A number of years ago, a reporter I know said he had to literally chase lawyers down the street to get them to talk to him. Lawyers talk more to the media these days, but more significantly a lot of them are now using litigation PR.
Litigation PR serves a few purposes: it's a tactical way for lawyers to help win a case, defend a client against a case or try to influence a case in their client's favor. It's also led to a cottage industry in the PR business: the litigation PR specialist.
While litigation PR can also be connected to a crisis with some of the similar skills needed for PR in both instances, it’s a unique subset of PR.
It used to be that most of the time when a lawsuit was filed, the lawyers would not comment, but plaintiffs' lawyers (the ones bringing the lawsuit) would more often than not choose to speak. Nowadays, many corporate and defense lawyers are either talking or making their client's side known in a variety of ways. (Of course, sometimes they won't talk; they are still lawyers, after all.)
More and more, lawyers are making sure reporters have access to court documents in the case or even things outside of the case that make the other side look bad. Sometimes both sides in a case are talking to the press; on some occasions the judge then steps in and puts in a gag order saying the lawyers need to stop talking to reporters.
These issues can crop up in both criminal cases, brought by prosecutors, and civil cases where two sides are facing off over civil damages.
One could argue that today's litigation PR is the inevitable result of the O.J. Simpson case 20 years ago when a big trial took over the media. In that case, the lawyers, the judge, PR people and the media all saw the beginnings of litigation PR.
Nowadays, we not only have PR people specializing in litigation PR but also media specializing in legal affairs and courthouse coverage. In many courthouses, there are press rooms for media to keep up with court cases, making them one-stop shopping for lawyers and PR people.
The new wild card in litigation is the rise of social media. Unlike in traditional news media, the public has a say beyond a mere letter to the editor—a big say, in the form of countless posts. PR people, lawyers and third parties brought in to help your client can post as well, but in a big national case, it can be hard to get your voice heard among hundreds or thousands of tweets. Imagine if the O.J. trial had been held in a time of Twitter. Judge Ito would have gone nuts.
Overall, the goal of litigation PR is to influence public opinion and the courtroom. One can also hope the other side might settle sooner in the face of negative press stemming from litigation PR. Additionally, if it's a company on the other side, they are worried about negative press and the impact on its brand and stock. But from the get go of a lawsuit, litigation PR also allows one side or the other or both to have a plan on responding, so there isn't a vacuum of “no comment” on their behalf.
To some, such techniques might seem like PR hardball, but when there is a bet-the-company case or the litigation and media coverage starts going after your client personally, it's a fighting-fire-with-fire litigation tactic.
Some Tips When You're Doing Litigation PR
To be on solid ground, have evidence to support what you are pitching the press in litigation PR; they will want it. You also don't want to do anything even remotely illegal and you don't want to upset a judge and force them to impose a gag order. If you are unsure about a PR tactic in litigation PR, ask your boss or one of the lawyers involved in the case. After all, you don't want to create additional legal problems for you or your client.
Examples of Litigation PR and an Instance When It Backfired
According to trade press reports, Kekst is currently representing Elaine Wynn, co-founder of Wynn Resorts, in a high-profile crisis: a family legal fight over the casino company. On the other side, Steve Wynn is using Joele Frank for his PR in the feud. Separately, Kekst is also representing billionaire Joseph Safra on PR in connection with corruption charges in Brazil.
One PR executive getting into trouble using litigation PR was John Scanlon, whose client was Brown & Williamson Tobacco. In going after tobacco whistleblower Jeffrey Wigand, Scanlon, as portrayed in the movie The Insider, provided The Wall Street Journal with a lengthy dossier on Wigand to damage his reputation during an ongoing probe of B&W. According to Scanlon's obituary in The New York Times, it blew up in his face, when the WSJ reported many charges were untrue or unsupported.
More Tips for Litigation PR
- Keep the message simple; change it as needed to keep up with developments.
- Use the web and all social media channels wisely.
- Have one designated spokesperson with one consistent message.
- Hire a litigation PR agency. They do this for a living.
- Keep up with the client's use of email and social media. Keep them on the reservation.
- If your client is hit by media daily, give a few access or hold on or off the record briefings.
- If you promise the press something, deliver or the press will never forget.
- Try to avoid “no comment.” Think of a way to comment without commenting.
Andrew Blum is a PR consultant and media trainer and principal of AJB Communications. He has directed PR for professional services and financial services firms, NGOs, agencies and other clients. As a PR executive, and formerly as a journalist, he has been involved on both sides of the media aisle in some of the most media intensive crises of the past 25 years. Contact him at firstname.lastname@example.org or follow him on Twitter: @ajbcomms