The rise of litigation PR – Legal Business 2020 Disputes Yearbook
Chief Executive Tim Maltin, Associate Director Arthur Maltin, Account Director James Lynch and Account Manager Lucy Lissack examine the rise of litigation PR in Legal Business’s 2020 Disputes Yearbook.
Open justice is a core principle in English law. With a long history dating back hundreds of years, it has been traced to decisions made before 1215 when the Magna Carta was signed.
In 1790 the legal and social reformer Jeremy Bentham said: ‘Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial. ‘In the darkness of secrecy, sinister interest and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks, applicable to judicial injustice, operate. Where there is no publicity there is no justice.’
The open court principle has long been recognised as a cornerstone of common law. In a well-known 1913 decision in Scott v Scott, Viscount Haldane LC noted that the right of public access to the courts is ‘one of principle, and as of turning, not on convenience, but on necessity’.
Referencing Milton’s Areopagitica, Lord Atkin (Ambard v Attorney-General for Trinidad and Tobago  AC 322 at 335) concluded: ‘Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.’
Finally, in a similar vein, Lord Chief Justice Hewart said in his 1924 judgment in the case of R v Sussex Justices, ex parte McCarthy: ‘…a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.’
Against this background, it is perhaps surprising that litigation PR is not more widely utilised in commercial court cases.
But the reality today of deploying specialist legal PR experts before, during and after trial is that this is an investment which can only be afforded by very well-funded clients and even then, only on matters where the matter or reputation value of at least one of the parties can justify the expense. Typically, this means that litigation PR specialists are generally only retained on commercial litigation matters where many millions of pounds are at stake. Post-Brexit, our courts are showing no signs of attracting less of these large international cases, and thus litigation PR continues to be in the ascendant.
Despite the well-documented importance of transparency in our justice system, modern commercial courts supply relatively few extra seats at the back of the courtroom for press and the PRs who can introduce them to the case and guide them as to the most interesting days of testimony and key points of law.
Indeed, if the PRs for the other side are standing up at the back of the packed courtroom, then you know they have succeeded in securing lots of press attendance and that they welcome this.
If, on the other hand, the PRs have arrived mob-handed and are sticking jealously to their chairs while members of the press are standing up by the doors, then you can congratulate yourself that you have done a good job in filling the gallery and that the other side is reluctant to assist you further by giving up their seats to facilitate additional press attendance.
Even better than an analogue seat at the back of the courtroom, what busy journalists need is good, reliable digital information about the case. As soon as your particulars of claim have been filed, served and acknowledged by the other side, your litigation team will begin briefing the press on the key elements of the claim.
Similarly, if you are acting for the defendant then as soon as your defence is filed, key elements of this will be trailed to the press, to ensure that they have your client’s main points front and centre.
Of course, if limiting press interest is the key to your strategy then this might involve being reactive to press interest which derives from these filings and being ready with some background facts which downplay the significance of the other side’s points or segue onto relevant matters that hurt the other side.
You will then undertake pre-trial briefings as the hearing date approaches, including explaining the significant outcomes of arcane case management conferences along the way.
Give the media a heads-up that the trial will be starting within the next day or so, including refreshing their minds on the background of the claim, your client’s key points, as well as key days of the trial that will be of the most interest to them.
Once the trial has begun, a good litigation PR specialist will distribute to key journalists by email the skeleton arguments for both sides, as soon as the judge has confirmed he has read them and these have begun to be read in. Naturally your PRs will highlight the key points for your side, but they will also make sure that journalists have the confidence to write, which comes from a broad understanding of the case and the matters at stake. As witness statements are referred to in open court, these can also be shared with journalists.
Most importantly, each day interested journalists should be sent the full transcript of the day’s events in court, together with a covering email summarising your main messages. By giving the page numbers of key quotes for your client in the final transcript, journalists can easily quote directly from these sections, positioning your key legal points directly in the media’s eye.
Deciding which journalists to target with which messages is a key part of litigation PR. National and international press will be interested in the key themes, but only those which relate to current events and which are therefore also newsworthy outside of your case.
It is important to position your client’s litigation in light of national and international news, and to be aware of how your key themes relate to topical matters under discussion in society and the media more generally.
At the other end of the spectrum, legal and industry sector trade press will have more interest in the finer details of the case. The former will be interested in the legal characters and points of law involved, whereas the latter will be more interested in the commercial terms and circumstances surrounding the dispute.
