As seen in Executive Counsel, July, 2004...

The Litigation Media Checklist
A Tool For Managing Legal Communication Risk

By James F. Haggerty

     Senior executives and their counsel usually understand the importance of proper procedures and systems for fostering effective legal risk management. Surprisingly, however, assessing and responding to potential public relations risk in legal issues remains a blind spot in the field of corporate vision.

    Simply put: most organizations just don’t have a system in place to recognize when a legal problem is going to become a public relations problem. Usually recognition and reaction — doesn’t begin until after the first reporter calls, the first petition is signed, or the first congressional hearing is scheduled. By then, in most cases, it’s too late.

    Despite all of the systems and procedures endemic to the modern corporation, flying by the seat of your pants (to mix metaphors) is the rule of thumb when addressing what might be called “Legal Communication Risk.” Most business executives and lawyers rely on gut instincts, intuition, and chance — hoping that someone, somewhere along the way, is going to notice the case or other legal matter before it explodes into a public relations nightmare.

    Why is this? Why are the legal/public opinion problems that will be on the front page tomorrow so darn hard to see today? Why aren’t modern companies — so advanced in so many other areas of assessing risk and responding appropriately — better prepared?

    Part of the reason may lie in the nature of the risk. For years there was no need to assess legal issues for potential public relations and public opinion impact. Traditionally, the public relations function and legal function of a corporation grew up separate and independent of each other. Different cultures, different floors of the corporate headquarters, different lines of reporting. There was little interaction between the departments. And, quite frankly, each department preferred it that way. PR and legal departments were, historically, working in opposition on many fronts, rather than working in tandem.

    But the world has changed. The modern era brings with it the 24-hour news cycle, the Internet, and an explosion of business and legal coverage. Legal issues in all their complexity are now fair game for public attention, in a way inconceivable 20, or even 10 years ago. In addition, regulation now extends into virtually every area of corporate behavior, and with regulation comes regulators and legislators, each with their own agenda, ego and bully pulpit. Law, media and public opinion issues have, in many instances, merged. PR and legal departments in modern corporations have to start working together now. There’s little choice.

    Thus the need to put the proper analysis and reporting systems in place, to start bringing the two functions together in order to asses legal communications risk.

    One tool to advance this effort is a simple system that I call the “Litigation Media Checklist” — although. Obviously, litigation is only one type of legal dispute that a corporation may find itself facing, and media may ultimately be only one of the audiences. If you are in a highly regulated field like telecommunications or healthcare, for instance, you may want to consider additional questions on regulatory concerns. No matter. The Litigation Media Checklist described below gives a basic format that should guide corporate executives and their lawyers as they develop their own individual systems tailored to their own organization’s needs.

    One other caveat: some of these may seem obvious. But I say, based on more than a decade of experience, that these are the elements of otherwise routine legal matters often missed when considering potential public opinion interest, and with devastating results.

    The checklist below is designed to be a simple tool through which legal issues confronting the confronting the corporation should be run to assess the chances that the issue might eventually wind up in a court of public opinion as well as a court of law . Some questions you might ask at the outset include:

1. IS THE LAWSUIT UNIQUE, OUT-OF-THE-ORDINARY , OR OTHERWISE “MAN-BITES-DOG?”

    Applying the maxim, “man bites dog” is likely the clearest test for determining whether a case will be of interest to the media or other public audiences. Is there something unique about the facts of your case that make it distinctive or unusual, against conventional wisdom or otherwise contra (as lawyers say) to all of the other cases that are out there? Is your case the opposite of what you might usually expect?

    An example: in the early 1990s, we advised on a financial services case involving a man who worked at a bank and had been sexually harassed by his superior. Okay that’s interesting enough, since men are far less likely to be harassed than women. But otherwise it was a typical example of quid-pro-quo harassment (in other words “You’ll get ahead in this company if you…”). But here’s the kicker: The harasser was also a man. Same-sex harassment was still rare at the time, and absolutely “man bites dog.” Hence, a natural for media coverage and other public interest.

2. DOES THE CASE INVOLVE SENSATIONAL FACTS?

There are facts and then there are FACTS. Suffice it to say, if your case involves:

•  Political figures,

•  Organized crime,

•  Rich versus poor, or

•  Sex

…you can expect a call from the media, regardless of how otherwise mundane the particular legal issue or dispute. The more sensational your facts, the more likely they are going to catch the interest of the media. Never has this been truer than today, in the era of reality TV, Howard Stern, Jerry Springer, etc. Again, sexual harassment cases in particular lend themselves to “sensational” facts. In most cases, the law is the same throughout. This is where many lawyers, and otherwise savvy corporate executives, get tripped up. Take the right set of facts, mix ‘em up, and you’ve got a real media circus on your hands, regardless of whether the case is, in all other respects, the same as any other.

