just run me through the kind of pinch points, the key points at which information can leak out and enter the public domain.
Louise Boswell
There are a couple of trigger points. So the first one obviously is when you issue the claim. Once the defendant has acknowledged that claim, those papers that you’ve lodged with the court are public and anyone can access them. And then there are a few in the court process where information can come out. So for example, at interim hearings where, ostensibly, they might just be an innocuous procedural discussion about what’s supposed to happen towards trial. But in fact, there can be facts that come out during those hearings that are of great public interest.
Clive Coleman
Now we noticed this at the BBC, because in the latter part of my time there we were getting emails from solicitors and from PR professionals saying, “This seemingly innocuous case management conference, well actually come along because Mr. Barrister X is going to stand up, and he’s going to say things in court that are actually very interesting.” And, of course, they were reportable.
Louise Boswell
Indeed. And that continues throughout the story of the case, if you like. So, the parties will give disclosure – and documents in English law if they’re relevant – should be disclosed. Even if they present you in a bad light, or say things that you don’t want people to know about your business. And then you get witness evidence. So, by the time you’ve got to trial, you’ve got documents, you’ve got witnesses that might say something under cross examination. All of that stuff then comes out in the public domain if it’s referred to at trial.
Clive Coleman
So, Tim Maltin, you’ve got to be on the ball the whole time during all the life cycle of a litigation. How do you deal with the press at all of those critical pinch points to make sure that your client’s story is told in the right way?
Tim Maltin
The key thing is to be prepared, and the make sure the journalists understand the narrative of the case that you’re portraying, and that they’re well briefed. For example, it might be a CMC which the press might think is going to be quite boring, but in fact we can explain to the press that something might be coming out, or that we’re expecting something to come out at the CMC and they should turn up, so that when they report on the case they understand how all of these small pieces of information actually might be a big deal in the overall narrative. And there are little hints and tips. For example, it’s a good idea to sit at the back of the courtroom near the door so that once the journalist has heard the opening argument, they might head back to their office to write something up, and you can actually just follow them out of the door and have a chat with them in the corridor outside and make sure that your story arc is the one that’s going to make the headline.
Clive Coleman
And you’re marking their card for key words and phrases in skeleton arguments and that kind of thing. But you’re not there simply to brief them on your client’s case, because wouldn’t that appear a bit lopsided?
Tim Maltin
Absolutely right. So, journalists trust good PR people to give them the whole story of the case. So for example, if we just gave our side, then it would encourage journalists to go to the other side. Whereas if we’re actually giving them both sides’ arguments, and pointing out the main newsworthy points on both sides, then they come to us as a trusted person to explain the whole narrative of the litigation.
Clive Coleman
Okay, well now we’re very lucky too, because we have a star guest in the audience. It’s not Rebekah Vardy. She was a little busy, but it is the QC who represented Rebekah Vardy, Hugh Tomlinson, who’s a veteran of many high profile cases. Hugh, just from your point of view, tell us how the reporting of cases has changed over recent years?
Hugh Tomlinson
Well, at one time, there were specialist court reporters who sat in court and reported in a fairly accurate way what was going on. I mean, as you know Clive, those have basically disappeared over the last 20 or 30 years. You now get a strange collection of people. I mean, the Vardy case had an astonishing number of journalists in court and in the spillover court, not many of them employed by media organisations. A lot of people who were blogging and doing all kinds of internet publicity about the case.
So, the cases have become much less professionally reported and the quality is, shall we say, variable? And the thing that particularly struck me about the Wagatha Christie case was despite having 20 or 30 reporters there every day, virtually none of the legal arguments were reported at all, but there was a lot of reporting about the handbags carried by various people in court. No comment on my handbag at all.
Clive Coleman
Can I just ask you also, insofar as information can come out in court and go viral instantaneously almost, are judges a little more willing to provide protection to the individuals involved, even if that means somewhat rowing back on open justice principles?
Hugh Tomlinson
Well, it used to be said that lawyers lived in the 18th century. We’ve made massive progress. We are now up to about the 1990s. So judges are not really very switched on to social media issues and I don’t think judges… Judges read The Times and The Guardian and watch the BBC, they don’t follow the blogs and social media. They will catch up because judges are getting younger and they will catch up. They’re more socially media savvy. At the moment, I think they’re not giving special protection to people because of social media. It will come. And there’s an interesting recent trend, as something was just mentioned earlier about giving witnesses who are going to be criticised the opportunity to respond before criticising them in judgements. So there’s a certain amount of protection being given, but the trends are very, very slow.
