One of the consequences of Lord Woolf’s reforms of 1999 has been a dramatic rise in the use of litigation public relations as a strategic tool in civil cases that go to trial. Never before has there been so much media interest in disputes that are brought before the courts. The main reasons for this are simple enough – the availability of court documents and the fact that parties now generally go straight into cross examination, rather than evidence in chief, as was the case prior to Woolf.
This means that parties in a dispute are liable to be seen at their worst, through cross-examination, something that the media will eagerly report. Journalists may attend court, but frequently are too busy to get the true context of the evidence in the case being heard. They tend to dip in and out of the court, juggling many cases at a time, and so miss much of the scene setting evidence, often resulting in unintentionally skewed reporting.
This is not necessarily the fault of the journalist, who is likely to be both stretched and under resourced. Indeed, the legal representatives of the parties are often unwilling to assist reporters who are merely doing their job. A disdain of the fourth estate is still alive and well in the courts, with effects that are often to the disadvantage of the clients of the lawyers concerned. Having said that, lawyers are best at doing law, not media relations.
The availability of witness statements, once evidence has been given, and more recently changes in the rules governing the release of claim forms, provides the media with a steady flow of good material for publication. Journalists will actively apply for documents through the clerk of the court and often acquire skeleton arguments at the outset of the trial. In short, gone are the days when big-ticket and unusual cases would go relatively unreported.
It is because of this that the more enlightened law firms now tend to recommend their clients engage the use of litigation PR consultants. They understand that the ongoing effects of a media mauling can cause serious and enduring damage to their clients’ reputations, at a time when they are most vulnerable. In the past companies often avoided engaging with the media at a time of dispute, or would rely on their in-house PR capability, despite the fact that they would generally have no experience in how to manage litigation scenarios.
In other circumstances that might be fine, but the rules of media engagement radically change when a trial is underway. Most client in-house PR staff have very little understanding of the potential hazards that they face, or of the paramount need for contempt avoidance and an understanding of the legal status of information and documents that they see in the course of the dispute. This puts them, their organisation and their case in jeopardy as judges, rightly, get extremely upset if someone is caught ‘playing fast and loose’ with the rules. Contempt of court, of course, can attract a jail term for the transgressor.
Strategically, the use of litigation PR can have very positive effects. A client usually wants to defend their reputation or seeks to attack ‘the other side’, highlighting perceived weaknesses of their stance. The main benefit, however, is in bringing clarity regarding your case and in ensuring that the client’s position is fairly represented in any media coverage.
The litigation PR consultant will create a communications strategy that seamlessly dovetails with that of the legal team. This is important, to ensure that the team as a whole is ‘singing from the same hymn sheet’ and that there will be no nasty surprises in the newspapers as a result of media briefings, as a slip can adversely affect the case.
The early adoption of litigation PR – long before the case gets to court - can be a very useful scene-setting tool, used to provide context for interested outsiders and stakeholders. Equally, the aggressive use of pressure applied via the press can also help, particularly through the creation and implementation of settlement media strategies, designed to help bring parties ‘to the table’. All too often, behind the scenes activity between legal representatives will merely result in further deadlock between the parties, especially where certain types of clients are concerned. A creative communications strategy can produce a media atmosphere that is conducive to a deal being done that is beneficial to the client, one which of course allows both sides to claim ‘honours even’.
If however, the case does proceed to trial, the work of the litigation PR consultant assumes greater importance. It is their job to maintain a close working relationship with the journalists covering the case, both those attending court and others following developments from afar. Here the litigation PR consultant can employ a range of tools to assist the client in getting their message across. The most obvious and frequently the most powerful is the use of witness statement evidence, once the witness is sworn in.
Once the oath is given, witness statements become public documents which can be obtained via the clerk of the court. As they are sworn evidence they assume privileged status and journalists can report their content as if they had been in court to hear the account themselves. Journalists are usual short of time, while still needing information, and so the litigation PR consultant can flag up relevant sections of the witness statements in support of their client while also ensuring accuracy of reporting in the case. More to the point, the witness statement usually includes information that is not given in oral evidence.
In a trial the litigation PR consultant becomes invaluable to the journalists assigned to the case as first point of contact for enquiries and information going forward. It is his job to ensure that the journalists have the information that they need in order to put the client position across.
At the end of the trial, win or lose, it is the job of the litigation PR consultant to position the outcome in as good a light as possible and then ‘turn off the oxygen of publicity’ so as return the client to their normal existence out of the media spotlight, something more easily achieved with a litigation PR on board.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
