When lawyers and communicators work together
The continuing senate and Congress hearings on the Armed Forces of the Philippines’ fund mess and other high-profile business, entertainment, lifestyle, and politics-led civil and criminal cases are clogging our courts. Lawsuits or class actions are now part of the business and lifestyle landscapes. And the truth is, you can appeal an unfavorable court decision on a legal case, but such is non-existent in the court of public opinion, where the stakes can be more critical. It can be a make-or-break situation for the reputation of a person, brand, or company.
These phenomena have given rise to what is labeled as litigation PR, a niche communication practice that responds to the fast-moving and exploding information economy. It will be in active use for years to come and may even become a staple on the menu of services of PR agencies, as well as the list of functions of in-house communicators in the country.
James F. Haggerty, in his book In the Court of Public Opinion: Winning Your Case with Public Relations, defined litigation PR as “managing the communications process during the course of any legal dispute so as to affect the outcome or its impact on the client’s overall reputation.” In the process, a tandem of lawyers and legally qualified communications experts work hand in hand with the legal counsel, and they focus on events outside the courtroom. The process involves managing the cycle of crisis, which, if left unabated, can escalate and wreck someone’s image or stature.
In the context of legal disputes, winning your case in the court of public opinion can mean many things: It is convincing a plaintiff, a prosecutor, or a government regulator not to file a lawsuit in the first place, and encouraging a defendant that you mean business. It is also getting the other side to realize that the damage to their reputation will be great, and thus, settlement should be top of mind. It is preventing copycat lawsuits from other parties that take advantage of the company’s travails. It is tailoring a settlement in ways that limit the PR or public opinion damage, if not outright victory in the courthouse.
Haggerty believes that public relations can be instrumental in bringing about the resolutions described above. On many occasions, he stressed, “Effective communications can be the deciding factor.” As such, he advises his clients to tell it like it is, not to qualify, differentiate or window-dress the message being projected. He believes that while victory can be had in the court of public opinion without a victory in the courtroom, your legal victory doesn’t amount to much if in the process you sacrifice reputation, corporate character and all the other elements that make up an organization’s goodwill in the marketplace.
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. A competitor acting as predator and lurking around when a brand or company is under assault is an expected occurrence. Thus, a sensible legal mind finds an alternative to the courtroom drama played out in full public gaze, which can save personal or company funds that can be channeled somewhere else.
Litigation PR is not just holding press conferences in the courthouse, mass-producing and distributing press releases, or appearing on late-night TV talk shows and documentaries. A large majority of lawsuits settle before trial; thus, much of the litigation PR takes place well before the case ever makes it to court.
The traditional look of PR is that it is handled this way: write the press release, prepare the media list, send the press release to media and then monitor the pickups. This is the “lather, rinse, repeat” method, which may work when publicizing a simple product like a shampoo or cup noodle, but may not in court cases. As Haggerty observed, it can even do more harm than good if you send the wrong message to the wrong audience at the wrong time. These expected tactics fail primarily because they reinforce the idea that PR is just about connections, and that anyone can do the job of getting information out there with the proper writing skills, the right list of media, and an operable e-mail system. This can be the particular mindset of lawyers who seem at times to believe they can 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 wrote, “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 emphasized.
When you think of crisis, you remember the Coca-Cola recall in Europe, the syringe-in-the-Pepsi-can incident, the classic cyanide lacing of Tylenol, and locally the Sulpicio Lines tragedy, the Manila bus siege and the Etton Tower accident. 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.
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. Litigation PR, 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 your 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.
Litigation PR is less event-driven 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.
Haggerty underscored that the CEO of a company may not be the most appropriate spokesperson in a litigation PR execution. It can be inappropriate and even damaging. In fact, litigation PR is one of the few areas where you 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 you are dealing with, and the press and the public would like 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 a strong potential for affecting company or brand image negatively. 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.
Litigation PR, as Doyne elaborated, 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 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,” she added. When legal and reputation-led goals collide, no one is better positioned than the communications professional to make sure executives make decisions with their eyes wide open.
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E-mail bongosorio@yahoo.comor bong_osorio@abs-cbn.comfor comments, questions or suggestions. Thank you for communicating.
