Insights into litigation, sports law, media and legal culture

Oil and water can mix: 8 hints to help lawyers help clients with media strategy

Years ago, I was representing a high net worth person in a pitched legal battle that had found its way to the doorstep of Australia’s highest court. Literally. Because there I was, standing on the doorstep of the High Court, when my client thrust a pile of media releases in my hand and said: “Hand them out”. I refused.

After the court hearing, as the legal team piled into the lift, the same client said to me: “Not you”. The lift doors closed in my face, and that was the end of my retainer.

Missing from this story is the person who could have made everything better: the public relations expert.

Not all litigation generates media interest, but some does. Being ready to handle it, and even to control it, is part of the overall litigation strategy. The question is whether the lawyer should be a front line player or not.

A barrister might do the right thing for himself or herself by representing the client in court before exiting via a side entrance to avoid media attention. However, if that means a stressed out client is left vulnerable in front of hungry cameras, is this enough?

A wise journalist challenged a gathering of barristers recently with this scenario. He asked them to reflect on whether their ethical obligation to run a million miles from the media sat easily with their duty to help naïve clients and their families, particularly when trying to navigate the treacherous waters of a slathering media pack.

It was a fascinating discussion and a great evening, and will no doubt lead to further debate from both sides of the fence about where lawyers should draw the line when advocating their clients’ interests.

If you would like to know who the wise journalist is, see here for a photograph of him circa 1994.

The concept of independence lies at the heart of the ethical debate about how closely lawyers should become involved in the PR game. In court, everyone knows the barrister is independent.   True it is, our adversary system demands a partisan approach to help the court arrive at a just result. Yet the barrister is doing battle for the client as part of the machinery of our judicial system.

Behind closed doors, the relationship between client and lawyer can look very different from partisan advocacy in court. Lawyers give their clients fearless, objective and, sometimes, unwelcome advice about the client’s purpose, strategy and likely outcomes. Given that the task of a lawyer is to help solve clients’ problems, this advice can stray beyond the strictly legal from time to time.

However, for a lawyer to hand out a media release for the client outside court, or to spruik their client’s case to waiting cameras, can be ethically troubling because the lawyer risks crossing a line from being objective and independent within the adversarial system, to a partisan player in the unfolding media drama.

I never had the chance to explain this personal perspective to my unhappy, former client. But I doubt it would have helped.

Of course, these are choppy waters to navigate and there are always exceptions. Human rights issues often require public champions, to help those who lack the power to use their own voice. The brave actions of Australian lawyers who sought to do their best for Andrew Chan and Myuran Sukamaran prior to their 2015 execution in Indonesia for drug smuggling is a case in point.

In my view, lawyers should not shrink from helping their clients with media strategy. We know how much reputation matters. Why win the court battle if you lose the public relations war? The issue is how best to go about it.

Turning to the important role played by public relations experts, ultimately, I have found the best media strategy for litigation is a holistic one where lawyer, client and PR expert together come up with the best media strategy without breaching ethics, common sense or the law.

Of course, sophisticated clients will already have a PR plan in mind, and often in-house corporate communications help.   However, there is a big difference between the planning required to negotiate media interest in worse than expected annual profit results, and that required to deal with the constantly moving feast of litigation.

With the above context in mind, let us consider some practical hints.

#Hint 1 –Know exactly why you are doing PR about a court case

Here are some reasons why people develop a proactive media strategy. Some of them are better than others, but in the spirit of ‘different strokes for different folks’, I will leave the judgment calls up to you.

  1. You are a publicly listed company and have disclosure obligations to your local Stock Exchange.
  2. You have obligations to share holders so that you must make your position about the litigation known so they maintain trust in you and continue to invest.

On about 16 February 2009 as SP AusNet inquired into the status of a reported class action against it, the company’s share price reportedly fell by 13%. A class action was then instituted against it arising from the Victorian 2009 Black Saturday bushfires in Kilmore during which 119 lives were lost and 1242 properties were destroyed. SP AusNet owed duties to its shareholders and adopted a proactive PR strategy to deal with the allegations, which eventually led to a record settlement after a period of lengthy litigation.

