Reputation management during litigation – Legal Business panel discussion
Maltin PR was invited by Legal Business to hold a panel discussion on reputation management during litigation, at the Financial Regulatory and Disputes Summit 2021.
Speaking on the panel were Clive Coleman, Partner at Maltin PR and former Legal Correspondent for the BBC; Jo Sanders, UK head of Media and Reputation at Withers; and Tim Maltin, Managing Partner of Maltin PR.
Clive Coleman, Partner at Maltin PR:
For the past 10 years I was the BBC’s Legal Correspondent, covering legal and litigation stories across all BBC News platforms, including radio, TV and online.
In this session today we are hoping to give you three perspectives on the way the press covers litigation. To my far right, is Tim Maltin, who is one of the pre-eminent practitioners of litigation PR. Tim is the head of Maltin PR which is one of a number of agencies that engages in litigation PR, a growing field of work.
Litigation PR, as I am sure you are aware, has always been a big deal in America, as they have juries sitting in civil cases, but it is also becoming a big part in the UK legal landscape. It’s not rocket science, there is a battle to be waged in the courtroom and there is a battle to be waged outside the courtroom. If the battle is simply waged in the court room and won there, it doesn’t mean the battle is won overall. So, litigation PR, working at its best, is ensuring that there is a seamless fight. We will explore with Tim this afternoon some of the ins and outs of litigation PR.
We also have a lawyer’s perspective: joining us is Jo Sanders. Jo is really one of the pre-eminent lawyers working in reputation management, defamation, privacy, and those areas of the law. So, we are very lucky to have her.
I will be providing the journalist perspective.
Journalists deal with stories that we are interested in. Every piece of journalism that I have ever done is a story: they are not called news “stories” for nothing. As I mentioned when I started speaking, the news really is a mad, hectic, crazy world. It happens when it happens, it happens as fast as it happens, and the journalist’s job is to keep up. In order to keep up with a news story when it is a litigation news story, what do we need as a journalist in order to do that properly? What do we need from PR professionals? What do we need from lawyers?
I was a barrister in 1986 and back then it was considered almost “un-British” for a barrister to speak to members of the press. That world has long since vanished and any sensible lawyer worth their salt knows that the media coverage of their case is a very important aspect of the work they do. I need as much help and notice from the lawyers and PR professionals as I can possibly get. That means notice of the hearing, citing all the key documents in the case, pleadings, skeleton arguments, witness statements, exhibits, and I need any pictures that I may be able to use if I am covering any story for television. Television is pure picture. You cannot tell a story on television without picture which is where video footage can come in handy. For example, I worked on the Barclays brothers’ case where a court order was lifted and a segment of video showing a nephew of the Barclay brothers planting a listening device at the Ritz Hotel was released. It was critical to liaise with the PR professional and the lawyers of the case to see when the order was going to be lifted and when the video was going to be made publicly available and when we could run that story across all platforms of the BBC. It is very helpful to be told which are the key passages of a court document, which are the key parts of the skeleton and the areas the QC is going to be focusing on when he or she stands up in court. All of this information is incredibly important and useful to me as a journalist.
As a journalist, I am a salesman; I need to sell my story to my editors. At the BBC we had electronic news diaries in which a seven-line entry was written whenever a news story was being considered. This meant everyone across the entire output could see what the story was about and that helped us sell our stories. So, if I have got the key words, phrase, and images from a story, then I have got a much better chance of enticing the interest of editors to ensure the story makes it onto their programmes. I am giving you my personal experience by saying that there is a massive insecurity amongst journalists of making a mistake on a big story. As such, journalists need as much information as possible, they need to understand the architecture of the litigation, they need to understand the structure of the arguments, they need to understand who is going to feature in that day’s proceedings and witness evidence.
How does the newsroom operate? I alluded to it a moment ago – you are under the most unspeakable pressure. Take someone working for the BBC as an example, obviously the news organisation I know best. If you are reporting on a case, you may be required to do the following things: get copy regularly throughout the course of the day, report on how the hearing is going, and you may even need to call yourself out of court to do radio summary pieces – 35-40 second summaries of what’s taken place in the last hour. It is a job where you need the hide of a rhino and the pulse rate of a librarian, it is unspeakably pressurised. You do get used to this pressure the more you endure it but it remains incredibly high. With that kind of pressure you really need the backup of lawyers and litigation PR professionals informing you about the nature of the case and story. Sometimes the lawyers’ focus is of course geared towards the case they have to fight and win in court, so sitting alongside them if you have PR professionals able to provide those key documents and also tell you when they are produced. I might be in a situation where I have to get one of the lawyers outside to do a clip for a news package. Maybe you will get 15 seconds, it seems like absolutely nothing but if I was to sit here and let my second hand on my watch go round for 15 seconds it will seem like an eternity. You can say a lot in 15 seconds, you can make three good points.
