Introduction to PR & Communications
In a time of global turmoil and uncertainty, litigation remains an ever-present aspect of business, often directly caused by the tumultuous events around the globe. The war in Ukraine has caused extensive damage to global supply chains – compounding issues caused by the COVID-19 pandemic – as well as drawing in questions around the flow of information. In effect, two different informational ecosystems have developed, with one repeating Russian propaganda around the war and the other reporting more accurately on the situation on the ground.
This full-blown information warfare can be seen as a natural progression to the proliferation of ‘fake news’, with partisan media coverage reinforcing views and creating ever more echo chambers on social media.
One of the most notable impacts of Russia’s invasion of Ukraine for the legal industry has been the sanctioning by a number of nations of a number of Russian oligarchs and companies in Vladimir Putin’s circle. Law firms across the globe have stopped working with now sanctioned individuals, with many also exiting Russia altogether.
An Integrated, Global Approach
The interconnected nature of events across the globe presents a clear lesson for companies and individuals engaged in litigation in multiple jurisdictions. While each case may turn on totally different facts, involve different individuals and different legal systems, communications around each case must be carefully considered to avoid one jeopardising another.
Retaining local experts and maintaining clear protocols for media work around international litigations is vital to ensure that no media court reporting legislation or guidance in different jurisdictions is breached, which can have ramifications for the legal case in that jurisdiction. Such actions can hand an easy PR victory to the other side, potentially undoing the hard work of the legal team. More widely, any judicial criticism in one jurisdiction can have an impact on proceedings in other jurisdictions, being used by the other side to suggest disrespect for court rules.
Beyond court rules, it is also vital to maintain a disciplined approach to communications. Ensuring that a comprehensive review of all litigations is undertaken will identify key points to both focus on and avoid mention of for each. A reputational matrix can then be developed, highlighting any areas of overlap between multiple litigations. In this way, statements issued in one litigation can be tailored to provide PR benefit to ones in other jurisdictions. Conversely, the identification of potential weak points in each jurisdiction ensures that no issued statement relating to another case can be picked up by the media and harm the communications strategy around other litigations.
It is a common practice to ensure that there is one central legal team that has oversight of all ongoing legal matters for major international corporates/HNWIs. Management of a reputational strategy for litigation should be treated in a similar way. A central litigation PR team managing both the overall strategy and the local experts in different jurisdictions can ensure that press statements for each case are optimised to benefit the litigant as widely as possible, avoiding any potential pitfalls and with a view to the wider reputational strategy. In the midst of one case, it can be difficult to see the wood for the trees, so having wider oversight from a dedicated team of reputation specialists provides strategic direction and ensures optimal litigation and reputation results for the client.
An error often made when retaining litigation PR professionals is to keep them in something of a silo, away from the legal team and only called upon to assist during flashpoints, such as hearings, judgments or the trial itself. This approach is inherently reactive and leaves the team operating in the dark and playing catch-up at every stage. Instead, litigation PR teams should be closely linked to the relevant legal team, kept abreast of key developments and included in strategic discussions.
By integrating the litigation PR team into the core legal team they will be able to be fully abreast of the vital developments in the case, able to provide more comprehensive advice about both communication strategy and the litigation strategy from a reputation perspective. At certain points the merits of a legal case may not be as important as the wider concerns of the company. The upcoming emergence of certain allegations or evidence may be so damaging to the reputation of the client that it may be prudent to push for settlement of the case, regardless of the merits of the legal claim. In an era where a Tweet making a joke utilising false information can cause a 13% drop in stock prices (Costco Wholesale Corp. in May 2022) if amplified by the wrong accounts, ensuring that negative information does not see the light of day can be of more benefit than victory in a litigation. By ensuring that the litigation PR team has an equal seat at the table during strategic discussions, such risks can be accurately assessed and debated, rather than being treated as an afterthought or missed altogether.
Lawfare, SLAPPs and Inaccurate Reporting
Retaining litigation PR advisors prior to bringing any claim can also be of great benefit. In an era where the practice of strategic lawsuits against public participation (SLAPPs) is receiving greater criticism, it is important to discuss and establish how a lawsuit will be perceived by the wider public, even if it is categorically not a SLAPP. For example, if there is a risk that a filed suit will appear to be an attempt by a large corporate to attack a smaller one or even an individual, media lines must be prepared beforehand to ensure the wrong narrative does not take hold.
SLAPPs were defined in a UK Government consultation as “an abuse of the legal process, where the primary objective is to harass, intimidate and financially and psychologically exhaust one’s opponent via improper means”. The more resources a plaintiff has in comparison to the defendant, the more likely the case is to be perceived as a SLAPP, or more broadly a form of ‘lawfare’.
