As seen in Business Law Today, Vol. 13, No. 6, July/August, 2004...

Putting the best face on it

Litigation in the Era of 24-Hour Cable News

By James F. Haggerty

As lawyers across the country have watched a string of high-profile criminal and civil cases unfold over the past year or so — not just in the courthouse, but on CNN, in the Wall Street Journal, and in the weekly news magazines — I can almost hear an audible sigh:

 
“Whew… I’m glad I don’t have to run that media gauntlet.”

 
Well, not yet. But soon.

 
“Luckily, I don’t work on matters that would attract so high a level of media interest.”

 
True, but if your client is an electronics manufacturer, Electrical Engineering Times may be as important as the New York Times. And if you are practicing in Miami, the South Florida Business Journal is almost certainly as important as the Wall Street Journal.

 
“The best response is always: No Comment.”

 
As Winston Churchill once said: “Never, never, never, never.”

 
Let’s face it: Most of us will never confront a feeding frenzy on the scale of Martha or Kobe or Michael, but in this media age, I can assure you that at some point in your work, you too will make an appearance in “the court of public opinion.” And in this information age, how well you navigate your client through the media minefield will be as important an element of effective representation as legal research, advocacy skills and negotiation.

 
It is not at all overstatement to say that the world in which most lawyers are practicing has changed immeasurably over the course of the past two decades. We have entered an era of 24-hour news, Web-blogging, and 500-channel cable boxes. In this new, media saturated environment, it is becoming increasingly clear that old approaches to media and public opinion just don’t work. As lawyers, we need to adjust — just as surely as we adjusted to online research, computerized document management and the electronic filing of pleadings.

 
Here’s a quick example of the way media coverage of business-oriented lawsuits has evolved. According to Nexis research, during the famed IBM antitrust lawsuit of the 1970s — which lasted approximately 15 years — the New York Times wrote approximately 500 stories on the case. Another well know case, the 14-year Polaroid v. Kodak patent litigation (which ended in the early 1990s), was the subject of 104 New York Times stories.

 
Fast forward. The Microsoft antitrust case? More than 1,000 New York Times stories between 1998 and 2001 — just 3 years!

 
Another statistic: A survey of the top 200 law departments revealed that nearly 50 percent regularly use public relations techniques when involved in litigation — and 22.9 percent use public relations either “often” or “always.” Welcome to the brave new world.

 
But, again, this begs the question: Is communications strategy in litigation only reserved for the “biggest” of matters, cases like the IBM antitrust case or the Polaroid patent suit? Absolutely not. Consider the following scenarios:

 
•  A software company looks to acquire a competitor. Will a “full-court press” in the legal and business media, explaining the advantages to the consumer and the fact that such a combination does not monopolize the industry, head off an antitrust investigation?

 
•  A community group threatens to sue a major restaurant chain for racial discrimination. Should the company aggressively dispute the charges in the media? Obliquely — or overtly — question the minister’ s motives? Or perhaps be somewhat more conciliatory in tone, reiterating the company’s commitment to equal opportunity and assuring a full investigation of the charges?

 
•  A major producer of construction materials learns that a media-savvy environmental group will soon go public with its intention to sue the company, alleging that one of its major products is a carcinogen. Should the company be preparing now to respond to the inevitable media frenzy? If so, how?

 
In each of the examples above, the company’s lawyers made media planning an integral part of their overall strategy – with considerable positive results.

 
How? Well, not necessarily with press releases, press conferences, or appearances on “Nightline,” but instead by ensuring that the issues in dispute are “framed” properly in minds of the various public audiences that will be considering these issues.

 
It should be pointed out that this is not “spin-doctoring” in the pejorative sense, and it doesn’t require anything untoward or unethical. In each of the examples above, lawyers on the cases imply ensured that efforts were taken to persuade nonlegal as well as legal audiences. More specifically:

 
•  In the possible antitrust case, the key facts and rationale for the merger were not buried deep within 50-100 page legal documents, but rather in short summaries that reached the heart of the competitive issues in the case.