  1. There is misinformation in the public domain you want to correct, or there is a risk this might happen.
  2. Serious allegations have been made against you likely to be reported, and you want to mitigate the reputational harm you will likely suffer in the court of public opinion.

Consider also Alan Dershowitz, the Harvard law professor caught up in the fallout of the Jeffrey Epstein scandal. ‘Jane Doe Number 3’ alleged that Mr Dershowitz had sex with her when under-age, reported in further detail by The Guardian here. Mr Dershowitz has countered with an aggressive legal and PR strategy designed to mitigate any risk to his reputation.

  1. You know the other side do not want media interest about the matter, so you think generating media interest, or giving your opponents a taste of it, could help resolve the litigation.

For parties and lawyers in Australia, it is important to exercise care around this strategy, because there are now various civil procedure laws in the State and Federal jurisdiction requiring you to concentrate on the legal result you want to achieve, with legal sanctions if you deviate from this path. Having said this, point 5 is often how opponents behave. Therefore, even if you appropriately decide that this strategy is not very classy and also potentially unlawful, consider combatting your opponent’s media strategy via those very same civil procedure laws referred to above (e.g. applying to the Court for costs to compensate for time spent dealing with matters unrelated to the just efficient resolution of the dispute).

Hint #2 – Create your PR plan before you need to use it

Q: When is the worst time to make decisions about PR?

A: When in the middle of litigation.

Stress increases the risk of making bad decisions. There are not many experiences more stressful than litigation. That is why a PR plan should be crafted when everyone is in a calm frame of mind, rather than when ‘on the run’.

As a Cesar Millan disciple (think of the television show, Dog Whisperer) just remember: To be a pack leader you need to have a calm and assertive state of mind. And no, I am not talking about dogs here.

Here is Cesar Millan looking very much like the pack leader:

Here are some things you will need to decide:

  1. Why should we do media? [See #Hint 1]
  2. Who will do the talking? [As I have indicated above, the spokesperson should not be the lawyer.]
  3. When will we engage with the media? [Now? In response to the other side? In response to a media request? Only after judgment?]
  4. What are the risks of talking to the media? [Settlement might be prejudiced, the judge might be put off, and so on]
  5. What are the opportunities and are they worth the risks?
  6. What will our opponent(s) think and what response can we expect?
  7. Should we have a proactive media strategy or a responsive one?
  8. What are we going to say? [See Hint #3]

The next step is to develop the tools you want to use. It is very important to have available if needed (amongst other things):

  • A media release
  • Frequently Asked Questions
  • Briefing information to background the journalist (within the limits of what a court would consider appropriate)

The Court is your number one stakeholder when crafting media messages. To that end, in Australia at least, keep it conservative. Restrict what you say to matters stated in open court or which are public documents such as the Statement of Claim and Defence (check which court you are in to ensure these documents are public as the position differs between jurisdictions).

Prepare alternative media releases (anticipating a win or a loss) well in advance of judgment. Once the outcome is known, it is then straightforward to adapt the pre-existing draft to any unanticipated factors, and it is ready to go.

In other words, on the question of ‘what do I say?’ have options for media comment because you will often have to adapt to what happens in Court.

Transcript: There are strict copyright laws governing use of transcript. Parties have to pay for it, and most transcript companies claim copyright in it along with strict requirements around how it can be used. Therefore, parties to litigation should be very careful not to tread on toes by distributing transcript to the media or other third parties without considering these issues.

Affidavits: Avoid distributing affidavits before cross-examination has taken place. You could prejudice your case because it is not a good look, and the evidence has not yet been tested.

Your opponent’s documents: Avoid distributing documents provided by your opponents because, simply put, they won’t like it. This could lead to *bad things* happening.