The important elements of conducting a successful litigation these days can involve the lawyers making on-air contributions, it is not all quotes in print. If they are required to come out of court to make a 15 second on-air contribution, I need to be able to put my house on the fact that they understand the grammar of broadcasting and that they’re going to give me something close to useable or that is at least editable. So, I need lots of preparation and I need lawyers and litigation PR professionals that know what they’re taking about and understand the media.
Before I became the BBC’s Legal Correspondent, I presented a programme called Law in Action on Radio 4 and one of the researchers in the office had a screen saver which read, “I promise you he was good on the phone”. That is because when they had spoken to the lawyer on the phone, they were expansive and articulate, but when faced with the microphone, they became very risk averse and used legal language which rendered them utterly bland.
It is somewhat the business of infotainment. If you are a lawyer in a case and you are asked to speak in relation to the case, often you are in a position in which you cannot comment, but if you are in a position post judgment to do so, then think about your audience, think about who you are communicating with and pitch your language accordingly.
Okay, so that’s a little bit from me on the journalistic perspective of litigation PR.
Jo Sanders, UK Head of Media and Reputation at Withers:
I tend to get brought into litigation at a point where there is an apprehension of some misreporting of some kind. It may be that it is simply by the nature of the case or parties, or that the case has a particular profile that people are worried that misreporting may arise during the process of the litigation, or it may be more specific where we have actually reached the point where we have received some questions from a journalist which are troubling in some way.
I am not going to be universally critical of a journalist in that situation because nowadays, journalists are operating in an extremely pressured environment and many, even very big, commercial publishers do not have a specialist court reporter of the type Clive was describing, somebody that will stay up until 4am and read pleadings. They may be coming to report upon litigation for the very first time and have very little understanding of the court process, what will happen, or the significance of the materials that they are being shown. The other difficulty of course is that some litigation is about very complicated things, particularly financial litigation, which may be extremely technical, and the subject matter might be extremely challenging even for people who have been immersed in it for months. So, a journalist who comes cold with a very limited understanding of court reporting is confronted with a real challenge. In cases where there has been misreporting, it may be because the journalist has been primed or briefed by a party with a particular perspective.
I think one of the attractions about courtroom reporting to a journalist is that they can repeat allegations safely under the protection of the court reporting rules which offer a statutory defence to a libel claim for a fair and accurate report of public legal proceedings. Now, on one level that means that throughout litigation there is going to be information coming into the public domain and there will be court reporting. Does that mean you are effectively powerless, to really do anything about that reporting or challenge how things are being reported? I do not think so because the very framework of that statutory defence requires that the reporting is fair, accurate and upon public court proceedings. All three of those limbs can be quite important in approaching what you can do about problematic reporting, whether that is before or afterwards.
I can illustrate with a little story of a case I was involved in relatively recently. A defendant to some litigation had very recently, within two days of being served with proceedings, received a media enquiry. They were I think at that stage still on-boarding the litigation lawyers and at a very early stage of digesting what the claims were about and how to respond to it. They then received an email from a journalist which contained about a dozen propositions, some of which were incredibly contentious, including accusations of criminality, fraud, assault, – a real mixed bag of things that the journalist said the defendant had done wrong. About three quarters of the propositions were derived from the Particulars of Claim, but a quarter of them didn’t derive from the Particulars of Claim. They seemed to come from somewhere else. The defendant was invited to comment on them in the usual way: “What do you have to say about these things?”. The journalist did not say they had received a copy of the Particulars of Claim but given how much of the email and content linked to the Particulars of Claim it looked an awful lot like they had got a copy, or been shown one. At this point the client came to me and said we have received this email, I suppose there is nothing we can do? I do not want any publicity about this – I want it all to be dealt with very quietly. I am not looking to publicise this litigation. To which I said, I am really sorry, but that ship has sailed because somebody out there wants to publicise this case.