•  In the racial discrimination case, an important strategic decision was made to offer conciliatory gestures early – in direct conflict with the established litigator’s mantra: “Concede nothing until you are forced to.”

•  In the possible tort claim, efforts were taken to ensure that the scientific aspects of the case were presented in a form non scientists (and nonlawyers) could understand.

 
So you see, there was nothing unethical and untoward about it. Rather it involves taking a lawyer’s natural persuasive skills and adapting them for a court of a different kind – where the rules of procedure are far more nuanced, amorphous, and difficult to enforce.

 
Should we be pressing our dark blue suits and adjusting our solid ties for an inevitable appearance on “The O’Reilly Factor”? Hardly. While I believe it is indisputable that communication and public opinion during litigation is now a critical component to the management of modern litigation, the camera-shy shouldn’t fear. We’re not talking about holding a press conference on the courthouse steps for every small claims suit that comes your way.

 
Sometimes, effective communication during litigation requires the feather light touch of a well-placed phone call to the right reporter, some times the sledgehammer of a satellite press conference or 50-market media blitz. It can mean communicating to external audiences like employees, investors, shareholders, and others with a vested interest in the organization. But it always requires thought. It always requires strategy. And it always requires careful execution.

 
And that’s the point. Communicating effectively during litigation is about managing the public opinion aspects of legal disputes as effectively as you manage any other aspect of the litigation or transaction. It is not an afterthought. It is not an extra. It is not something to be handed off to the client’s PR team or decided over drinks after a long, hard day of “real” legal work. Rather, in this new reality, communications is central to the strategic whole — whether you are confronting litigation, a regulatory investigation, a labor issue or any other type of legal dispute.

 
Yet despite this reality, lawyers who are otherwise minutely attuned to issues of perception — before a judge, before a witness, before the other side — seem to develop a bit of a tin ear when it comes to public perceptions of their case. They’ll do anything to gain an advantage over the other side, but fail to consider managing communications for that purpose.

 
Why? Well, lack of training plays a part. Let’s face it: Most lawyers who are now lead counsel to business clients came of age in the1970s or 1980s, before the advent of 24-hour cable news and the subsequent explosion of business news coverage. A time when the Wall Street Journal was one section in length, and the World Wide Web was just a twinkle in some computer geek’s eyes. For many lawyers, their training is as outdated as eight-track tapes and the rotary dial telephone.

 
Thus, invariably, lawyers and their clients come to my company with the following preconceived notions (let’s call them “PR myths”) about the procedure for handling their case:

•  If you want to announce something important, write a press release;

•  If you want to make an even bigger impression, hold a press conference;

•  The best way to get a story in the media is to speak to a reporter you know; and

•  Litigation is just like any other crisis — you need to get out all the information you can, as quickly as you can, to the widest possible target audience.

 
As an aside, it is exactly because these methods are so much like a set procedure that lawyers tend to fall prey to thinking that this is how you should handle communications in the litigation context. Lawyers eat, drink, and sleep procedure: Rules of Civil Procedure, Rules of Evidence, local court rules. When they need to know how to do something, they go to the library and find the proper procedural guide or formbook. It is natural, therefore, that they translate this thinking to communications in legal actions.

 
But while you can find the proper format for a press release, in many cases it is less the form that matters than the message — that is, conveying what’s important to your client and your cause in a manner that advances the broader business and strategic interests of the case.

 
And consider the fourth myth, just above. Many lawyers who counsel corporate clients may be familiar with crisis communications as a discipline, and may have even participated in crisis communications planning with their clients. They’ve read all about the Union Carbide explosion in Bhopal, India, or the cyanide in the Tylenol case. But when the crisis in question is a legal dispute, lawyers and clients alike need to realize that there will be many circumstances where the traditional rules of crisis communications just don’t apply.

 
How does communication during a lawsuit differ from crisis communications? At its essence, crisis communications is about immediate response — response that allows a client, usually a corporation, to limit the damage from a story about an incident or event that will affect the reputation of the client. Some of the major elements of effective crisis communication include the following:

 
•  Having a crisis plan and a crisis team in place well before a crisis ever occurs. As mentioned, this is called crisis communications planning, an activity many corporations have undertaken in recent years to prepare for the sudden, immediate crisis that can damage their company forever.

