“We will litigate in the court of law, not in the press.”
“My attorney will manage the media.”
Myopic remarks similar to these have contributed to the destruction of otherwise salvageable reputations, allowed tainted information to seep into jury pools and ushered companies out of business.
When a defendant fails to respond to a plaintiff attorney’s media manipulation during the onset of litigation, one-sided and imbalanced news coverage is certain to follow, casting the business under a dark cloud of suspicion throughout the entire process.
Although a defendant company may have the facts, the law and ultimately the court on its side, negative news coverage can decimate stock values, send customers scrambling and altogether cripple the business regardless of the eventual outcome.
It has been said that one who represents himself in court has a fool for a client. In today’s 24-hour news cycle and social media society, it should also be said that a client whose counsel refuses to allow media engagement has a fool for a lawyer.
Moreover, it is totally unethical for an attorney to do nothing while opposing counsel holds press conferences, conducts interviews and churns out media advisories that tarnish the defendant’s image and shape public opinion to the plaintiff’s advantage.
Defendants are initially disadvantaged in press coverage because it is the plaintiff’s allegations that typically generate the headline and the story’s lead. And in today’s society in which those “evil” paycheck-producing, job-creating, tax-base-strengthening entities known as businesses are immediately suspect, the disadvantage is compounded.
But by proactively responding to and managing the media from the beginning of the process, a defendant has a far greater chance of mitigating sensationalism, adding insight to the overall situation and helping the press and the public understand complex legal issues. Proactive press participation could furthermore impact how the story is written and ultimately influence the outcome of the case.
This is because the manner in which a story is presented can have a tremendous weight in shaping public opinion. And public opinion alone can result in the plaintiff dropping the case or opting to go to the settlement table rather than the courtroom.
COURT OF PUBLIC OPINION
So how does litigation public relations work?
In most cases, the company under fire will need to initiate the process of securing its defense in the court of public opinion.
As a business owner or executive in charge, the onus is on you to establish a litigation communication team. You will need to express your concerns to your attorney about the impact negative media will have upon your business and importance of preventing the company’s reputation from being destroyed in the press.
The litigation communication team should include your attorney(s), public relations counsel, appropriate company representatives and, where applicable, representation from your insurance carrier.
When choosing public relations representation, make sure the agency has experience and a strong reputation in litigation public relations.
There exists too many agencies and consultants eager to hop on the litigation public relations bandwagon that simply have no business rolling the dice on everything you ever built. Make sure the candidates you screen have solid references from past clients and attorneys.
Once the litigation team is assembled, the next step will be to develop a communication strategy. At this point, the public relations counselor will take the lead in full consultation with the attorney(s) to lay out a plan that anticipates the opponent’s tactics and messaging, develops your company’s messaging and responses, identifies and assigns training for appropriate spokespersons and alternates and lays out the means to execute the plan.
BEHIND THE SCENES
Because litigation PR quite often involves managing the communications aspects of litigation well before a case is adjudicated, the most meaningful work more often than not occurs behind the scenes early in the process.
That work could include tactics such as putting the other side on notice about the undesirable kinds of media exposure it will suffer, defusing unnecessarily hostile issues or, in some cases, working on a civilized level with the opposition’s communication team to ensure nobody gets “smeared” in the press. (Yes, this does happen, particularly when regulatory agencies are involved).
Attorneys with the client’s best interest in mind will embrace a litigation PR strategy that aims to protect the company’s reputation. Conversely, public relations professionals with the client’s best interest in mind will work closely with the attorney to ensure their efforts complement the legal strategy.
A communications team that places both the legal and reputational interests of your company first is a formidable match against any accuser.
Ken Kilpatrick is president of Sylvia Marketing & Public Relations, a Pottstown-based PR agency specializing in corporate communication, crisis management and litigation support. He can be reached at 610-323-3500 or firstname.lastname@example.org.