I am sure Tim will comment on this but it is usually the case, that there is one party more interested in publicising a dispute than the other. So, the client said I don’t want to say anything, I do not want this to appear, and we had some discussions on that fact that this was going to appear, and the question to ask now is, how it is going to appear. Now, going back to my point on the framework that the journalist and publishers are interested in, bringing itself within the defence of a defamation claim, of fair and accurate reporting on public court proceedings. At this point in time, the defendant had just received the Particulars of Claim but had not yet filed an Acknowledgement of Service. And for any of you who are litigators in the room this is CPR 5.4 when it talks about when documents becoming available from the court record. So, at that point in time, the Particulars of Claim where not technically publicly available. The other point I made was that not all the propositions raised by the journalist derived from the Particulars of Claim at all. That I found particularly interesting because an instructed barrister has prepared the Particulars of Claim for the claimant and obviously took the view that those three propositions had no proper basis to be in the pleadings at all. Whether they are unsupported or legally irrelevant, but all of these are quite reasonable points to make to the publisher, and to say what you are contemplating publishing at the moment is particularly problematic. It is too early, it cannot be balanced; the defendant has not had an opportunity to file an Acknowledgement of Service, the document is not publicly available and some of this has come from somewhere else for which you are outside the scope of defence of a defamation claim, of fair and accurate reporting on public court proceedings anyway.
The outcome of which was that the article did not appear then. Instead it appeared six or seven weeks later, with the benefit of a Defence, and with the allegations that derived from outside the proceedings dropped. The end result was a much more fairly balanced piece.
Tim Maltin, Managing Partner of Maltin PR:
From the litigation PR perspective, clients often think the planning for that starts on the day before the judgment comes out the next morning at 10.30am! But obviously it doesn’t. In fact, when you are thinking of reputation management through litigation, you really need to start right at the beginning of how good my claim is and is it in my client’s interest to bring the claim. We often find that the matter value is very high but the reputational value for the client may actually be higher than the matter value. So, one thing that you need to take into account when thinking about the merits of bringing a £10m claim that you think you have a 60% chance of winning, is if it is going to knock £20m off the share price because some dirty laundry is going to be aired in open court, then obviously that is a different conversation to have with the client.
So, to all the litigators and solicitors listening, as soon as litigation is in contemplation, think about the reputational dimension. In terms of picking up Jo and Clive’s point that the other side might be keen to promote the case even if you are not, remember we are in an open justice situation, things tend to be open according to court laws. Clients often say to us: “We do not want to say anything, but if it comes out we want to be leading the narrative”, and that is actually possible, so I just want to tell you a little bit about that.
Good journalists, like Clive, will actually always reach out to you if they are going to criticise you in an article or reach out to your client. So, one of the most important things is clients should set up a press office, clients might have an email address on the website for the press or a phone number but if no one answers that on a Friday afternoon or on a Saturday morning then you could end up with a nasty shock on Sunday.
So when you are dealing with clients and holding their hand through litigation sometimes the PR professionals can act as a press office for the clients and the press contact phone numbers can go straight through to them, and you drill the client’s receptionists that even if it is weekend cover, even if it is a remote telephone system or a general enquiry of the type of thing that might come from a journalist, it must go immediately to the PR professional and relevant partner at all times of day or night. Then, what you also do, even if you want a reactive PR strategy, is imagine you have adopted a proactive one, and get your quote ready, imagining the worst thing the other side could say – your Achilles’ heel. What you are going to say back is what is called the antidote, it is what draws the sting out of the other side’s comment. We will have that ready for when we attend court and look out for any journalists or court reports. It might only be Law360 if it is quite dry, but even if it gets published there, it might get picked up by the Daily Mail if it is quite salacious. So, you need to deal with journalists in the court room as well. We usually sit by the door so that if a journalist pops out to go to the next-door court room you can chase them down the corridor and give them your skeleton argument and just make sure they got everything Clive was saying, the narrative we want to push, because if they have your narrative in their mind that is going to help a great deal.
The other thing I might conclude by saying is that in the old days it was all newspaper and print and then it was fish and chip paper the next day; but now, even on the BBC, the website is absolutely key, and in fact, comments and articles live forever online. Often your clients will say, “my front page of Google needs this, needs that”, so all we have to remember is that in the old days you did not really have a chance of doing much apart from getting an apology printed the next week on page 75 in font size three or whatever. Whereas now, we have a much better opportunity in the first instance to actually try to appeal to the journalist’s better nature and try to explain why they are factually incorrect in their reporting, and even to try and get another positive article the next week or more usually, get that antidote put on the website once the article has been published. Generally speaking, journalists will always be happy to amend website copy to get your client’s position out there. So, what I will say is that even if you do miss the boat, there is an absolute opportunity to put the record straight.