•  Alerting the crisis team at the earliest possible moment, so that the crisis plan can be put into effect at the outset of the event.

•  Securing the site or crisis location (if there is one) to limit access and prevent unwanted leaks or other dissemination of information.

•  Assembling all the facts, to ensure that accurate information is flowing to the media.

•  Having a spokesperson ready to communicate to the media — the higher up in the organization the better (and in the best-case scenario, never, never, never the company’s lawyer or PR representative).

Virtually all of this activity happens within the first 24 to 48 hours after a crisis has occurred. Companies and consultants skilled at crisis communications are usually ready to respond to any crisis, anywhere, at a moment’s notice.

 
While all of this may be necessary when the crisis in question is a lawsuit, litigation PR is much more than that — and strict reliance on classic crisis communications techniques can at times do more harm than good in the litigation context.

 
Why is communications during litigation so different? Consider the following:

 
•  Litigation unfolds over weeks, months and sometimes years, not days. Therefore, the 24- to 48-hour crisis response model usually doesn’t work. Instead, communications during the litigation process needs to follow the ebb and flow of the litigation itself. This requires a constant exertion of pressure — building relationships, telling a party’s story, explaining complex legal ideas and maneuverings, building trust with your target audiences (including media, regulators, and the public at-large). Absent this foundation, other efforts tend to crumble. Wise lawyers, clients and their communications consultants need to know when and how to apply the activity that will help the client prevail in the long run.

•  Litigation is less event-driven than traditional crisis communications. More often than not, the big event — the rally, the press conference, the petition drive — is less effective here, where the story is stretched out over months, if not years. Usually an event strategy falls flat on its face with the media, who see it as a less-than-subtle attempt to influence the outcome of litigation.

•  In litigation, the issues involved are usually complex. Unlike other areas of public relations — including most forms of crisis communications — legal disputes often involve issues that are stupefying in their complexity. Distilling the complexities of a particular court case into a format that reporters can easily digest is an art form most communications counselors don’t routinely have to master.

•  In litigation, the client may not be the most appropriate spokesperson. This flies in the face of one of the central tenets of crisis communications, but it’s true. Sometimes, positioning the client — whether it be a CEO, an organization or a high-profile individual — as spokesperson for the case is inappropriate and even damaging. In fact, litigation PR is one of the few areas where you can hand off the spokesperson role to one of the lawyers on the case without fear of repercussions. These are, after all, legal issues. The press and the public want to hear from the real “experts” on the case — in this case, the litigators handling the matter.

 
These are just some of the differences. Thus , classic PR techniques — even crisis communications techniques — can fall far short of what is needed to properly do the job in litigation PR. A widely disseminated press release, a press conference, or a rally of supporters may be far less useful than the highly targeted story that reaches the right audience with the right message.

 
The importance of such public relations planning to the litigation process will likely only grow in years to come. As individuals, investors, corporations and governments, we are unquestionably affected by this constant barrage of media messages. Why should our judicial process be any different? After all, litigation opponents, potential jurors — and even judges — respond to the same external stimuli as the rest of the world. Influencing the content of such stimuli, therefore, can have a subtle but direct effect on the framework of the entire litigation process.

 
It might even be argued that the day has arrived when a litigation team that does not consider the media aspects of a case has done the client a grave disservice. Lack of such a strategy limits the lawyer’s effectiveness as an advocate for the client’s cause.

 
Does it rise to the level of malpractice? Probably not — or at least not yet. But imagine a defendant today proceeding to trial in a products liability case without the advice and opinion of an expert witness on the design and manufacture of the product involved. Or a lawyer arguing a motion without having researched the relevant case law online. Or a major litigation proceeding without the benefit of document management software. This might not have been considered malpractice 50 years ago. But today?

 
Ultimately, cases will still be decided in the courtroom — or, at least, at the settlement table. But increasingly, those who effectively influence the content of the media coverage will set the framework for settlement negotiations and the perspective from which judge and jury view the case.