Reputation and legal strategy in civil litigation
Open justice is key to the effective operation of the rule of law, as it demonstrates to the public that justice is indeed being done. The openness of our commercial court system presents both opportunities and threats to litigants. The opportunity to lay their case bare to the world, and to demonstrate the poor behaviour of the other side. But this comes with the threat that some weakness in your case could be seized upon by litigation PR experts from the other side and made much of in the media.
Clients and their solicitors need to be very aware that often the matter value of the particular case at hand is small in comparison to the reputational damage that the individual or corporate could suffer if media reporting about the case is not handled effectively. And in the digital age we now inhabit, every blogger and tweeter has the potential to change narratives. Effectively we are all publishers now.
Just as it is the job of barristers to present the case to the judge inside the courtroom, it is the job of litigation PR experts to present the case to the public outside the courtroom. For litigation PR professionals, every journalist and editor is a judge, and their verdict can have a greater impact on the value of corporates and on the reputation of individuals than the verdict handed down inside the courtroom.
Whilst what is ventilated and decided upon inside the courtroom is the primary driver of reputation in litigation, if this is not effectively spun into the outside world its positive impact will be diminished. The inherent inefficiency in translating courtroom drama into column inches presents great opportunities for clients. Poor cases can be presented optimally for the client, and even strong cases for the other side can be undone by an effective media campaign that focusses on and amplifies the weak points in their case.
Effective legal advice around litigations must include an equal weight being given to both the litigation strategy inside the courtroom and the PR strategy outside it. Without the latter even victory in the former can easily become a Pyrrhic one; and with it even a loss in the courtroom can be transformed into part of a long crusade for justice which will continue with an application to the Court of Appeal.
But even more importantly than these extreme examples, good litigation PR advice will amplify every positive for your client, and every negative for the other side, steering your client’s reputation along the optimum narrative path. To do this effectively, litigation PR professionals need to be brought in right at the beginning, when litigation is first being contemplated or when a letter before action is received. At this point PR professionals can advise lawyers and their clients of the likely reputational risks and opportunities presented by bringing or fighting any given case. It is only by weighing these against the likelihood of success that the optimum litigation strategy can be identified.
Indeed, it may be that a case which is believed by the legal team to be a sure-fire legal win can equally be identified by litigation PR experts as a sure-fire reputational disaster. For example, a wealthy corporate choosing to fight an employment claim may be told by their lawyers that they have a strong chance of winning it, but the fallout from not settling the case could have a disproportionately damaging impact on the reputation of the corporate if the nature of the allegations which would be laid bare during the hearing are serious and concerning enough to the public. There are dozens of examples of the asymmetric relationship between the matter value and likelihood of success, and the reputational value of cases. Reputations are global, and litigations brought in other jurisdictions must also be weighed in the balance, including the sequence of these and how disclosure in each may help or hinder the progress of other claims, as well as the reputational impact of each.
As well as litigation PR advice shaping legal strategy, it can also very usefully inform legal tactics, too. Litigation PR professionals should be involved in reviewing and advising barristers on their skeleton arguments, to ensure that the best points for the media are dovetailed seamlessly into the best points for the judge, and placed at the top of the document when the attention of the press is likely to be most intense.
Good litigation PR professionals will brief journalists on the key points in the skeleton argument as soon as the barrister is on his feet and has begun his opening address. They will direct journalists to the key passages for the client, and those which will resonate the most with journalists in the current media cycle. In an age where media budgets have been slashed and there are fewer court and legal correspondents, having good relationships with these specialist journalists is key to getting your client’s optimum narrative into the press.
As well as the challenges to reputation posed by social media in the digital age, there are advantages over the traditional print news system. Positive articles which used to be fish and chip paper the next day now live online forever and are returned as shining examples of the excellence of your client each time their name is entered into search engines. The flip side of this is that negative articles can live forever, too. But here again there are advantages in the digital age, as inaccurate reporting can be tweaked post-publication, pushed down by positive news, or even taken down altogether under the Right to be Forgotten in Europe.
The key thing to remember is that most journalists are good, hardworking, and intelligent people doing a very difficult and important job. If they have made an error then the first solution should never be legal action, but instead friendly and cooperative guidance from a litigation PR professional they know well and trust, pointing out any factual inaccuracies and offering them elegant solutions to take the sting out of their copy. Positive antidote injected into a story online will almost always neutralise the most damaging element of the publication, and the corrected copy will live online forever. Maintaining positive relationships with the press is always paramount, as by doing so today’s bad article can become tomorrow’s good one.
The tendency to send legal letters to journalists is both counterproductive and ineffective. One investigative journalist cheerfully told me that when they received a legal letter from one of the parties on the other side of a case they “knew they were onto something”. It is particularly important to remember this in the present environment where free speech is under attack around the globe, and instead rely on friendly and helpful influence from a litigation PR expert.
Increasingly litigation PR is also being deployed prior to cases. This is obvious in group action claims where multiple victims can speak with one voice through a coordinated PR campaign. This can both serve to attract additional claimants, and bring the defendant to their senses to settle claims before they are heard. Equally litigation PR can be effectively deployed post-judgment, to assist in the enforcement process by placing reputational pressure on losing parties with an international profile beyond the pressure of the judgment itself.
Although outwardly dry, case management conferences can also be excellent opportunities to shape the narrative for your client. Key information often surfaces into the public domain in these seemingly innocuous hearings, which can be amplified to the benefit of your client and the overall legal strategy, impacting on the other parties and shifting the media landscape in the client’s favour.
Information warfare is a key element in hard-fought litigation, where speed is often the key to parrying the thrusts of the other side. Being first to the metaphorical – and sometimes the actual – microphone usually makes the difference between your client’s narrative becoming the accepted one, or the other side’s view prevailing. Speed is so important in our digital media era, and reputations so valuable, that litigation PR professionals should be considered to be truly a part of clients’ legal teams, for the purposes of reviewing draft judgments and advising clients on the reputational impact of key passages.
This will alert barristers of the need to ask the judge to make sometimes legally insignificant tweaks to his or her judgment, which judges may be quite happy to do once the reputational reasoning is clearly explained. Often it is the legally insignificant but reputationally important parts of cases which are overlooked if the legal team is not working seamlessly together with the litigation PR team. The present lack of clarity about whether litigation PR professionals can be treated as part of a corporate litigant under CPR rules creates an unlevel playing field. Recent case law has established certain points relating to the sharing of draft judgments within law firms, but no clarity has been forthcoming on sharing these with litigation PR professionals advising legal teams. Until litigation PR professionals are considered within the confidentiality ring for the purposes of reviewing embargoed judgments clients will continue to suffer the brutal and inhumane lottery of reputational damage post hand-down.
Just as the legal strategy must inform the PR strategy in civil litigation, so too must the PR strategy inform the legal strategy. Otherwise both suffer, to the great detriment of the client.
Tim Maltin, Managing Partner, Maltin PR
This article was first published by Chambers and Partners, here.