Gone are the days when clients and PRs were not trusted with draft judgments. Nowadays Litigation Support communications professionals are an integral part of the core legal team. Seeing draft judgments in absolute confidence ahead of their finalisation and hand-down allows PRs to spot words which might be immaterial to the overall judgment, but which could be used by the media and the other side to punish the client or law firm involved; often judges will be willing to amend these points, if the argument is genuine and put very clearly and without fuss by the legal team.
Being aware of the draft text of judgments also allows litigation support PRs to internally prepare the narrative ahead of hand down, so we are out of the gate within minutes of the judgment being made public, not hours. The period of dead air after a judgment has been handed down is becoming shorter and shorter, with journalists and the other side increasingly keen to beat you – and each other – to both the metaphorical and literal microphone.
Speed is key. A pithy comment on a judgment will often go far and wide if it is given within minutes of the judgment being handed down. An hour’s delay and the other side will have beaten you to it, or the story will have been written, or in high-profile cases social media may have already gone off-message. Get out ahead and stay ahead in the mainstream media, and monitor it and social media closely, correcting misinformation where the readership and influence of any publication requires it.
Getting your message out before the other side means that your narrative shapes the press coverage, and at the very least is included in it. The alternative is a story of the case appearing without your take on what actually happened and what this really means, and possibly with mis- or even dis-information from the other side included in the earliest and often most important and far-reaching articles.
The digital footprint is key
Nowadays reputation is all about your and your clients’ digital footprint. It is therefore vital to stamp your mark on how legal cases are reported, before the ground hardens up. Once set, Google will faithfully display the results forever. At this point you will need to use news sites with a higher domain authority, or more powerful keywords, such as your target’s name in the headline, in order to haul your coverage above the misinformation from the other side on search engines. If coverage is factually inaccurate then your PR’s good relationship with journalists and their expertise in liaising with them day in and day out will pay dividends in getting a damaging word removed and replaced by a neutral or positive one, or by adding a rebuttal quote or balancing sentence of narrative nearby in the article.
In the rare cases where this does not succeed then an IPSO complaint or an approach to Google, and even the ICO if that does not work, will usually pay dividends. But these solutions require weeks rather than minutes, so as a general rule it is much better to simply brief the journalist on the correct position and stay on good terms with them for the next piece of your narrative, rather than to dig in. In order to win a media war, you will need to lose some battles along the way. We think of it like two boxers in a ring. You will land a knock-out punch on the other side, but they may give you the odd bloody nose along the way. PR is a contact sport.
So speed and agility is key. Speed means having your release and quotes ready in advance, and co-ordinating with those inside the courtroom to know the exact moment of technical hand-down. Agility means having all your quotes approved in advance by your clients and managing partner, as required. It also means having these teams available as the story unfolds, so we can think on our feet and give additional comments to block and counter false narratives and bolster accurate ones as they develop, whilst at all times putting out only approved content.
In this way adverse judgments can be absolutely managed and their collateral damage minimised. We can keep the media lens focussed on the good points for us or segue to the appeal and our statesmanlike reaction. This is a vital skill when the results of international commercial litigation can sometimes feel like a lottery. Good litigation PR ensures that you will win in the court of public opinion, whether you win or lose in the courtroom.
On the other hand, failure to deploy PR, particularly around a judgment which we believe will be favourable for our client, can allow the other side to pluck PR victory from the jaws of their legal defeat.
Engage with Litigation PR early
Do not only engage a specialist litigation PR team to manage news coverage around a judgment hand-down. Bring them in at the very outset of discussions with your client about their legal problems and objectives. The client will be impressed that you understand the overarching importance of their reputation and long-term goals, which often transcend even the most vital court action in any one jurisdiction.
Contrary to popular belief, there is wide latitude to comment on active public court cases. The strict liability rule in Section 1 of the Contempt of Court Act 1981 “applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”, and “only if the proceedings in question are active at the time of the publication”. And “a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith”. Furthermore, “a publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.”