3. DOES THE CASE INVOLVE BIG NUMBERS?

    The simple rule here: the larger the sum of money at stake, the more likely the media will be interested. And to go even further: “Largest ever” will always make news. In fact, “how much” is usually the first question out of any good reporter’s mouth. When a corporate client is a plaintiff, therefore, one of the things we do — since the actual damages may not be apparent at the beginning of the case — is try to get the client and their lawyers to determine just how big the claim might potentially be. When you are a plaintiff, nothing works better than to say to the media: “This case has the potential to be the largest case of its kind in history.”

    On the defense side, we want to know whether the other side is going to use that bullet to generate media interest, so we can more accurately gauge how to counteract it. It’s not always easy to get this information, particularly from the attorneys in the case, who do not want to over-promise the client on the plaintiff’s side, or embolden the plaintiff’s lawyers (and scare the hell out of the client) on the defense side. Executives and their legal team don’t usually like to think of cases in such terms. It’s very scary to them. But such information can be critical for proper planning of media response.

4. ARE THE PARTIES TO THE SUIT WELL-KNOWN OR OTHERWISE HIGH PROFILE?

    This is perhaps the easiest question to answer. Shoplifting is shoplifting, but Winona Ryder is news. Celebrities immediately make a legal matter newsworthy. If O.J. Simpson hadn’t been O.J. Simpson, maybe you get five inches in the Los Angeles Times, depending on what kind of news day it is otherwise. He could have done it in the library with the candlestick. It wouldn’t have mattered. In our celebrity-obsessed culture, names make news.

    But here’s something to remember about this whole “celebrity issue.” It’s a relative ter. Depending on where you are and the audience you reach, a party to a lawsuit can be a celebrity without even knowing it. If you are a prominent CEO or leading lawyer in Kansas City , you’re a celebrity in Kansas City as sure as Brad Pitt or Julia Roberts is nationally. This is true whether you’re thinking about regional audiences such as the Kansas City Star, or trade audiences covering your field. If you’re the founder of one of the nation’s largest medical products manufacturers, expect a call from Modern Healthcare. There’s a fairly good chance they are going to be interested in your case, no matter whether the story is newsworthy or otherwise.

5. IS IT A CASE THAT WILL MERIT ATTENTION IN THE REGIONAL OR TRADE MEDIA?

     Building on that last point, there may be cases that don’t necessarily involve a celebrity, but still will be of interest to the regional media in your hometown, or the trade media that covers your business or industry. Although Larry King may not be banging down your door, if you own a company in, say, Tampa, Florida, coverage from the Tampa Tribune, the St. Petersburg Times, or the Tampa Bay Business Review may be just as important to you, your customers, and the overall health of your enterprise as anything that might appear nationally. Similarly, a case that won’t necessarily make Newsweek may be of interest to Information Week — if that’s the trade publication covering your industry. The heat may not be as intense as that which accompanies a case of national importance, but the effect of media coverage on the course of the litigation and the company’s overall reputation can be just as devastating.

6. DOES THE CASE MAKE NEW LAW?

    I hesitate to include this item in our sample checklist, simply because it is usually the only criterion most attorneys consider when considering the import of a particular case, since they are trained to look for such distinctions. But it is an element of media coverage, and important to take into consideration when planning media strategy. Potential new law can raise media interest, particularly if it is combined with another criterion, such as a trend, a celebrity litigant, or a large amount of money.

7. DOES THE CASE INVOLVE A NEW APPLICATION OF OLD LAW?

    This is very different from the last criterion. In this category, the case takes established law and applies it to a new area. It is true that many cases that cross lawyers’ desks involve slightly different applications of old law. No two fact patterns are the same. But in assessing PR exposure, the legal and communications team need to look carefully at the case to determine if, indeed, the facts have enough “freshness” to them to warrant media coverage.

    The same-sex sexual harassment case in checklist item #1 is a good example here as well. Only a single fact had changed: The harasser and the subject of harassment were of the same sex. Change any other facts of the case and the broader public interest would have been minimal. It was the “freshness” of the new fact that made all the difference.