Clive Coleman
Okay, interesting. Because with the lightning speed of technology and tweeting and blogging and all the rest of it, our judges are trailing in the wake of that. Now look, it’s not just the reputations of the parties involved in the case that are vulnerable. Non parties, the lawyers even in cases, can find themselves under the spotlight and indeed under attack. Is that something that’s increasing? Here’s CMS litigation partner, Dan Tench.
Clive Coleman
So Tamsin, tell me how can you push back if you are a lawyer or a third party who finds themselves on the wrong end of a judgment by Mr. Justice ‘Grumpy’ and it’s potentially ruinous to your reputation? Is there anything you can do?
Tamsin Blow
Well, as Hugh said, we are starting to see some movement in relation to that. It’s slow, but there is some movement. We now have authority which says that what a judge should be doing is, they should be looking and saying, is it actually necessary to refer to that person who isn’t a party, whether it’s a lawyer or a witness? Is it relevant to the judgment? Is it in line with the issues in that judgment? If it is, then is it a matter where actually it’s appropriate to give anonymity to the person that they’re talking about, but still to give the information? Or if it’s necessary to give their name, then to put the allegation to them in advance and to give them a proper opportunity to respond.
And you would hope that process is now being followed and so people are given the opportunity. Obviously, once a judgment is published, much of the damage is done. There is now the possibility of taking it to the Court of Appeal, but really you want to try to address the issue at an earlier stage. Trying to ensure that if you think there’s going to be some criticism, that in some way, you are able to get hold of a copy of the draft judgment, which is often embargoed. So that’s going to involve rooting through the judgment to make sure it is okay.
Clive Coleman
So if you are involved in a case and the man is being played rather than the ball, you can see the writing on the wall, the judge has taken against you. He’s giving you a really hard time if you are one of the instructing solicitors, for instance, in the case. What do you do? Do you instruct counsel on your own behalf during the case itself to make applications to the judge to say, well, look, things seem to be happening here and I just want to remind you of the process. Does that actually happen?
Tamsin Blow
I think it hasn’t happened a lot historically, but it needs to start happening. And that’s because if they’re playing the man not the ball, for the lawyer who is in that position, unfortunately, they’ve got a toss up of a very difficult position. Having to act in their own client’s best interests, but then obviously an attack is being made on them effectively, personally, or against their firm. And so really, you need somebody who is outside that situation, who has the independence of being appointed to represent you to take that forward, albeit that they would need to do it consistently with the fact that what’s done needs to be in the interest of your client.
Clive Coleman
Well, that all sounds very messy and complicated and difficult to me. Tim, what can someone do if they’re a third party that they’re caught up in a judgment, which is very damaging to their personal, their professional reputation? What can they do from a PR, as opposed to a legal point of view?
Tim Maltin
It’s often quite good to get out on the front foot. So if they actually just talk about it, they could have an interview lined up. Obviously, the best thing is, if they’re a party, they will already have seen the draft judgment, they can try and prevail upon the judge about the seriousness of one word here, and one word there and how it can really affect them disproportionately. So hopefully, judges would actually temper that, but that’s only for the parties. But as you say, if you’re a third party and it suddenly hits you, then I think the best thing to do is actually to go on the front foot and explain your side of things.
Clive Coleman
Okay. And what about just doing nothing? Just hoping it’ll blow over, and maybe you’re going to have a huge success in two weeks time and just hope that everyone will focus on that.
Tim Maltin
There absolutely is an element of that, certainly for lawyers. So for lawyers, obviously they might have a bad day in court, something bad comes out, but then they might be involved in a really big trial that they win down the road, and people’s memories are short to an extent. So I would say to people concentrate on your next success. Concentrate on the positives of what’s coming up and how you control your media image going forward.
Clive Coleman
And shunt anything negative down to what? Page four or five of Google, if you can.
Tim Maltin
Absolutely right. So I think with positive stories people don’t look beyond the first page of Google basically. So once you’ve got 10 other things from your next case in there that are all positive, people aren’t going to see the stuff on the second page.