Briefing packs setting out the history and background to the case can be created and distributed, provided that these stick to publicly available information, such as background information about the parties and a summary of judgments from analogous cases or previous litigation between the parties. It is also useful to agree key messages and prepare on the record comments in advance for win, lose and draw outcomes. Your PR should also invite key journalists to the hearing and sit discreetly in the back row of the courtroom with journalists, ready to brief them further on background, as well as on the key points which reinforce your messages, from their own contemporaneous notes of what was said in the proceedings. You should also ensure that transcripts of the hearing are provided to your key journalists as soon as possible on the day of the hearing, together with the key highlights and quotes for your case. To have the best possible control over this situation, your PR strategy can and often should inform the order of your pleadings and the tone of some of these, as the bulk of the press may only stay around for the opening statements.
Having the confidence, knowledge and contacts to bring in your specialist litigation PR team at the outset is good client management, and will ultimately benefit both the outcome of the litigation itself and the way in which it is perceived by both the client, their stakeholders, and the media. Effective litigation PR support is a vital part of optimising litigation outcomes for your client, like choosing the right counsel and expert witnesses.
Settlement PR
Often because high-stakes litigation can sometimes feel like a lottery, but also because your client’s reputation can often be much more valuable than even the very high value of the matter being litigated over, reaching a pre-trial settlement can be an increasingly attractive option in some cases.
And it may not even be because you are not confident about your case in law, it could rather be because the other side has comparably limitless resources, or because your client wants this case out of the way, to crack on with other deals, or the next, more important litigation.
Encouraging the other side to settle early is really a matter of media sabre-rattling: let them know how much collateral reputation damage will flow from a public fight, and that you are tooled up, not just from the legal perspective, but also from the reputational one. You know where some of their bodies are buried, and you have the tools to dig them up and parade them around the world.
And these need not be legal points, either. Collateral pain can be applied by exposing facts not directly linked to the litigation, but close enough to the beginning of a case or hearing that the other side will get the message.
Settlement PR can also be extremely effective when a claim is weak in law but the other side’s reputation is extremely valuable, especially if the other side can afford to settle and wants to move on. Sometimes by only promoting a letter before action in an effective way we can bring an adversary to the table, in advance of what would have been a risky and costly trial.
Witnesses and evidence
But good Litigation PR today is more than the effective promotion of judgments, letters before action, particulars of claim, defences, and even case management conference developments.
It can also be about using strategic research and communication skills to approach stakeholders for third-party support, or introducing evidence into the public domain, with or without going via the courtroom. In this respect less well-known, more specialist publications can be key. Their readerships may be smaller, but they will be more likely to go into the level of detail you need, giving you the right keyword hits, provided that they are also on Google News, like the larger publications.
Such information can be critical to the success of a litigation. Not only does it give colour to the background of the other side, but it can lay bare their false witness to the judge. Sometimes evidence of this type can only be countered by perjury on behalf of the other side, which opens them up to further legal and media attack.
Sometimes communications professionals working together with legal teams can be more effective than legal teams alone in handling witnesses. Often legal teams, guided by counsel, will take an unsympathetic approach to what witness statements must say. This can cause statements to be not released by witnesses, whereas an experienced litigation PR professional can carefully guide a witness to exactly the right point of pain and comfort, to ensure their optimum cooperation, even if their statement is not the textbook slam-dunk counsel wanted: much better to have a statement which is not perfect, but which does the job, than to lose it altogether.
Wider strategic considerations
At the highest level many commercial litigations have parts in common: regulators behaving badly, jurisdictions colluding, or common networks of corrupt individuals working together. By sharing knowledge and evidence across these cases, it is possible to enrich each one, bringing the fullest knowledge of the behaviour of the other side and their agents to bear in each case. Litigation PR plays a key role in analysing this data and researching previous and concurrent actions for additional bodies of evidence, as well as reaching across litigations which may share key aspects.
PR will also be able to advise on when a bad case is worth prosecuting, and – even more importantly – when a good case should be left alone, in the best interests of the client. This way clients build 100% confidence in their legal advisory team, developing long-term relationships which will last years, across multiple commercial litigations.
Legal billing can sometimes slump between cases, but clients need strategic reputational advice all the time; so by maintaining the integration with the litigation PR team between trials, legal teams can add value consistently, extending the client relationship, smoothing and increasing billing, and remaining in the client’s metaphorical and literal boardroom, ready to lead the charge with the clients and their PRs towards the next strategic litigation goal.