LAWSUITS or class actions are now part of first-world business landscapes. And although you can challenge an unfavorable court decision on a legal case, there is no right of appeal in the court of public opinion, where the stakes can be much higher, making or breaking the reputation of a brand, a company or a person. These factors have given rise to a communication practice, a niche in the public-relations (PR) horizon. It’s on many lists these days, and it’s called litigation PR (LPR). And from the way the information economy is moving, it’s a tool that will eventually be a staple in the menu of services of PR agencies, as well as the list of functions of in-house PR practitioners in the Philippines.
What is LPR?
James F. Haggerty in his book In the Court of Public Opinion: Winning Your Case with Public Relations defines it as “managing the communications process during the course of any legal dispute or adjudicatory proceeding so as to affect the outcome or its impact on the client’s overall reputation.” It is the tandem of lawyers and legally qualified communications experts, working hand in hand with legal counsel, focusing on events outside the courtroom. It involves managing the cycle of crisis, which, if left unabated, can escalate and wreck professional image or personal stature.
In the context of litigation and other legal disputes, winning your case in the court of public opinion can mean many things. It can mean convincing a plaintiff (or prosecutor or government regulator) not to file a lawsuit in the first place, and convincing a defendant that you mean business. And that despite the defendant’s outsized resources, the case is not going away. It is also all about getting the other side to realize the damage to their reputation will be great, and thus, settlement ought to be top-of-mind.
It can mean preventing copycat lawsuits from other parties looking to capitalize on a company’s travails, and tailoring a settlement in ways that limit the PR or public-opinion damage, if not outright victory in the courthouse. Haggerty, who is both a lawyer and a PR communicator—a rare combination indeed—believes PR can be instrumental in bringing about the resolutions described above. In fact, on many occasions, he said, “Effective communications can be the deciding factor.”
Tell it like it is, not to qualify, differentiate or window dress the message being projected. While victory can be had in the court of public opinion without a victory in the courtroom, your legal victory doesn’t amount much, if, in the process, you sacrifice reputation, corporate character and all of 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. Remember, a competitor acting as a predator lurks around when a brand or company is under assault. A sensible legal mind would recommend an alternative to the courtroom drama played out in full public gaze; maybe saving company money and spending it on something that can bring more enjoyment.
Not just a lather, rinse and repeat method. LPR is not simply press conferences on the courthouse, mass-produced and distributed press releases, and late-night shout fests on public-affairs programs. A large majority of lawsuits settle before trial, thus, much of LPR takes place, as well, before the case ever makes it to the court.
The traditional look of PR is it is handled in this manner: Write the press release, prepare the media list, send the press to media and then repeat steps one to three. This method unfortunately doesn’t work, unless you’re publicizing a simple product, like a detergent bar. Applied in LPR, it can, in fact, do more harm than good if you send the wrong message to the wrong audience at the wrong time. Why don’t these tactics work? They fail primarily because they reinforce the idea that PR is mindless work, and it is just about connections. 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 a particular mind-set of lawyers who seem, at times, to believe they could 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 writes, “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 mind-set 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 Cebu Pacific plane crash. 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. And that allows a client to limit the damage from a story about an incident or event that will affect the client’s reputation. LPR 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.
LPR 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.
The CEO of a company is not the most appropriate spokesman in an LPR execution. It can be inappropriate and even damaging. In fact, LPR is one of the few areas where you can hand off the spokesman’s role to one of the lawyers on the case without fear of repercussions. These are, after all, legal issues you are dealing with. The press and the public want to hear from the experts.
PR people must work with lawyers if they are working on legal issues that have strong potentials on negatively affecting company or brand image. PR people must have influence over a communications strategy, as much as lawyers get more actively involved in the communications process, managing the case outside the courtroom.
LPR, 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, she continues, “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.”
When legal and reputational goals collide, no one is better positioned than the communications professional to be sure executives make decisions with their eyes wide open.
LPR is here to stay. Civil and criminal cases clog our courts. Under this dire situation, LPR surely defines the PR field for years to come.
PR Matters is a roundtable column by members of the local chapter of the UK-based International Public Relations Association (IPRA), the world‘s premier organization for PR professionals around the world. Bong Osorio is the communications Consultant and spokesman of ABS-CBN Corp.
We are devoting a special column each month to answer our readers‘ questions about public relations. Please send your questions or comments to askipraphil@gmail.com