Winning in the court of public opinion

We all know that lawsuits or class actions are now part of American and other first-world business landscapes. And although we can challenge an unfavorable court decision on a legal case, there is no right of appeal in the court of public opinion, where the stakes can be much higher – making or breaking the reputation of a brand, a company or a person. These factors have given rise to a new communication practice, a fresh niche in the public relations horizon. It’s on many lips these days, and it’s called Litigation PR (LPR). And from the way the information economy is moving, it’s a tool that will eventually be a staple in the menu of services of PR agencies, as well as the list of functions of in-house PR practitioners in the Philippines.

What is LPR? James F. Haggerty in his book In the Court of Public Opinion: Winning Your Case with Public Relations defines it as "managing the communications process during the course of any legal dispute or adjudicatory proceeding so as to affect the outcome or its impact on the client’s overall reputation." It is the tandem of lawyers and legally qualified communications experts, working hand in hand with legal counsel, focusing on events outside the courtroom. It involves managing the cycle of crisis, which, if left unabated, can escalate and wreck an image or stature.

In the context of litigation and other legal disputes, "winning our case in the court of public opinion," from Haggerty’s point of view can mean many things: It can mean convincing a plaintiff (or prosecutor, or government regulator) not to file a lawsuit in the first place, and convincing a defendant that we mean business. And that despite the dependant’s outsized resources, the case is not going to go away. It is also all about getting the other side to realize that the damage to their reputation will be great, and thus, settlement ought to be top-of-mind. It can mean preventing copycat lawsuits from other parties looking to capitalize on a company’s travails. It can also mean tailoring a settlement in ways that limit the PR or public opinion damage if not outright victory in the courthouse.

Haggerty who is both a lawyer and PR communicator believes that public relations can be instrumental in bringing about the resolutions described above. In fact, on many occasions, he stresses, "Effective communications can be the deciding factor."

In the end he advises his clients to tell it like it is, not to qualify, differentiate or window dress the message being projected. It is Haggerty’s fervent belief that while victory can be had in the court of public opinion without a victory in the courtroom, our legal victory doesn’t amount much if. In the process, we sacrifice reputation, corporate character and all of the other elements that make up an organization’s goodwill in the marketplace.

In LPR the protection of reputation is just as important as a successful day in court. Litigation must not let a brand suffer much to affect long-term customer loyalty and market share. Remember, a competitor acting as predator lurks around when a brand or company is under assault. A sensible legal mind would recommend an alternative to the courtroom drama played out in full public gaze – maybe saving company money and spending it on something that can bring more enjoyment.

Not Just A Lather, Rinse & Repeat Method

LPR is not simply press conferences on the courthouse, mass-produced and distributed press releases, and late night shout-fests on Debate or other public affairs programs. A large majority of lawsuits settle before trial – thus, much of LPR takes place well before the case ever makes it to the court.

The traditional look of PR is that it is handled in this manner – write the press release, prepare the media list, send the press to media and then repeat steps one to three. This is the "lather, rinse, repeat" method, which unfortunately doesn’t work, unless we’re publicizing a simple product like a detergent bar. Applied in LPR, it can in fact do more harm than good if we send the wrong message to the wrong audience at the wrong time.

Why don’t these tactics work? They fail primarily because they reinforce the idea that PR is mindless work, and that it is just about connections. Anyone can do the job of getting information out there with the proper writing skills, the right list of media, and an operable fax machine or e-mail system. This can be a particular mindset of lawyers who seem at times to believe they could do all this by themselves, if only they had the time.

The PR-legal courtship has been a rocky one. As Karen Doyne of Burson-Masteller writes, "For a time, joint efforts were more competitive than cooperative. Lawyers typically considered PR to be somewhat distasteful and probably dangerous to their interests. Accustomed to a forum with rules and the ability to exert control over the process, attorneys couldn’t wrap their minds around the anarchy, uncertainty, and immediacy of media relations." If lawyers were arrogant, a lot of PR practitioners were just plain ignorant. Relatively few understood the basics of the legal system or the dynamics of communications during litigation. "PR people who failed to know and respect the lawyer’s mindset found themselves talking to brick walls. In the worst cases, public statements or other actions did real damage to the party’s legal position," Doyne emphasizes.

Not Just Crisis Communications

When we think of crisis, we remember the Coca Cola recall in Europe, the syringe-in-the-Pepsi-can incident, the classic cyanide lacing of Tylenol, and locally the Cebu Pacific plane crash. Crisis communications is a high pressure, high-stakes specialty that many individuals or firms excel at. But it is often confused with communication during litigation, and that confusion can cause unintended, even disastrous consequences.

At its essence, crisis communications is about immediate response – usually within 24 to 48 hours – that allows a client to limit the damage from a story about an incident or event that will affect the client’s reputation. LPR, on the other hand, unfolds over weeks and months (and sometimes years), not just days. Thus, the 24-to-48-hour crisis response model doesn’t work. Communications during the litigation process needs to follow the ebb and flow of the litigation itself, requiring a constant exertion of pressure – building relationships, telling a party’s story, explaining complex legal ideas and maneuverings, and building trust with our target audiences. Wise lawyers, clients, and communications consultants need to know when and how to apply the pressure, and how to cut through any interference to focus on activity that will help the client prevail in the long run.

LPR is less event-drive than traditional crisis response implementations. A high profile event can fall flat on its face with the media, who may see it as a less-than-subtle attempt to influence the outcome of litigation, where the issues are considerably more complex, and which at some point can stupefy even the best media reporter.

The CEO of a company may not be the most appropriate spokesperson in an LPR execution. It can be inappropriate and even damaging. In fact, LPR is one of the few areas where we can hand off the spokesperson’s role to one of the lawyers on the case without fear of repercussions. These are, after all, legal issues we are dealing with. The press and the public want to hear from the experts.

Haggerty’s book is indeed an eye-opener. It makes us understand why PR people must work with lawyers if they are working on legal issues that have strong potentials on negatively affecting company or brand image. PR people must have influence over communications strategy, as much as lawyers get more actively involved in the communications process, managing the case outside the courtroom.

LPR, as Doyne elaborates, "provides PR people an opportunity to secure a seat at the table where strategic business and legal decisions are made." There is a growing recognition, she continues, "that just as communications can play a role in legal strategy, legal actions often have impact on a firm’s reputation and relationships – a factor that is far better examined before the controversy hits than after." When legal and reputational goals collide, no one is better positioned than the communications professional to be sure executives make decisions with their eyes wide open.

LPR is here to stay. What with the continuing hearings on former President Erap’s plunder case, Kris Aquino suing GMA-7, Rosanna Roces bringing Vicky Belo and her enterprise to court, the reinstatement of Lucio Tan’s P25.6 billion tax evasion case, to name a few. Civil and criminal cases clog our courts. Under this dire situation, LPR will surely define the PR field for years to come.

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E-mail bongo@vasia.com or bongo@campaignsandgrey.net for comments, questions and suggestions.