Maltin PR Overview of Litigation PR for Chambers Litigation Support Guide 2019
A legal strategy without a litigation PR strategy is unlikely to serve the client optimally, no matter what the result of the litigation. Today even the largest commercial litigation cases are merely one part of the overall strategy of the client in defending their assets and reputation.
Domestic and international clients enjoy the transparency of the London judicial system, but open justice brings with it PR challenges. Any journalist, or agent of the other side, can sit quietly in the back of the courtroom as detailed arguments are recited and witness statements read into the court record.
You must consider not just how your client’s case will play to the bench, but also how it will play in the wider court of public opinion, and how parts of it could be seized upon by the other side and made much of in this and other jurisdictions, in the global and trade media, to harm your client.
There is wide latitude to comment on active public court cases. The strict liability rule in Section 1 of the Contempt of Court Act 1981 “applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”, and “only if the proceedings in question are active at the time of the publication”. And “a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith”. Furthermore, “a publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.”
Reactive and proactive litigation PR strategies
Given the media interest around court cases, it is generally important to get to the microphone first, to make sure that your narrative shapes how the case is viewed. Speed is key here. A pithy comment on a judgment will often go far and wide if it is given within minutes of the judgment being handed down. An hour’s delay and the other side will have beaten you to it, or the story will have been written, or in high-profile cases social media may have already gone off-message. Get out ahead and stay ahead in the mainstream media, and monitor it and social media closely, correcting misinformation where the readership and influence of any publication requires it.
And mobilise your friendly journalists first. Make sure they are in the back of the courtroom at important moments for your client and fully briefed on the main points of your case. You should also assist them afterwards by summarising the day’s hearing and providing them with highlighted transcripts of what was said, ideally at close of play on the day of the hearing.
Alternatively, if you wish to appear reactive in your litigation PR, or feel that the other side is likely to rush off to the media when they are in fact in a relatively weak legal position, then it can be tactically better to wait until journalists come to you seeking balance comment on a draft story. At this point you can put your side of the case convincingly, making the other side look weak and unreliable, and preserving the appearance of being reactive in your litigation PR, rather than being seen to make the first move.
Whether proactive or reactive, your litigation PR strategy needs to be planned well in advance in order to be as effective as possible. Messages need to be agreed, quotes prepared and journalist briefing packs created so they can be deployed at a moment’s notice. As well as highlighting the key points in court documents for your own side, the same exercise should be undertaken internally from the opposing view, highlighting the best media points for the other side. From these you can develop your own positive messaging to journalists, but also counter-messaging to be held in reserve to nullify attacks and change the narrative, should this be required.
When the call comes in from an international broadsheet or broadcast media outlet or specialist publication, you will then be ready. Or if the attack comes under the radar, in the form of an obscure publication that is nevertheless on Google News, but whose newsroom does not have the rigour of the larger media outlets who will contact your client in advance for their comment ahead of any criticism, then that is the moment to deploy rebuttal articles and comments, hitting back with more force than the original attack carried.
Proactive litigation PR can take many forms. It might be just establishing mood music about an issue to a particular geographical or stakeholder audience, softening the ground for the way you want your client or their argument to be perceived in a particular jurisdiction. In this it is often useful to find third parties who share your client’s view or objective, and who can be deployed with or without their detailed knowledge of your media plan, to help turn the narrative in your client’s favour.
Another important tool in litigation PR is background briefings to journalists. Provided you agree it with them in advance, and always tell the truth, journalists will respect a briefing on background only. This is a useful tool for them to gain a better understanding of matters which are not yet in the public domain, but it also gives you an opportunity to weave on- and off-the-record briefings into one briefing session. In this way the journalist comes away with the full picture, but also an understanding of why they cannot yet publish certain aspects. This gives you and them a head start over their competition, and ensures they are ready to publish a follow-up story once further steps are taken in the proceedings or additional documents are released.
Partly because of the enormous cost of high-stakes litigation, we are seeing a steep rise in the deployment of settlement PR. Settlement PR is a form of litigation PR are typically takes two forms. The first type of settlement PR might be a pre-emptive strike at the reputation or argument of the other side, long before the case comes to trial. This will alert the other side to a PR war of attrition which will ensue if the case is brought to term, and can have a positive effect on bringing the parties to the table before the public curtain is raised on the litigation itself.
The second type of settlement PR occurs after the courtroom battle has been won. Often a client will be sitting on a judgment giving them the legal right to many millions of pounds of assets from the other side. Sometimes this may even be a judgment which both sides have agreed to keep private.
Now is the time to put reputational pressure on the other side to stop evading your Order and pay up; or stop thinking about appeals and counter actions in this or other jurisdictions. Here effective litigation PR can point up transgressions by the other side, possibly unrelated to the present litigation, which will have the effect of persuading them to comply with the Order, rather than endure potentially catastrophic reputational damage.
Protecting your reputation
Litigation PR specialists and law firms need to work closely together and, as required, with corporate intelligence firms to find the right evidence and witnesses, and to deploy these in the optimum way, both for the legal strategy and the reputation war.
Often clients’ personal or corporate reputations will be significantly more valuable than the millions being fought over in any one claim. To win the legal battle inside the courtroom at the expense of losing the reputation war outside it would then be an entirely Pyrrhic victory. On the other hand, a good litigation communications strategy can enable a client to bounce back from an unfortunate judgment and on to the appeal, with their reputation intact or even strengthened.
Today’s reputation war is a digital one. Search engines are the keepers of your online reputation and this is made up of nothing more than a stack of published material, each one more or less favourable or damaging.