Note: What bad things may mean really will depend from case to case. One bad thing is: They could distribute your documents to the media.

Hint #3 – ‘No comment’ is not a PR strategy

If the matter is interesting to the media, even if you do not want it to be, journalists will want to talk to your client.

Telling journalists to “talk to the hand” is not an effective option. The interest will not simply go away if you ignore it. It just means you have lost any ability to control the message.

If you want to take a low-key approach to media interest, adopt a ‘responsive’ media strategy. This means you will only say something if asked about it.

There are lots of nice ways to saying nothing much at all. For example: “we await the judgment with interest”, “we are leaving it in the hands of the judge to decide”, “we will consider the judgment then decide whether or not to appeal”, and so on.

Be polite and engaging with journalists. And be transparent about the limits of what can be said and done. Journalists understand this.

At the very least, journalists often want help spelling the names of relevant parties, including the barristers who have represented your client in court.

It is always good to mitigate the risk that media outlets will not provide a fair and accurate report of the proceeding. This can involve providing ‘off the record’ background to a journalist. Journalists usually appreciate the help.

Therefore, even if the client decides (with the benefit of your sage advice) to avoid substantive comment because the time is not right, a suitable response to any request for comment could be:

I’m sorry but my client is not prepared to comment at this stage. However, I’m instructed that, if it would help, I can provide some factual background about the case and the questions the court needs to decide, on an off the record basis.”

Trust is important here, so ensure you feel comfortable about the journalist and the occasion before you go down this path.

Hint #4 – ‘Tit for tat’ is not a PR strategy either

Litigating parties do not like each other very much. We all get that.

A proactive media strategy does not mean you should give in to the irresistible impulse to correct everything your opponent has told a journalist, and to express publicly your outrage and disappointment at the appalling things reported in yesterday’s news.

Because if your opponent has the same tendency to reciprocate, the following is inevitable:

  • Your key media messages (which should be simple and intended to protect your reputation) will be lost
  • You will not look like the good guy – ‘Tit for tat’ means people will not know who to believe
  • The story will keep going

Accordingly, when you are in a ‘calm and assertive state’ and in planning phase, then is the time to anticipate how best to deal with the outrageous slurs likely to be made against you.

One option is to ignore them (essentially a responsive strategy). Then, rather than no comment, you might say: “Yes, we are ignoring these remarks. In our view, it is best to let the court decide”.

Ignoring people can look elegant.

Hint #5 – Be innovative

I always look to the United States for PR innovation.

If you follow my lead, do so with an open mind but also cultural sensitivity. What is acceptable for the United States’ legal system may not be as tolerated in Australia.

In particular, Australia is a much more conservative environment for public relations initiatives.   Therefore if you like these ideas, I think your next thought bubble should be: Could any of these ideas work in Australia, and if so, how?

Case study 1 – Taco Bell

In 2011, a small law firm in Alabama sued Taco Bell on the basis that its ‘beef’ tacos contained only 36% true meat. It had an impressive PR strategy designed to disseminate the allegations –

  • press releases were issued;
  • consumer interest reporters across the country were briefed; and
  • influential bloggers were contacted.

Did Taco Bell adopt a ‘talk to the hand approach’ or responsive media strategy? Certainly not. This is what Taco Bell did:

  • It took out full-page advertisements saying “Thank you for suing us” in newspapers such as The New York Times, The Wall Street Journal, USA Today, thereby rebutting the allegations in an amusing and engaging way;
  • It turned to social media to engage with consumers about the ‘not so secret recipe’ (see here for YouTube clip from Taco Bell President and CCO, Greg Creed).
  • Considered a great PR success, the Twitter account @TacoBell, led to the company tweeting “Thank You” daily and actively engaging in conversations with its more than 123,000 followers.
  • Perhaps most effective was Taco Bell’s interesting promotions devised to counter the claims of the case. It launched an offer of 88-cent Crunchwrap Supremes to embrace the “88% premium beef” in its recipe, announced the “World’s Largest Taco Giveaway,” giving 10 million free tacos (beef, of course) to Facebook fans, and gave 600 free tee-shirts to Facebook fans who filled out a feedback form.
  • Today, Taco Bell boasts more than 6 million Facebook fans.