Clive Coleman
All right. Let’s turn now to how the media and PR professionals work together. Just have a look at our next film:
Tim, I’m going to come to you again there because some people might be really surprised to hear that far from the press being bothered by lawyers or PR professionals getting in touch and informing them, supplying them with documents, they love it because they don’t get a lot of help elsewhere. So that gives you presumably a great opportunity to be able to tell your client’s story.
Tim Maltin
Absolutely right, Clive. Most legal cases, as you’ll know from your reporting days at the BBC, are extremely complex with hundreds and hundreds of pages of documents. And yet journalists have got to get a story out sometimes within minutes of a judgment or a hearing. So what we are able to do is help them by highlighting the key passages and really giving them the confidence that these are the main points and that saves them a lot of time. And it actually makes us quite indispensable to journalists for that reason.
Clive Coleman
Tamsin how do you, from the legal side, how do you work with the legal PR and litigation PR professionals and with the press directly?
Tamsin Blow
Very closely. You need to make sure that you are preparing well in advance of anything happening. It’s no good to be contacting them once the hearing has taken place, there’s some positive or negative publicity for either side and then you’re seeking to amend things. You really need to, particularly if you’re on a larger case, one that might attract attention, there’s got to be a close working relationship throughout highlighting in advance when there’s going to be pinch points. And even if your client doesn’t want there to be publicity, you need to be prepared for the fact that it may follow in any event. And so it’s all about being ready to be reactive to that as well as proactive.
Clive Coleman
Now let’s assume that we’re in the thick of a big litigation, what protections are there available to contain information and to protect the reputations of the parties? What does the law provide by way of protection?
Louise Boswell
Well, certain protections are offered by legal privilege. So generally speaking, privilege is a pretty complex area in its own, right? But if there’s information that relates to the giving or receiving of legal advice from your lawyers, or if it was prepared with the primary purpose of litigation in mind, those kinds of documents should be privileged and therefore protected from being released either to the other side, either in the court or publicly.
Other instances, for example, are things like you might be able to redact information before it’s provided to the court and becomes available publicly. But that’s quite tricky because quite often that irrelevant information is hidden amongst lots of relevant information in the documents. So it can be quite a time consuming, costly exercise of manually sifting through to make sure that potentially damaging and irrelevant information isn’t leaked.
Clive Coleman
Well, let’s assume that none of that works, for the moment Tamsin, and I’m really worried about my reputation. Can I just say to you, “Well, look, can you ask the court if I can just be anonymised in these proceedings, and then nothing will come out?” Or if it’s damaging, they won’t know who it is. They won’t know who’s being referred to.
Tamsin Blow
Well, we hear a lot about super injunctions and the idea that people can be anonymised or they’ll even be proceedings, which are taking place where nobody hears about them. And we hear a lot of that about social media. The starting point is that there needs to be open justice and that people should have access to what is going on before the court. There are then various protections that you might be able to get. So the parties might be able to be anonymised. All or part of the court file might be se sealed so that third parties can’t access it. There might be private hearings or reporting restrictions on hearings.
But because you have the starting point of open justice, you need a reason to deviate from that. There may well be a very good reason. If the whole point of the proceedings will be defeated by there being open access to the names and details of it, for example, in breach of privacy or confidentiality proceedings, then that works in your favour to be able to ask for some form of protection. But it’s about making sure that you ask for the right tailored and proportionate protection. So for example, in a commercial case, that might be about getting confidentiality rings in place for certain specific pieces of information, witness statements, where most of it is available, but there is a sealed schedule. It’s quite a detailed and nuanced job to try and protect things rather than a simple blanket.
Clive Coleman
Sure, sure. Naive question on my part. All right, well, let’s assume that the armoury of legal protections are unavailable to someone like myself. Then I’m going to go to someone like you, Tim. And I’m going to say, “Look, tell me and show me how we can maximise the good information that comes out during a litigation and how we can minimise the damaging stuff.” Tell me how you do it.
Tim Maltin
It’s about creating a narrative. So what you want to do is, as you say, minimise all the things that are not going to be so good for your client and maximise those that are. So for example, Hugh made the very good point that a lot of the reporting in the ‘Wagatha Christie’ case was more about handbags than legal arguments. And it’s sometimes the case that in an opening argument, for example, while the press is very, very attentive, it can be important, not just to have all the absolutely key legal arguments in there, but it can be important to mention some of the more legally incidental points that are very important to the press so that your client’s point of view is actually maximising the press as well as the judge’s attention.