Having the right communications strategy in place will add new and favourable published material to the stack of mixed search results already appearing. Highly relevant articles from good publications will generally push down older articles, leaving the latest ones on top of search results. Given that there are 10 entries per page on Google and few people ever search beyond the first three pages, your client is only ever about 30 articles away from a positive online reputation.
In choosing which media outlet to approach with your story, you need to think about which publications will give you the right search results, which is not always the same thing as which publication will give your message the broadest initial reach.
An article that is all about your client or the other side will rank much more highly in a search for that person or company than an article that merely mentions them; and an article where your client’s or the target’s name is in the headline is likely to outrank other articles about your client or the other side, even in much larger and more recent publications.
Another important consideration is whether the article will be paywalled. As well as greatly restricting readership, journalists tend not to have subscriptions to other paywalled publications and so your message will not be as well amplified to them from a paywalled article as by an open one.
On the other hand, some paywalled publications may reach sufficient numbers of a key target audience, such as lawyers, for example. And occasionally even an offline publication can be the right choice, if it will go further than any other publication in revealing the details of your message, and if its audience is sufficiently relevant and powerful.
Similar to selecting the optimum third-party voices to support your media campaign, the identification of journalists and publications who are sympathetic to your messages and who have written in depth on analogous issues or cases in the recent past is vital.
As a practical consideration, it is important to put in place on an easily identifiable public platform for your client a 24/7 media enquiries telephone number and email address. You should create this if it does not already exist. This will be your early warning radar of an impending attack by the other side, as good journalists will contact both sides of a story for comment. And if your press office is obvious enough but is not contacted by journalists attempting to write a balanced story, then you have in that call and email log evidence to leverage in your fight to quickly get your message and point of view added to online articles. One advantage of the digital media world in which we now live is that although online articles rarely go away, they can be relatively easily amended after publication in the interests of balance and factual accuracy, if required.
Bring your litigation PR team in as early as possible, and introduce them to the top table with your client. They will help you shape your client’s global litigation strategy, including the detailed planning of how to handle present litigations in the media. Specialist litigation PR professionals will often provide insights that may be missed by others around the table.
And even when you get into the detail of negotiating with witnesses and expert witnesses and the drafting of their statements, and also of drafting your particulars of claim or defence and amended versions of these, your litigation PR advisors will be able to add great value from the perspective of how these documents will be received when they become public.
Even the order of your points with which Counsel opens your claim or defence is important from a PR perspective, as the press will often fade away to attend other cases after the opening statements are made, but the Judge will (hopefully) listen equally attentively throughout. It may therefore be optimal from the point of view of the reputation of your client to make your most media-friendly points early on in the courtroom, even where these may not be your best legal points.
Sometimes you and your client might push for a case to be heard in private because there are elements of the case which it is perceived may damage your client’s reputation, but the other side may want this too, as they may have even more to fear from public scrutiny. In this situation, developing a robust litigation PR strategy can enable you to push for this hearing to be safely held in public, enabling you to have a media field day with what it will reveal about the behaviour of the other side.
Having a good litigation PR strategy thus can embolden you to push back on privacy requests from the other side putting them on the back foot and showing them up as the only ones wishing to shroud the case in secrecy. Your client is then perceived as having nothing to hide and welcoming open justice. This will put your client on the right side of court reporters, even if they have to leave after 10 minutes because we ultimately do not object to the other side’s application for privacy. Then we can brief the press in the corridor outside the courtroom, from a position of moral and optical strength.
Utilising linked cases
No litigation is in isolation. They each live within the cultural framework of public opinion, form part of the client’s wider commercial objectives, and are related to other cases. Often the same party or practices will feature in otherwise unrelated cases. This provides additional opportunity to raise the pressure on your adversary, without necessarily promoting aspects of your present action. By highlighting the bad practices of the other side through other, analogous cases, you can also lay the PR groundwork for how your case will be perceived; and ensure that more weight is put on your points during your case, as a pattern of bad behaviour by your counterparty will then be more widely known.
Public court documents and trials are excellent ways to put evidence into the public domain, but sometimes it is important to do this before the litigation begins via third party publications and news websites, both international and niche. Achieving this is about having strong journalist relationships, and also knowing which journalists and publications will be most interested in the minutiae of your narrative, especially if these publications are on Google News, or very highly regarded in your target audience group.
Maintaining the narrative
As well as making the weather with upstream PR, it is sometimes necessary to control the downstream narrative post-publication. If articles appear where there has been an over-briefing by the other side, and lack of balance or factual inaccuracies feature in an article, then there are several ways to have misleading content removed.
The first and best thing to do is to appeal to the journalists’ better nature and professionalism, pointing out to them the minor changes that should be made in the interests of accuracy and balance.
Usually this friendly approach will succeed, but if the journalist really cannot see the importance of the change you are requesting, or is genuinely biased, or has been brainwashed by the other side; or the false narrative is just so topical and too strong to ignore, then the next best option is to appeal to their editor, when you can point out how their publication is being weaponised by the other side as part of a commercial war. The editor will then at least be more wary of publishing similar stories in future.
In extreme circumstances you can speak directly to the newspaper’s legal team, often via defamation lawyers. If all else fails then a complaint to the Independent Press Standards Organisation will often result in a corrective paragraph being added, or the article being removed.
In the case of defamatory material being published online by an irresponsible publisher or private individual, one can also appeal directly to Google, to ask them to delist defamatory material; it is also possible to attempt to force their hand in Europe via the Information Commissioner’s Office.
All of these options should be exhausted before any legal action against the publication is taken, because such action can be more damaging to your client’s reputation in the media than the offending article itself.
What goes around comes around in the media, as in life. So it is far better to keep your powder dry and win the journalist over for the next development in the case, rather than win this battle at the cost of falling out with the publication and losing the public opinion war in the longer term.
This article was first published on the Chambers and Partners website.