How do you approach PR support when a draft judgment is embargoed and due to be handed down shortly?
Answer from Tim Maltin:
We work very closely with the relevant legal team behind the scenes and agree on all the key media messages, highlighting key passages for ease of journalists’ reference. In this way, we are ready when the judgment is handed down to go directly to the press, making their life as easy as possible. So then we are ready that as soon as the judgment is technically handed down, we might get a text from the court, and then we are able to release the judgment to the press and then start briefing them. As Clive said, have your highlighting done in advance.
Answer from Jo Sanders:
If you are acting through a corporate party who has internal communications functions, embargoed judgments can be disseminated within the corporate party to those who need it. If you are in a situation in which your communication advice is external, you can ask the judge for permission to share because why should a corporate party who has an in-house communications team be at an advantage to somebody who has appointed an external party. So, you can ask the judge if it can be released under embargoed form to an external communications adviser provided that is in confidence.
Answer from Clive Coleman:
Just a little point on that from a journalist’s point of view, my nightmare was that I am waiting for a judgment at the RCJ, and it drops, it is 120 pages and I’ve got to go out and do a live show on the news channel in three minutes’ time. That is really difficult so what I would always do is bring the lawyers in and I would speak to a litigation PR firm if there was one involved, and ask if the lawyers could be primed and ready because the best people to explain the 120-page document is the people who have had it in advance, who are legally trained and have been working on the case. That was an invaluable source for me, absolutely invaluable. I do think that if you are litigators, you ought to regard it as part of your role that when the judgment drops you are there to make sure it is clearly understood by the media and accurately reported. It works for us, and it will work for you.
How has social media changed the matters you need to be aware of and how you develop strategy, as well as the channels you use to communicate?
Answer from Jo Sanders:
Very briefly, it has of course changed the landscape massively and I think I probably spend as much of my time advising people not to do anything as I do advising them to do something. There is an inevitably a huge amount of coverage out there on social media and you need to judge what is worthy of intervention and what is not. The tipping point is when it goes into something which looks more credible. That is really my sense check, assessing the credibility of what is being said and how seriously people are going to take it. So yes, social media has changed a lot.
Answer from Tim Maltin:
I would like to add to that, a more downstream point, is that we have had situations where we have got Twitter to agree to take things down and the publishers will see reasons for doing so. So, if you talk to them about things and say this is clearly defamatory, whether it is an image or text. Also, if you do research about what axe that person has to grind, if you can show the publisher what that person has been Tweeting about, it is possible to remove that and, as Jo says, do not feed the trolls! The worst thing is to get into a spat. It is normally better to monitor it and keep calm.
Does the absence of jury trials in civil cases change the strategy considerations for litigation PR?
Answer from Tim Maltin:
I think it gives us more leeway in some ways. A lot of what we do is what we have been speaking about today, which is commercial litigation, and the fact that there is not a jury there, in a way the court of public opinion is the jury outside the court. That gives us an opportunity to work closely with the legal teams to really shape our narrative before we even have day one of the trial and then as the trial unfolds, upon judgment, we make sure we are the first to the microphone. Clive was talking about the speed at which you need to do everything, but you also need to do it faster than the other side, otherwise their narrative will be in there first. So, speed is the key, but being faster than the other side is even more important.
Answer from Clive Coleman:
We were talking with John Brisby QC, when we were discussing how we were going to go about this session, about whether judges read the news and whether they are influenced by it. I can tell you something, they certainly listen to the Today Programme because on more than one occasion I have sat in hearings in the Royal Courts of Justice, and the judge specifically referred to something that I said on the Today Programme that morning. John was involved, I hope I am not misrepresenting anything he said but I don’t think I am, in the Maxwell pension litigation, and he made the point that there had been so much publicity about how awful the position of the pensioners was because of Robert Maxwell’s actions that when it came to trial, they got a relatively easy ride.
The other parties were also wronged but John felt that because of the morass of publicity that had been absorbed by the judge to some extent in that case, that it was a personal opinion, but he felt that they got a fairly easy ride of it. So, you are not playing to the gallery in the media as you would be when a jury is involved but it does not mean that the art of fighting your clients’ corner before and during the case is one that isn’t worth doing. It really is worth doing because, from my experience, these things really do seep into the courtroom.
Watch the panel discussion here: