August 25, 2016
Four communications fundamentals for high-stakes litigation
Through more than three decades of advising CEOs and Fortune 500 companies on high-stakes litigation (including adversarial administrative proceedings and arbitrations), we have learned all too well that the court of public opinion can mete out judgments as harsh as those rendered by a court of law – sometimes much tougher.
Today, with instantaneous global communication, social media’s rush-to-judgement mentality and society’s demand for public “transparency,” that lesson is more important than ever. Further, because the news cycle moves much faster than the court process, negative public perceptions have the potential to influence the outcomes of cases. That is why communications professionals and attorneys should be working together – and increasingly are – to protect their clients’ reputation and advance their legal objectives as litigation proceeds, as well as when decisions or settlements are reached.
In that collaborative relationship, the basic function of communications is to tell a client’s “story” to its constituencies as effectively as possible in support of the legal strategy and for the longer-term benefit to the client’s business and reputation. Optimally, that story will be told both before the adversary can convey their own and before they can “spin” their version of the client’s.
As obvious as all this sounds, effective communications requires a fine balancing of many variables, including what may affect the perceptions of regulators, judges and juries, and what is acceptable to the client’s lawyers, who may take a very conservative approach to engaging with the media and other audiences outside the legal process.
Lawyers as well as communications professionals must also take into account the reality that attorneys on the other side as well as government prosecutors are increasingly likely to be aggressive, skillful users of public relations. In our experience, attorneys and communications people can, more often than not, amicably resolve whatever their most important differences of perspective on communications may be, and cooperate in fostering an approach that serves the client well.
From the dozens of litigation situations we have handled, we believe there are fundamental guidelines not only for communications professionals but also the lawyers with whom they are working to bear in mind whether together they are going to deliver the best outcomes for a client. Four of the most important fundamentals include:
1. Develop and Adhere to a Communications Strategy
In concert with the attorneys, define your objectives and articulate messages that can be used with reporters “on the record” or off, or “on background.” Identify your specific target audiences, external and internal, particularly the top influencers among them. Lay out the tactics to be used with each constituency and identify third-party supporters to mobilize for the client’s cause. Engage in extensive scenario planning, doing your best to anticipate the full range of problems that could arise, including the adversary’s legal arguments and tactics, as well as hostile third parties that the opposition could rally to its side.
One or two attorneys leading the case should also be designated for the role of expert spokespersons, empowered to talk as often as feasible with reporters confidentially and otherwise, to ensure key messages are being conveyed from credible sources, and that reporters come to rely on those attorneys for information and perspective.
The strategy will have to be flexible and evolve, but you need a framework that allows everyone on the combined legal and communications team to understand what is expected of him or her and avoid crossed wires and missed opportunities. Basically, don’t “wing it.” We have been brought into many cases where that had been the modus operandi.
2. Know Your Constituencies
Constituencies, of course, go way beyond the actors in the legal case itself, and encompass shareholders, customers, regulators, employees, et al. Communications professionals by training and function have a special responsibility to keep the attorneys and the client aware of the full range of audiences affected, or potentially affected, by litigation as well as what specifically the risks with each group are. This includes identifying hidden risk – maybe the constituency that no one had ever dreamed would pose a threat or had any reason to do so. For example, one of our clients fell into an existential crisis largely because the company failed to see how an enemy might be able to mobilize minority-community leaders against them. It was a blind spot but probably not a totally excusable one.
“Know your constituency” has other important implications as well, one being the importance of establishing systematic, reliable and fast lines of feedback from every significant constituency, so that emerging issues can be identified and addressed quickly. Few companies actually do this in any disciplined way.
Another mistake companies and their attorneys often make is that they concentrate on telling their various audiences only what they want them to hear, as opposed to what reflects the constituents’ interests, and what might have the best chance of affecting their attitudes and behavior. Essentially, we see one-way conversations, with not much actual listening, which does little to enhance understanding of a company’s audiences. The emerging science of communication, especially what is based in neuroscience and behavioral economics, offers unique, proven benefits for true understanding, beyond the usual survey and focus-group methods.
3. Keep an Offensive Mindset
In litigation more than any other communications situation, caution is essential, and often a very conservative, “no comment” discipline is unquestionably the right option. But that is not the general rule and even when it is necessary, it must not breed a passive mentality. The communications people, with counsel’s support and guidance, have to be constantly prepared to go on the offensive to get the client’s point of view in front of critical audiences first. Other times, offensive thinking will be critical to an effective counterattack on some initiative from the opposition, in an effort to correct an error in press coverage, or to manage emerging discontent within an important audience.
Necessary preemptive action might mean, for example, seeking out and briefing reporters before a key courtroom hearing, emphasizing the strengths of the client’s case and the difficulties of the opponent’s. It also could include identifying a group whose interests are vulnerable to the legal machinations of the adversary and encouraging them to take an active public or legal role against that party. It sometimes extends to the collaboration of attorneys and communications people to write a brief that is at least as much a cogent narrative of the client’s case – primarily for reporters – as a strong legal document.
An offensive mindset further means being prepared to put out the first statement characterizing a judge’s ruling, or at least being able to counter instantly the other side’s interpretation. It means developing a sophisticated “leak strategy” – both to respond quickly to leaks from the other side as well as on occasion to proactively get selected information into the press “from informed sources” first. And more than once, intense monitoring of press coverage has prevented serious damage to clients by enabling us to spot reporters’ egregious mistakes, intervene right away and prevent their metastasizing.
4. Integrate and Coordinate
Fast, efficient action is critical to the effective management of the legal-communications partnership in high-stakes litigation. Companies in crisis that cannot make or implement decisions quickly suffer much more than is necessary, with devastating consequences for their own people as well as other constituencies. We have seen this with former clients, well-known in the technology, media, transportation and financial realms.
A proven way of mitigating such problems is to establish a small litigation communications working group with one or two senior individuals from each discipline, a top executive of the client organization who has much decision-making latitude and one or two senior representatives from other key functions. This team should have well-honed procedures for monitoring new developments, convening quickly and taking action.
It is also optimal in high-profile, high-stakes situations to have an “operations room” to which information on new developments flows and where subordinates representing legal and communications are responsible for monitoring audiences and keeping the small senior team informed.
Most importantly, a cohesive working group, supported by the operations room, helps to ensure that the lawyers and communications professionals know what each team is doing and how best to coordinate their actions to the maximum benefit of the client.
This article first appeared in Law360.