Clive Coleman
And I’ve heard you talk in the past about how sometimes lawyers, particularly when they’re outlining a case to the court, and that might be at the point where the most journalists are actually present, might leave their best points, their big guns to the conclusion, but that might not work in PR terms.
Tim Maltin
That’s right. Lawyers are trained to build an argument up to a conclusion, and the press works the exact opposite way. They start with the headlines and the conclusion, and then they might have some room for some padding copy later on. So we do tend to ask lawyers and barristers to sort of reverse their arguments so that they start with the meat, the really sexy stuff, right at the top.
Clive Coleman
I wonder if they get it. Hugh do you get that? Do you ever turn things on their head just to ensure that you’re not leaving your best points to a point in time when the press have left the court and they’re going to be wasted somewhat?
Hugh Tomlinson
You always begin with the good point.
Clive Coleman
If you have it.
Hugh Tomlinson
I always have it.
Clive Coleman
I know you do. You do. All right. Okay. Well, thanks very much for the moment to our panel, we’re going to take some questions from our audience live here at CMS, and also from those of you who are watching and who have been kindly sending your questions in. Let me start with Amit Tyagi. He’s a partner at CMS in the disputes team, specialist in insurance. Now we know, Amit, that a lot of litigation is underwritten by insurance. People won’t enter litigation unless they have that reassurance of insurance, but how does insurance operate in relation, not just to the pure litigation, if you like, but to the reputational issues that might blow up in the course of it.
Amit Tyagi
It’s a good question, Clive, and the answer is slightly nuanced. So on the one hand, you can get insurance coverage for proactive steps in trying to preserve your reputation as a result of a litigation, and that will typically involve providing cover for people like yourselves and Maltin PR to come on board and help manage the message because you’re aware that there’s going to be a risk that your reputation will be damaged as a result of the litigation. But on the other hand, where it typically falls short is the type of huge losses that a business can suffer as a result of the damage. That typically won’t be covered under a policy.
So we talked earlier about the share price dropping for example. That’s really difficult to quantify, and how do you link that to being caused by the particular reputational harm that you think you’ve suffered in a case? So that’s where insurance coverage is more difficult. That’s not to say that people aren’t trying to find a way to fill that gap. What that means in practical terms, I think, is you’ve got to engage early with people, you’ve got to look at your insurance cover and see, do I have some ability to find some experts to help me manage through this? And they’ll work closely with your lawyers, which are probably also being paid for by the insurers, to come up with a strategy to try and minimise the harm that’s caused by the litigation.
Clive Coleman
And let me just ask the team up here. Louise, if I can ask you, just paint a picture of the ideal strategy. How closely are the litigation PR team dovetailing with the legal team? Do they all meet the client at the same time? Do you have conferences together throughout the whole process? How does it work?
Louise Boswell
Well, you obviously need to work very closely with each other, and ideally, as early as possible. But there are a few things you probably need to navigate during that relationship, and one of the prime things I can think of for example is privilege as we discussed earlier. Because what you want to be doing is making sure your client is happy with those discussions taking place, potentially including privileged information about the weaknesses in your case and how they might be exploited when you talk to your external advisors.
Clive Coleman
And Tim, if you’re talking about a billion pounds being wiped off the share price of a company, what efforts do you go to to persuade the legal team that actually, you need to be embedded with them right the way through the journey?
Tim Maltin
That’s right. It’s about really planning early with the client and becoming almost a part of the legal team at a very early stage so that you’re getting to know the barristers very well, you’re getting to know the solicitors very well, and you really build a trust relationship between the client and the PR and the legal team so that you can be very nuanced. And let’s not forget that, increasingly, large clients will have multiple litigations on foot, possibly in many jurisdictions. And sometimes, actually, PR and reputation managers can actually help with where certain information is going to be litigated or holding back on certain things. It is quite a complex patchwork and reputational considerations are as important as the legal strategy itself.
Clive Coleman
Okay. Let’s take some questions that have kindly come in from online, directed I think to the two lawyers on our panel. If you think that the other side is leaking your confidential information which has been provided on disclosure and that’s having a reputational effect, what steps can you take? Tamsin?
Tamsin Blow
So the starting point is that they shouldn’t be leaking that information because material which is disclosed should only be used for the purposes of the proceedings.
