King Pyrrhus of Epirus famously said: “If we are victorious in one more battle with the Romans, we shall be utterly ruined.” He was talking in 279 BC about the large number of soldiers he had lost in the battle of Asculum, but today he could just as easily have been referring to the high cost of litigation, or the pitfalls of winning the legal battle inside the courtroom at the expense of losing the communications war outside it.
Go for win-win
Your client’s reputation may be more valuable than the matter you are litigating over, or at least the other side’s reputation may be. So winning in the court of public opinion is just as important, and sometimes even more so, than winning in the courtroom. But the courtroom and the outside world are connected for two important reasons. First, because justice should not only be done, but must be seen to be done; and second, because judges and jurors, no matter how impartial, urbane they may be, do not in reality sit in a vacuum, but are influenced by popular culture, whether they like it or not.
In other words, there are two conversations going on: one inside the courtroom to persuade the judge, and the other outside the courtroom to persuade the public. But the reality is that these two conversations are linked. Not only to the extent that they make the same arguments in different ways, but also because one cannot help but inform the other.
PR and legal strategies
This means that you need to develop your PR strategy alongside your legal strategy, from the outset. In the most extreme circumstances, your PR strategy might dictate that you should not litigate, no matter how good your case, because of the balance between the possible legal gain and the certain reputational risks involved for your client. At the other end of the scale, your PR strategy might dictate that you bring a particular case, in a particular jurisdiction, which you might not otherwise have brought, because of how that case will play in your overall strategy, and how that will set up both the legal and public narrative for other current and future cases. Or there will be times when you consider a legal case to be too weak, complex, costly, slow or unrewarding for your client, but where the reputational concerns of the other side mean that a carefully orchestrated settlement PR campaign, threatening to litigate, can bring the other side to make a settlement offer to your client. And when it comes to Group Actions, it is often not possible to bring or manage the legal claim at all without a strong litigation PR campaign recruiting and keeping informed the corporates or consumers involved.
An issue of trust
This asymmetric approach to litigation and PR is particularly key in complex, cross-border international commercial litigation, but its deployment in any case can often mean the difference between success and failure for your client, both inside and outside the courtroom.
With the high stakes of litigation, it is vital that a bond of trust is developed between the legal team and the litigation PR team. Often pure legal advice is at odds with pure PR advice, so in order to optimise the outcome for clients, litigators increasingly need a good feel for the balance between the priorities of the law and reputation management, just as specialist litigation PR experts must understand the legal reporting restrictions, the fine details of the case, and the client’s wider objectives. The client, legal and PR teams need to work very closely with each other, both at the planning and execution stages. Thorough planning and preparation is key, including preparing quote books in advance, as your plan will sometimes need to be executed in the heat of battle, where speed and precision are vital in order to take and keep control of the narrative.
Only by PR and legal working hand in hand will you win both the legal battle and the reputation war. And the reality is that winning the reputation war will help you win the legal battle.
Written by Tim Maltin, CEO of agency Maltin PR
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