High-profile litigation is by definition newsworthy. Indeed, the courts provide a consistent source of real life drama for the print, broadcast and online media. Whether the case involves high stakes, well-known personalities, or even both, the public has a fascination with the courts.

People are interested in the issues and the personalities involved in high-profile cases. The attorneys, of course, are focused on the legal questions and the ultimate outcome – the judge’s ruling or the jury’s verdict. In the world outside the courtroom, however, it’s not just the legal opinions that matter; it’s also the public perception that has been generated by the news coverage of the trial. In the long run, public opinion may be more important than the case itself.

A corporation may overcome a legal setback, or win its case in court, but find itself hobbled by a negative public image that has been generated by its opponents in the litigation. A company after all depends on its reputation to sell products or services. A badly damaged reputation can have a serious, long-lasting financial impact. In the end, it may be the public opinion, rather than the legal opinion that is the deciding factor in the long-term health of the company.

While the news business seeks drama, the legal profession is a much more traditional one that still in many quarters tends to frown on publicity. It was just over 30 years ago that the U. S. Supreme Court opened the way for attorney advertising in its 1977 ruling in Bates v. State Bar of Arizona – a case involving a legal clinic fighting  the traditional ban on advertising by attorneys. The same kind of reluctance that the legal profession showed to promoting its services still lingers when it comes to the publicity in a high-profile case. Many attorneys, and their clients, simply feel that they should not engage the wider public in a dispute that will ultimately be decided in the courtroom. That reluctance can have serious consequences in today’s media-saturated world.

One crucial point is that business news coverage has changed dramatically in recent years. Where once business news was relegated to the inside section of newspapers, it’s now front page news. Besides newspapers, cable and satellite television now offer a host of business programs. Together, this means that business news now travels faster and has a greater impact on a far larger number of people than ever before. Corporations need to be aware that their customers are part of this new audience. As they absorb the daily news generated by a high-profile case, they begin to form their own opinion of each side. If only one side is presenting its case to the public, the other side risks losing by default. This makes relying on a “no-comment” strategy dangerous. This is where the growing practice of litigation communication can help.

Litigation Communications Protects the Client’s Reputation

Litigation communications works hand-in-hand with the legal strategy in a given case. As attorneys make their case, litigation communications professionals work to inform the public about the case and to explain their positions. An effective litigation communications strategy is not about spin; rather, it is about providing timely, accurate information that will support the legal effort while safeguarding and burnishing the client’s reputation among the wider public. 

While attorneys for one side may feel the traditional reluctance to engage the press, it’s quite likely that opposing counsel will not. In fact, many lawyers have become very media savvy and use the press to boost their client’s position as well as heighten their own profile. Corporations also face legal challenges from a host of media-savvy interest groups who are quite adept at framing coverage and staging events to their best advantage. These groups know that even if they fail on court on one case, the media events they have staged will help to build public support for their position going forward. By not engaging in this debate outside of the courtroom, a company leaves the public with only one side of the story. That failure to engage the public may be more costly in the long run than a loss in court.

This doesn’t mean that a law firm should become overly aggressive in dealing with the media. That would be counterproductive and indeed could harm the firm’s own reputation. It does mean that the law firm should engage with the media to protect its client’s interests by taking a thoughtful approach with a well-developed litigation communications strategy. This effort will require public relations expertise to make sure that the media is being addressed in the way most likely to get the client’s position across.

The idea is to provide timely and accurate comment and information so that the media can produce more balanced stories. A “no comment” will only be one sentence in a news story reporting on a new lawsuit or a court ruling. If opposing counsel is available to the media to explain its position, the news story will focus on their side.

To guard against misinformation and one-sided news stories, litigation communications professionals work with the media to ensure that their side of the story is being told. This involves building relationships with reporters covering the case. It also requires making sure that these reporters have access to the right background information and that they have been briefed as to legal and other facts supporting a client’s position. A helpful aid is developing concise background material and talking points ahead of time.

The litigation communications strategy should focus its efforts around key milestones in the case. Except in the most high profile cases, the media is likely only to cover key hearings and witnesses as well as certain court dates, including opening statements and closing arguments. Litigation communications professionals should ensure that they reach out to media before these key benchmarks and be prepared to respond immediately.

As part of that response strategy, a well-trained spokesperson comfortable talking with the press should be identified. This spokesperson should be thoroughly briefed on all the issues in the case and ready to respond quickly to inaccurate speculation and misinformation. Coverage of the case should be closely monitored to make sure that misperceptions do not go unchallenged. This task is more difficult today in a very diverse media environment where bloggers and other online commentators may have as much impact on a company’s reputation as traditional media.

Protecting Attorney-Client Privilege

The litigation communications strategy should be structured so that attorney-client privilege will apply to confidential information being discussed by attorneys with the litigation communications team. For this reason, litigation communications counsel should be engaged by the law firm, rather than by the client itself. The engagement should reflect that the retention of litigation communications counsel is to provide advice for the specific legal crisis and should state that the advice is not for the client directly or for a general media or public relations campaign.

The key steps in a litigation communications strategy are to develop the strategy in advance. The strategy should include the recruitment of third-party allies, such as academics and consumer advocates to support the client’s position in the media. Designated spokespeople should be identified and trained to handle media queries and to ensure that the messages stay on point. The next step is to work with the media to ensure that the client’s message gets out and when the case is resolved, to measure the success of the strategy to make sure that future efforts are effective.

With today’s media focus on business news and litigation, attorneys ignore public opinion at their own peril, and at the risk of significant damage to their client’s reputation. Litigation communications combines legal expertise with media relations savvy to ensure that the client’s case is heard on all fronts, both in the courtroom and in the court of public opinion.