Though related, litigation PR differs from orthodox crisis PR because you deal with both the agenda of the media and that of your opponent. Its further challenge is that the media has a latitude in reporting court proceedings which is akin to that when reporting events at parliament. It is also different since if expertly done it can be used both as a shield and a weapon.
What is at stake?
For major corporations the PR stakes will often be higher than the sums of money which are the subject of the litigation; especially when a claimant is using the litigation as primarily a means of inflicting reputational damage on the defendant, or as a way putting pressure on the defendant to compromise the litigation rather than suffer brand damage.
What is litigation PR and what expertise do you need to conduct it?
It is leveraging litigation via the media both to achieve the maximum PR and tactical benefit, and mitigating to the fullest degree any adverse reputation damage. For this, you need a thorough knowledge and understanding of the legal process gained by participation in it; an understanding of the mindset of solicitors, barristers and judges to facilitate communication and exert influence; and extensive experience of dealing with the media.
A basic guide to civil litigation
The Civil Procedure Rules require that all civil litigation be preceded by correspondence between the parties in which the claimant sets out details of the claim, and the defendant sets out why the claim is rejected. Here are the key stages:
- The issue of the Claim Form, and the Statement of Case, which sets out in detail what the claimant wants from the action, and why it believes it is so entitled.
- Service of a defence and possible counter-claim.
- The claimant may then serve a “reply” to the defence (and a defence to the counter-claim if there is one).
- A case management conference, where a judge will set out how the case will progress to trial.
- “Disclosure” when both sides prepare lists of the documents that they hold which both support and undermine their cases.
- Statements are prepared for all witnesses to give evidence at a trial.
- Reports are prepared of evidence from experts.
- The trial where the witnesses are – subject to any restraints imposed by the judge – free to make defamatory allegations for which there is no legal recourse.
What is good litigation PR?
From the outset, every stage of the litigation should be assessed both as to its potential PR risk and benefit. Those risks/benefits should be communicated both to the client and the lawyers conducting the litigation, so due account can be taken and adjustments made.
Preparations should be made for any material which might emerge from the litigation (positive or negative). Hearings should be attended to ensure you are ahead of and ready to deal the media, which should politely be reminded of their regulatory and legal obligations in reporting the litigation. There should positive dialogue with the key journalists throughout.
A closing anecdote
Sometimes litigation and PR must be done simultaneously.
I acted for Heston Blumenthal whose Fat Duck had been afflicted by norovirus. We settled with all the affected customers except one; the veteran sports commentator Jim Rosenthal, who issued a county court claim for a refund in addition to the compensation that he had received.
Such small claims are usually dealt with in a meeting room, so to save Heston money I elected to do the advocacy. However, when I arrived at Oxford County Court I found a phalanx of reporters.
I then discovered our hearing had been moved into the main court room which was the size of a small theatre complete with a gallery full of the media. It was too late to call in a barrister, so I conducted the trial myself. The most important element in the court was not the judge, but the press gallery so it was primarily to them that I addressed my opening remarks.
As it was, I was able to persuade the judge that since Mr Rosenthal had already been paid the maximum sum which he could recover in any legal action his claim should be dismissed.
Written by Jonathan Coad, Coad Law
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