If there is a risk that a case may be perceived as a SLAPP, great consideration must be placed on how to avoid this outcome, which could taint the reputation of the client in the court of public opinion, even if the client is successful inside the courtroom. Sometimes, it can be far more beneficial to seek to have reporting amended with a soft-touch approach, rather than immediately seeking to litigate. Of course, if reporting is accurate then efforts should only be made to mitigate the report rather than attempts to intimidate the publication into removing it entirely. Once a reputation for attempting to silence reporting is earned by a corporate or HNWI, it is difficult to shake and will cloud future reporting about that entity.
For highly complex commercial court cases in particular, there is an abundance of materials that will be combed through by expansive teams of lawyers to carefully construct a case and ensure the accuracy of pleadings. In contrast, journalists covering the case will often not even have the benefit of comprehensively reviewing the pleadings before being expected to write articles on them. This can, quite understandably, lead to inadvertent errors in reporting. While these errors may seem monumental to those living and breathing the litigation, they are almost always inadvertent. Engaging with the journalist via a legal team can cause friction with the journalist where there is potential for litigation PR experts to gently correct them, building a stronger relationship and becoming a repository of knowledge around the case for the journalist to tap in to.
As such, initiating legal proceedings against journalists should be considered the final resort. Other methods can yield more positive results more quickly, at less expense and with less confrontation. Journalists do not, generally, want to publish inaccurate stories, so taking a conciliatory approach that points out any inaccuracy, backed up by facts, is beneficial to both parties. Similarly, pointing out how and why reporting is defamatory, again with clear factual backing, can result in articles being amended. If this fails, approaches can be made to media regulators, where these exist, or legal proceedings can ultimately be issued. Being able to show that good-faith attempts were made to resolve the dispute amicably and without the need for a legal battle can stand a party in good stead should the matter eventually make it to court.
Perhaps the most vital thing to bear in mind with negative reporting is that legal action can often have the opposite result to that sought. A lawsuit has the potential to amplify the reach of an allegation massively, increasing enormously the number of publications that cover it and, depending on the jurisdiction, providing a legal defence for other journalists to write about it under the purview of court reporting. This can give a story that was only covered in a small regional media outlet the potential to have a national, or even international, reach, with a correspondingly larger impact upon a reputation. One litigation can often run for years, and by the time vindication is achieved in the courtroom a reputation can be in tatters.
Consistency or Change
Litigation almost always, whether in an adversarial or non-adversarial jurisdiction, has a winner and a loser. Different stages of the case may have victories and defeats for each side, with reports in the media reflecting this. Somewhat like a boxing match, a party cannot expect to emerge from litigation completely unscathed, even with a perfect PR strategy. This raises an important question for litigants: at what point does negative media coverage move from being a fait accompli to a reason to change litigation PR representatives?
As such moves are typically made in the background of a case it can be difficult to highlight public examples. However, Johnny Depp’s defamation case against Amber Heard, the trial for which began in April 2022, provides perhaps the most high-profile example of all. After three weeks of Johnny Depp presenting witness evidence and largely controlling the media narrative, Amber Heard sacked her PR advisors, replacing them with another firm. While replacing any part of a legal team in the middle of a case presents issues – notably around getting up to speed with the evidence – media reports stated that her new team had previous experience in representing an individual litigating against Johnny Depp.
Evidence being provided by the other party in a case will typically be positive for them. After all, their evidence will be supporting their narrative. As such, with the media reports reflecting the evidence being given by the other side each day, some negative coverage for the client during this period is almost assured. Most times, this will be accounted for in a litigation PR strategy, with a strong counterpunch planned for the first day after the witness evidence of the other side concludes.
However, the coverage generated by Heard’s shift in PR teams presented three critical concepts – Depp had had control of the narrative in the trial thus far, Heard believed that this was as a result of her PR team, not her case, and her new PR team had previous experience of publicising Depp’s alleged misdeeds (also presenting a good opportunity to have these restated). Effectively, this drew a line under the early stages of the trial, suggesting to journalists that a change in the tone was coming, and that this was not just to be down to it being Heard’s witnesses’ time to take the stand.
In general, changing litigation PR advisors can throw a strategy into disarray, requiring the early stages of reading into a matter, making introductions to journalists and similar needing to be repeated. However, in particularly dire circumstances, or where a strategy is clearly not working or, indeed, making matters worse, a change can provide a fresh set of ideas that could reinvigorate media efforts.
Times of international crisis and geopolitical instability tend to cause a downturn in most industries. Litigation, however, bucks this trend. Instability causes disputes, and disputes result in litigation. Protecting the value of stocks remains vital during troubled times, and lawsuits often present one of the most challenging reputational challenges an individual or corporate can face. Ensuring familiarity with the litigation PR process, and engaging litigation reputation experts early on, can be the difference between success and failure in the court of public opinion.
James Lynch, Partner, Maltin PR
This article was first published by Chambers and Partners, here.