Following a crescendo of favorable press for Taco Bell, the law firm relented, acknowledging Taco Bell’s tactics made them aware that their claims had no merit.

As a knock out blow, Taco Bell bought another series of ads which simply and elegantly asked the law firm: “Would it kill you to say you’re sorry?” For an indepth look at the Taco Bell PR offensive, see here.

Note that Taco Bell has a cheeky and comedic brand presence generally, which might have helped this PR strategy. Consider whether it’s PR approach could translate to a more ‘serious’ brand. For some cheeky Tweets from Taco Bell, see below:

Case Study 2 – Brigadier General Sinclair

In late 2012, Brigadier General Jeffrey Sinclair, a highly decorated combat veteran and deputy commander of the 82nd Airborne Division, was charged with sexual assault. Initial media coverage was toxic; he was tried and convicted in the court of public opinion before the case even went to a military tribunal.

According to the firm which looked after the PR strategy, General Sinclair made a number of bad personal decisions based on the evidence, but he didn’t assault anyone.

If convicted, the general faced life in prison. His accuser was granted immunity from adultery charges.

The PR firm described its mandate as to level the playing field before trial, and its strategy to impose transparency on normally secretive military proceedings. It described its greatest challenge as being mindful of the need to explain why the main charges were non-credible without creating an environment that dissuaded sexual assault victims from coming forward and reporting. They claimed to do this by keeping the spotlight on the Army, rather than on the accuser.

The PR firm reportedly went about its task as follows:

  • The general’s supporters created a website setting out the story behind the charges and inviting readers to read dozens of pages of documentary evidence.

Consider the impact of waiving privilege, and potentially of arming your opponents for cross-examination, by doing something like this. This is why it can be crucial to have lawyers advise on the legal risks of such an aggressive strategy. Here, the PR firm said: “The immediate objectives of the lawyers (get the worst charges dropped) and the PR professionals (correct misinformation) dovetailed perfectly. We agreed that that transparency would trump secrecy.”

  • Within just five days of going live, the site attracted 11,000 unique visitors and 47,000 page views.
  • The novelty of this approach also garnered national coverage. In turn, journalists apparently contributed balanced and nuanced reporting.
  • In the weeks before trial, the legal and communications teams worked with the New York Times to develop what it described as a series of dramatic, game-changing stories revealing that the lead prosecutor had resigned over concerns that the accuser lied to him and committed perjury at a pre-trial hearing.

In Australia, consider the legal risks before adopting such a direct media strategy, including possible contempt issues if there is a jury.

Interestingly, the PR firm noted that whilst the Army remained opaque, they were fully forthcoming with information. Journalists apparently appreciated their transparency and covered the trial ‘fairly’ (likely meaning, in their favour!).

Eventually, it is reported that the government dropped the assault charges against General Sinclair and allowed him to plead to a series of lesser offences.

Hint #6 – Corporate defendants will not win the PR court battle so do not try

SP AusNet, no matter the merits of its defence, was never going to win the PR battle of the Kilmore class action.

Consider the Maurice Blackburn press release:

After the state’s deadliest and most devastating bushfire took 119 lives and destroyed 1242 homes, after a Royal Commission and after Australia’s longest ever class action, the survivors of the 2009 Kilmore East – Kinglake Black Saturday bushfire have received a measure of justice today.

Maurice Blackburn’s national head of class actions, Principal Andrew Watson, said … “No amount of money will replace what the fire took from those who had so much taken from them, but if approved, today’s settlement will provide significant compensation for their losses and some long overdue justice for people who have suffered great adversity”. [emphasis added]

Note the careful and specific use of “justice”, a term connoting moral righteousness. Yet, there was no finding to suggest that the claimants were morally right. The settlement was on a no admissions basis.