8. IS THE AREA OF THE LAW CONSIDERED ‘HOT’ BY THE MEDIA RIGHT NOW?

    Several Years removed from the dot-com boom, I can barely remember what “convergence” was, but in 1999 and 2000, I know it was hot. The client we were working for had a joint venture agreement that prevented one of the world’s biggest media moguls from getting into Internet-related ventures without paying a hefty fee to our client. In 1999 and 2000, this generated instant media interest. What’s “hot” right now is one of the key variables that will influence whether a case receives real media interest. Consider the flip-side: we are currently working with a shareholder fraud lawyer who is on CNNa dn CNBC twice a week regarding the cases he’s involved with. In the late 1990s we couldn’t have booked him on public access cable. No one was doing corporate malfeasance or fraud stories then. Now you can’t get away from them.

9. DOES THE CASE HAVE A COMPELLING ‘HUMAN FACE’?

    What makes a legal matter a “story?” Whether its Dateline or Newsweek, the “human face” of litigation and other legal issues can be a huge factor in determining ultimate media interest. If I am the victim of shareholder fraud, it’s one thing. If it’s my grandmother, quite another. It’s not the fraud that will make or break the story. The particular fact patterns that put the flesh on the raw legal bones are what bring the impact of the litigation or legal dispute home for media outlet’s readers or viewers.

10. DOES THE CASE INDICATE A REND OR HAVE BROADER IMPLICATIONS AS A BUSINESS STORY?

    When a single lawsuit is filed, public attention will naturally focus on that case. Two cases? Then the “trend” becomes the story.

    Trend stories are some of the major types of news reporting. But we’re not just talking about trends in the legal sense, e.g. that the law is trending toward more protections in the workplace, or the Supreme Court has been trending away from its century-long erosion of states’ rights. When dealing with the public aspects of legal issues, we’re also talking about other types of trends: industry trends, factual trends, trends in the types of “human” stories reporters are seeing out there each day.

    Similarly, media love stories of lawsuits that somehow hold a deeper significance for the business world. So when assessing the legal issues facing the corporation, the legal and communications teams should be asking: Does this hold a broader significance for the company’s particular industry, or for the business environment as a whole? Is it an outsourcing issue, for example? Bribery allegations in third world markets? Sarbanes/Oxley violations? Antitrust or intellectual property issues in the software industry? These issues might lead to public interest not just in the case or matter facing your company, but to the industry as a whole.

11. IS THERE A POLITICAL OR REGULATORY ASPECT THAT WILL ATTRACT INTEREST IN THE CASE?

    There are various aspects of state and federal investigations and regulatory proceedings that bring special problems and issues when managing the communications aspects of the claims. There are also many cases that have significant public policy ramifications, and cases like these will also engender considerable public and media interest. Like a business trend story, these types of legal issues might generate public interest based not on the case itself, but on the wider public policy ramifications of the case.

    A shareholder fraud allegation might turn into an SEC investigation. An EEOC might see repeated claims of discrimination and decide to take a closer look at a particular company and its hiring and promotional practices. A politician might seize on a medical malpractice case to push for reform of HMOs and their treatment decisions.

    In each instance, the litigant is fighting two separate issues: the investigation or regulatory or political action on the one hand, and the increased media attention that such activity will bring to the original lawsuit on the other. In the glare of political or regulatory investigation, even the most run-of-the-mill business lawsuit can wind up as fodder for the nightly news.

12. DOES THE OPPOSING COUNSEL HAVE A HISTORY OF PUBLICIZING HIS OR HER CASES?

    This is a much overlooked element of assessing potential PR and public opinion ramifications of a case, but it is critical. When working for the defense in a case, one of the first things we check on is the opposing counsel and their predisposition and willingness to use the media in the course of the lawsuit. Just as litigators want information, on the general techniques the other side uses in the court (and the pre trial stage), so do we want information on opposing counsel’s ability to use the media and other public attention, and whether this is really a weapon in this particular litigator’s arsenal. As much as any element of our checklist, this is a key factor in determining how much media interest will be generated by the law suit, or how little.

    These are just some examples of the elements that a corporation might include in its own checklist to ensure that the legal issues that confront the organization are being assessed for public, as well as legal, impact. The goal here is not to launch a full-fledged PR campaign for every legal issue that crosses a CEO or general counsel’s desk. Rather, it is to ensure that the proper systems and procedures are in place to assess the various factual elements of the matters that are developing on the horizon, to ensure that today’s legal issue is not primed to become tomorrow’s front-page news.