Clive Coleman
Does it happen?
Tamsin Blow
Of course it does happen, lots of people do things that they’re not supposed to do. And so as a starting point, I would be thinking about raising it with the judge who was dealing with that particular case if there was an opportunity to do so, if you’ve got an assigned judge, if you’ve got a hearing where it would be appropriate to do it. Ultimately, and depending on the level of sensitivity of the material, you might actually be seeking an injunction in order to prevent them from disclosing that material for it to be used more broadly.
Ideally, what we would’ve done would’ve been to make sure that we’d taken steps for anything that super sensitive in advance. So the confidentiality ring I referred to earlier, if you’ve got commercially sensitive information that in fact you don’t even want the other party to see, a ring could be put in place so that their lawyers can see it for example, or named individuals at the client, their in house lawyers, for example, who aren’t going to be as close to the commercial side, and that all seeks to reduce the risk that that’s going to end up being leaked.
Clive Coleman
And Louise, your take on that? Do you echo all of that?
Louise Boswell
Yeah.
Clive Coleman
It must be very annoying when it happens.
Louise Boswell
It is, and it’s an important point that Tamsin makes, and strictly speaking, you’re only supposed to use the information for the purpose of the litigation. But of course, once you get to trial and it’s all out in the public domain anyway, it’s fair game.
Clive Coleman
Okay. Another question that’s come in, what differences are there from a reputation perspective in conducting your dispute in an arbitration as opposed to litigation in court? Again, one probably for the lawyers, but Tim, you may have view. We’ll come to you in a moment.
Tim Maltin
Well, arbitrations are private and secret, so if you are litigating in the commercial courts, it will be open justice and it will all come out, and if you do want to keep things as private as possible, then arbitrations are the way to go.
Clive Coleman
And our lawyers?
Louise Boswell
It seems right. I mean, under English law, there is this implied duty of confidentiality and arbitration, and the starting point is therefore that it’s confidential. Quite often, parties will want to make sure that’s an expressed duty, either in what they’ve agreed or depending on the arbitral rules that they’ve deployed for the purpose of the arbitration, but there are a few exceptions to that. So you can’t always guarantee that it’s confidential. If you’re seeking to challenge the award, for example, or there’s some issue with the arbitrator that’s been appointed or an enforcement issue, there are instances like that where information that was confidential in the arbitration can come out.
Clive Coleman
Okay. A question about social media and how that has really changed the landscape. We’ve touched on it somewhat, Tim, but from your point of view, it must be a bit of a nightmare that we now have citizen bloggers. We’ve got, as Hugh said, many of the journalists, in inverted commas, who were sat in on the ‘Wagatha Christie’ case, were live tweeting from court, so things can happen incredibly quickly. Does that make your blood pressure boil?
Tim Maltin
I think it is a new challenge when everyone’s a blogger. It’s almost like everyone’s a publisher and everyone’s blog is a little newspaper, but it actually works to advantage as well because one can actually work with certain bloggers and other information aggregators to actually continue to amplify your client’s message. So I would say it presents opportunities as well as challenges.
Tamsin Blow
All I was going to say, on the opportunity side, I think we increasingly see clients and opponents actually trying to show a bit more personality through social media about the litigation. It used to be that the statements that you might make about it might be towards the drier end, but people are really trying to give their corporate personality to how they talk about the litigation, and social media helps with that.
Clive Coleman
And there was a really interesting piece by David Sillito, the BBC correspondent who covered the Johnny Depp and Amber Heard case in the States. So it’s a different jurisdiction, but he did a five minute piece on Radio 4 about the coverage on Instagram. And I think the hashtag #JusticeForJohnnyDepp had some unbelievable number of views and hits. Running into the tens or no, no, billions actually, it was running into the billions. So you’ve got to have an eye on the media landscape, across the board. It’s not just The Times and the FT.
Tim Maltin
That’s right. Although the main papers do still lead the narrative and what you find is, with a lot of the social media posts and things, they will hammer on one particular point and just keep pushing it. But you’re right, that did work extremely well for Johnny Depp. And that’s a very good example of where his franchise with Pirates of the Caribbean, his brand as an actor, is worth billions. Whereas the matter value itself was only a few million pounds. I think $11,000,000 or something was the eventual award.