In this way it is possible to select different key messages for different types of media outlet. This will maximise coverage of your main points, tailoring each briefing to ensure each key aspect of your case is followed by the appropriate journalists.
At a more advanced level, background briefings to the media and working with third-party voices can be a way of introducing helpful information into the public domain, outside of the litigation itself. Sometimes this can be information which can then be used in the litigation, or it can be a way of reporting on something before it would otherwise have been reportable.
Corporate investigations can be useful in this area, as can the joining of other publicly available dots to create a more complete picture, which can then be reported upon in a new way, helpful to your side.
For example, by utilising information already made public in the Panama and Paradise Papers and combining this with information gleaned from your own pre-litigation research, a more complete picture of the activities of the other side may emerge and be able to be reported upon by journalists eager to break new ground and make new links in stories.
Invariably, the courtroom itself is also an excellent place from which to enter information into the public domain. To this end, your litigation PR experts will work closely with your counsel team to ensure that key media elements are brought out, not just in your skeleton argument, but also in cross-examination.
Clearly, this must be absolutely germane to your case theory, or that of the other side, to avoid it being objected to by the opposing barrister, or even the judge; but how cross-examination is conducted and the questions dwelt upon can have a significant impact on the media perception of a case.
On the other hand, there may be other related cases underway, which can be reported upon alongside the immediate case, thereby allowing journalists and the public to make the proper connections, which might otherwise have gone unrecognised.
During all of the above briefings, and certainly during the trial itself, your client’s points will have been communicated to the press, but not their own words, if spoken outside the courtroom.
Upon judgment hand-down you now have the opportunity to include an on-the-record quotation from your client or their legal team. Timing is the key here, as the other side will also be ready with their spin on the judgment. So it is important to have your comments agreed in advance, ideally based upon the draft judgment circulated to the parties beforehand.
A member of the litigation PR team should attend judgment hand-down, when the pre-prepared comments can immediately be checked against the final judgment text and press briefed accordingly.
Being first to the microphone in these situations can put you at a significant advantage, especially given the difficulties in playing catch-up in the media. In the 24-hour news cycle, ensuring your client’s comments are included in initial reports can be the difference between key stakeholders viewing the result positively or having their confidence in your client shaken.
Given the enormous cost and protracted time frame of commercial litigation, sometimes PR can be used to put your client’s side of the argument ahead of a full trial, or even before a claim has been filed.
For example, if the parties involved have some celebrity status or are public companies, or if some of what may come out in court will be potentially damaging to the other side, then airing these arguments in the media ahead of time will give the other side a flavour of what is to come if they do not come to the table and settle the matter ahead of trial.
Similarly, your client may have a great case but not the resources to fight it against a well-heeled opponent. Here again, by targeting the reputation of the other side ahead of a full trial, it is possible to force a settlement which otherwise would not have been forthcoming.
Indeed, as all cases can settle before judgment, all publicity before, during and immediately after the hearings carries with it an element of settlement PR. More often than not, though, if things have gone well in the courtroom, you will want your judgment, from which may flow asset recovery or further strategic litigation.
Sadly, this is an increasingly common area of litigation PR, as pursuing orders through the court process can be time consuming and costly, despite the fees already expended in securing the judgment.
Today assets are often hidden in a way which leaves no paper trail at all. This makes it difficult for the court to get at them, even via third-party disclosure orders.
In this situation, human intelligence investigations can often reveal who is keeping what assets for whom, and the results of these can be deployed both in the courtroom or in the media, or both.
Sometimes the additional element of media pressure can short-cut the process of asset and costs recovery.
Litigation PR is continuing to grow in use and sophistication. Increasingly, it is not just a tool for justice to be done and to be seen to be done, but also part and parcel of effecting justice itself.
A good litigation PR strategy, well executed and delivered, can give you the edge in hard-fought litigation. Perhaps even more importantly, it will protect your client’s reputation throughout a very vulnerable time, when both sides will need to bare their souls on the rack of open justice.
In PR terms, protecting your reputation can be as important as prosecuting your key points. After all, winning in the court of public opinion can be even more important than winning in the court.
Usually the two go hand in hand, but even a win on a specific litigation, if handled badly in the media, can do untold damage to a corporate or personal reputation. Sometimes judgment will go in your favour while your reputation can be so hammered during the trial that the victory becomes pyrrhic. An excellent litigation PR campaign will not only help you win, it will help you be seen to win.