The public sentiment is not, however, interested in grammar. People no doubt felt satisfied and pleased that the victims of this terrible tragedy were to receive some financial compensation.

It follows that if standing in shoes of the defendant there is only one option and that is to be as gracious about the terrible circumstances as possible. To adopt an objective tone at all times is often the best approach.

To that end, for a Fact Sheet released by SP AusNet to the ASX on 4 March 2013 to say: “The purpose of this outline is to ensure that the market is fully informed by balanced comment on these issues”, indicates a level of frustration which was possibly best kept behind closed doors.

So too, on 15 July 2014, in its ASX media announcement about the settlement of the litigation, SP AusNet stated: “Although SP AusNet believes that it was more likely to succeed than fail in the litigation, [it] was contested and the subject of a trial which sat for more than 200 days. SP AusNet accepts that almost all litigation involves some uncertainty, particularly litigation of the scale and complexity of the Kilmore East Bushfire Class Action. Accordingly, after due deliberations, SP AusNet and other parties involved in the litigation have agreed to a settlement sum of approximately $494.7m…” [emphasis added]

The need for such positioning language, given the circumstances, is certainly understandable for an internal Board report.  A nuanced discussion about why SP AusNet defended and then settled, might also be suitable for oral discussion during investor presentations.  Otherwise, such language might be better omitted from an otherwise objective media statement.

That said, a good example of gracious conduct can be found at the end of that same media announcement: “SP AusNet respectfully wishes to acknowledge the outstanding management of the case, including the provision of facilities and support, by the Supreme Court of Victoria.”

Hint #7 – Delete “vigorously defend” or “strenuously defend” from your PR lexicon (unless you have good reason not to)

First, “to vigorously defend” is a tautology (and for pedantic wordsmiths, a split infinitive too). If you defend a matter, you are fighting to keep your position safe. Yet for years lawyers have added “vigorously” or “strenuously” to legal correspondence almost as an automatic reflex.

Secondly, the term “vigorously defend” is at risk of breaking the golden rule of an objective message by turning it into a subjective one. The term implies indignation, as if the plaintiff was completely mistaken to bring a claim in the first place.

To the extent rules are made to be broken, sometimes a subjective message might be entirely appropriate given the nature of the allegation. In the case of the former head of the International Monetary Fund, Dominique Strauss-Kahn, his lawyers issued a wonderful media statement not only ‘vigorously denying’ the allegations that he tried to have sex with a maid against her will, but added that they were based on “fantasist and erroneous information” (see here).

Here is Mr Strauss-Kahn enjoying better days since he settled that case:

The other problem with ‘vigorously denying’ something is that one can stray into ‘boy who cried wolf’ territory if a litigant changes its mind (which happens a lot because litigation constantly shifts strategy).

For example, in light of all that had gone before in the Kilmore Class Action, what was the public to make of the concluding remarks in SP AusNet’s media announcement when it stated:

“SP AusNet remains a party to the Murrindindi class action proceeding and will vigorously defend that claim.” [emphasis added]

Perhaps it will not surprise that on 6 February 2015, settlement of the Murrindindi class action proceeding was announced.

Hint #8 – The most important stakeholder: the Court

Public relations strategy in litigation is not ‘situation normal’. There are different considerations and often very high stakes.

True it is, communications issues are always challenging. There are the half yearly and annual results, the Annual General Meeting and the acquisition or divestiture of a business. There might also reputational issues due to internal politics, corruption issues or a scandal engulfing a key executive team member. However, all of these issues differ from litigation in a key material respect: In litigation there is a judge watching your every move.

The judge will evaluate the conduct of the party up to and including trial. Avoid making any public statement capable of causing the judge’s eyebrow to be raised.

Where a jury is involved, even more caution is required because contempt of court consequences can follow.

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