Clive Coleman
We’ve got Sian Harrison here, who we saw on our clip just a little earlier, legal editor of PA Media. Sian, just wanted to get you to talk to us a little bit about where the mainstream media sits in relation to the Twitter sphere, the blogosphere, and also how important it is for you to work with these guys, the lawyers and PR professionals.
Sian Harrison
Thank you Clive. So first you asked about social media and my general policy is to try and ignore it as much as possible.
Clive Coleman
Can you afford to?
Sian Harrison
Well, yes, because as you know what we do at the Press Association is very quick short takes from court on a case of the sort of scale of interest of ‘Wagatha Christie’ or Johnny Depp, for example. So that is for subscribers, media organisations who subscribe to our news wire, so we don’t really have time to look at social media. And also I think that it’s best to have your view of the case really formed by what unfolds in court and not what happens on social media. I think that’s a quite important line to keep.
However, obviously we do sometimes, report on what is unfolding on social media as well. So we can’t ignore it completely.
Clive Coleman
It becomes it part of the story.
Sian Harrison
It does, yes.
Clive Coleman
People become obsessed by a particular aspect of a case, then you can’t do anything other than report it.
Sian Harrison
No, indeed, and sometimes we get reaction to judgments, for example, on Twitter first now, before we have an email from a PR or whoever might be responding to something. So it is important that we keep an eye on it, but from a distance.
Clive Coleman
How important is it to liaise with the lawyers? We touched on it in your clip, and I was, when we spoke for that interview, I was surprised. I was thinking you’re very busy in your office and having lots of calls from lawyers and litigation PR professionals is going to get in the way of you doing your job. But that just isn’t the case, is it?
Sian Harrison
No, we tend to get information on email, because we’re obviously in court most of the time and it’s quite hard to reach us on the phone. But it’s just becoming more and more important. We’re not quite extinct yet, like Hugh suggested obviously, but there are just not as many specialist court reporters as there once were. We have a team of four who cover the High Court, Courts of Appeal and the Supreme Court between us and occasionally some of the tribunals. So there’s a lot there and the lists are very, well not very informative, it’s a name against a name. We can have an educated guess, but without the help of lawyers and litigation PR people, we would simply not know what was, as I said in the clip, not know what was going on most of the time.
Clive Coleman
So you’ll take the help from wherever you can get it?
Sian Harrison
Indeed.
Clive Coleman
All right. A question from our online audience, so perhaps one for Tim. Tim, how do you know when litigation PR has been successful or how do the public know?
Tim Maltin
The most successful uses of litigation PR is probably where you can’t see the strings and people don’t really realise that there is a litigation PR campaign on foot. I think examples where PR is extremely important is obviously in group actions, where you can use PR as a tool to take many different voices, point them all in the same direction, have them hammering on the same message. And obviously be able to then sometimes – frighten is the wrong word – but really make a big corporate, who those claimants might be going against, really worried about taking the litigation all the way. And often PR can actually result in a settlement, if it’s done right.
Clive Coleman
And Tamsin, a question for you. Do clients get it with litigation PR? Because it’s been a big deal in the states for a long time, in part because they have juries sitting in civil cases, but is it now firmly established as part of the litigation landscape? Do clients buy into it, that actually they’re not just going to need their legal team, they’re going to need a litigation PR team working closely, running alongside.
Tamsin Blow
We see the full range. There are certainly some very sophisticated clients who absolutely get it. That’s the sort of clients Tim was talking about, where they’ve got multiple bits of litigation going in multiple jurisdictions and so they understand the need for it. We still do get a large number of clients though, where it’s very much a reactive, “Oh, something’s happened,” and then “How are we going to deal with it?” And so we find that actually it’s us as the lawyers who might be flagging in advance. Have you briefed your in-house people? Do we need to bring in external people in in order to make sure that this is managed properly?
Tim Maltin
The point there, and we heard it from the Press Association as well, is when news is breaking, you need to get to the metaphorical microphone within minutes to get your story out there. So if a client is trying to do a reactive strategy, then the other side is going to get in there first. So really they’ve got to be proactive, at least preparing everything to be ready, so that as soon as the other side comes back with a comment, you can be reactive – but in a proactive way! I’ll explain what I mean, as this is a rather important point: good publications will always reach out to the other side for comment, and that’s your early warning system, then you know. So for example, the client might say, “If nothing comes out, I don’t want to say anything, but then you know if something is coming from the other side, because the journalists will ring you and give you an hour or a small window for comment. And it’s at that point that you have to have everything prepared and ready, and then you can turn the narrative around and actually really smash the other side out of the park in what comes out.
Clive Coleman
So that’s why you need to be embedded really from the get go?
Tim Maltin
Absolutely.
Clive Coleman
Okay, so we understand that. But Louise, how do your clients react when you say to them, “Look, you’ve come to CMS,” and you’ve outlined your charging structure to them, and say “In addition to this, you are also going to need a litigation PR team” and their jaws presumably hit the floor, do they? At some point they think, “well, shouldn’t the lawyers be able to do all this for me?”
Louise Boswell
Well, it depends on the sophistication of the client and it depends on the sort of sensitivity, if you like. The nature of the information that might come out and how significant the risks are in terms of their reputation. And for smaller cases quite commonly the lawyers will help them craft the statements, because they might not have their own in-house legal team or even their in house PR team. So we will help them craft something that’s suitable that seeks to mitigate the kind of risk that the other side might say “Well, that’s wrong,” or that’s somehow not an accurate portrayal of what’s going on. In larger cases or in instances where you’ve got a global company where it’s actually a global issue, that reputation that might be at stake, then the costs are warranted because that actually may be, as Tim said right at the outset, that the value of that may be worth more than the case itself.
Clive Coleman
And do you notice any sort of meaningful distinction between in house company organisation PR teams and independent litigation PR teams? The reason I ask that question – I’m not trying to get work – is that the in house teams will be dealing with a range of PR for the organisation not narrowly focused on the litigation.
Louise Boswell
That’s right. I think you’re right in that sort of reputation from a litigation perspective is a very different beast. It’s not something that you can sort of proactively write a nice little paragraph and that’s it, because it’s so fast moving that paragraph might be made redundant by what the other side said in court that day. So I think you do need to employ a much more flexible strategy when it comes to litigation and ideally have someone that’s experienced in that kind of more fast paced work, than perhaps someone that’s used to drafting press releases for specific events in the company calendar, for example.
Tamsin Blow
The ideal situation can actually involve somebody, an internal PR, plus an external PR. Because the internal PR will obviously be deeply embedded in what the important messages for the company are and what their pinch points are. But the external PR can bring that real expertise from a litigation perspective, and so creating that beautiful working relationship and together with the lawyers. It’s challenging but that’s really important.
Clive Coleman
Okay. Can we go back to Hugh for a moment? Hugh, just tell us about your experience. Do you welcome working with litigation PR professionals? Or is it a pain, in that you feel you can kind of handle it all yourself?
Hugh Tomlinson
Well, as was said right at the beginning, in the case of many clients you’ve got two perspectives. My job is to concentrate on the judge and obviously, as Tim said, I like to put the good messages up front in my submissions and so on, because I take the view that some journalists are quite lazy and need spoon feeding. But you also need the other perspective and certainly, in those kind of cases, it takes a burden off me and off the legal team to have a litigation PR. Because they’re thinking about the issues in the wider PR battle and it takes a pressure off us.
And also, something which hasn’t really been discussed but what you also want from your litigation PR team are the people who know the journalists, who have the contacts, who can actually speak to the right people and who are trusted. Because I speak to journalists outside court and so one of the PA journalists I’ve got to know very well over the years. But I just don’t have the wide contacts and I think that’s really, really useful to have PR in the right sort of case.
Clive Coleman
You are pretty au fait with the way the media works, the media landscape, but is there an issue in the way in which lawyers and barristers think? Is there a different perspective so you’ll almost have to turn your skeleton on it on its head. Do you think lawyers generally are now so savvy in terms of the media, or do they really need the help that people like Tim can give?
Hugh Tomlinson
I think they certainly need the help. I do a lot of cases involving these kind of issues, but there are quite a few people who really have no experience of dealing with the media. No experience of presenting the case in a media friendly way and it’s really a really important for their hands to be held by someone who knows what’s going on.
Clive Coleman
And I’ve just got to ask you this, can barristers go too far in this direction? Do the Judges get savvy and frankly, a bit fed up, with barristers standing up, let’s say in a case management conference or whatever it is, quoting Shakespeare or the Bible and clearly dolling something up for the media?
Hugh Tomlinson
Well, it’s a very fine balance. You can go into court and you can have some wonderful media lines and you can sometimes see the Judge rolling his or her eyes, because they’re just thinking, “That’s for the media, that’s not for me.” And if you do too much of that then you alienate the Judge and when it comes down to it as a barrister, your audience is the Judge. Your audience is not the readers of the Daily Mail.
Clive Coleman
My favourite example of that was actually Desmond Browne. Whether he was doing it directly for the media, in the Ritz case that we saw earlier, who I think began one at CMC by quoting Tolstoy. “That every happy family is happy in exactly the same way and every unhappy family is unhappy in a unique way,” and it’s great, it’s great for the press. If you’re sitting in court and you get those kind of quotes, it’s fantastic. Great for your copy, but it may be seen by the Judge as showboating.
Hugh Tomlinson
I wouldn’t say that Desmond Browne would showboat in that way.
Clive Coleman
No I’m not, and for the film I’m not saying that either. I’m saying it was a wonderful reaching into a rich cultural hinterland that he had.
Hugh Tomlinson
Exactly. He likes those better quotations. Yes, there’s obviously a risk and it’s because we don’t have… When I started out we had juries in libel cases and so a lot more rhetoric that could be properly employed for the purposes of your case. But now obviously there are no jurors in civil cases in practise. So yes, you’ve got to be very careful as a barrister, and as a lawyer too. If the judge got the impression that the legal team was actually using the case to run a PR strategy, it would be very dangerous indeed. And I think people have got to be very, very careful about the different responsibilities they have. They’ve got to be very careful that when it comes down to running a legal case, you’ve got to run the legal case and not the PR case. Leave the PR case to the PR profession.
Clive Coleman
Well, sitting next to you is Dan, a litigation partner at CMS we saw earlier in the clip. Dan, just give us your take on how things have changed in terms of the importance of PR and the protection of reputation in modern litigation.
Dan Tench
Well, you’ve touched on most of the points already, I think but we’ve seen a decline in the circulation of the traditional print media. And so the significance of that in the public domain has reduced, and that’s been largely replaced by social media and there’s a completely different dynamic which then goes on in that way. Social media reporting of litigation is less constrained. It’ll follow the legal issues less literally. So that creates a very different dynamic, but I think the courts are responding too.
It’s very hard. In 50 years time, when we’ll be able to look back at the way the courts are responding and are they responding in a way which is more amenable to open justice, or more restrictive of open justice? Because I think there are different judgements at the moment which are going in different ways. Some prizing open even more the notion of open justice, others more amenable to greater restrictions. So, I think that in the course of trying to get a hang of this, different judges have very different instincts. But that really provides an interesting toolkit for lawyers, because if you know the law and you know the particular judge, there may be more things available to you to try and protect your client’s reputation.
Clive Coleman
And you’ve actually noticed some judges perhaps rowing back slightly on open justice principles, but in recognition of the information going viral, the kind of reputational damage that can happen almost instantaneously in litigation.
Dan Tench
That can happen, there isn’t really a body of authority in that way, but in individual cases you can see that and, certainly in terms of judges, in endorsing confidentiality clubs and the flow of information in that way. Then there is an amenability on the part of judges to restrict the flow of information. But in other cases it can be much harder.
Hugh Tomlinson
I was just going to make one point which hasn’t been mentioned. Which is in the last 10 or 20 years, cases have become very much paper based. Whereas 20 or 30 years ago, reporting on a case involved listening to what was said in court. It’s now the documents. If you read newspaper reports of many cases, they’re actually just quoting from the skeleton arguments. Those have become much more publicly available and so the contents of those have become much more important, in terms of how the case is understood by the public. So, it’s a good idea, boring though some of them are, for the litigation PR people to read the skeleton arguments and make any comments about the way that they impact.
Clive Coleman
And in any cases, help to draft them?
Hugh Tomlinson
Not to help to draft them, just to make helpful comments.
Clive Coleman
And again, we noticed this, that skeletons are absolutely critical and the key phrases, the key paragraphs, if they’re highlighted to the media, then that’s a very effective way, Tim isn’t it, of getting your client’s story across?
Tim Maltin
That’s right. Hugh’s job is obviously to speak to the judge. That’s what barristers are there for, but for PR professionals our judges – our bench if you like – is journalists and the public. So we’re there to present the case to journalists and the public, and the barrister team is there to present to the Judge. So the two work in parallel.