New York Law Journal – The New Sector of Litigation Communications: The Fast-Developing Battleground

A new category of advisory has developed, to serve the needs of many of the world’s leading law firms, ensuring that when the dispute is over they are seen as the right winner, or the wronged loser.

It has rarely been as important for a lawyer to consider the wider context and environment within which litigation takes place than now, and to understand the importance of communication as part of this.

When I was growing up it was always said that what was in the newspaper today would be in the rubbish bin tomorrow. And it was true. Easily published, quickly forgotten.

And then came the Internet and the digital revolution. And its impact upon litigation has been as great as it was upon everything else, from disclosure and discovery through to the development of online justice. But the area that may be the one that represents the greatest critical vulnerability for businesses and individuals alike, is the way the digital age has raised the profile of litigation and has brought into play reputation—a sword and a shield for those involved in a dispute.

It is now generally recognized that a business’ or individual’s most important asset is its reputation. As Warren Buffet said, “We can afford to lose money—even a lot of money. But we can’t afford to lose reputation—even a shred of reputation”.

Since the dawn of the digital age, irrespective of how the legal issues unfolded, clients, and their advisors, have had to deal with the threats to reputation that digital communication has brought with the magnifying of negative coverage via the Internet.

Understandably the lawyers in a case are focused on winning the legal argument. However, the winning of a $100 million judgement is not now the only consideration. What if in winning that $100 million award something arises during the case that wipes $1 billion of the share price? It could be a careless comment by the CEO under cross examination or a production process revealed as environmentally unsound, leading to a client-losing social media campaign from activists. Or perhaps it is a damning comment by a judge which shatters investor confidence. Issues can gain relevance and a wide audience via the power of the Internet.

Digital communication has given birth to the vast universe of social media, the rise of the citizen journalist, the use of websites and attack sites, and unedited access to vast swathes of information—all of which are capable of inflicting rapid and severe damage. It demands a fresh approach to litigation. And what’s more, this proliferation of content is always there, and is easily found—Google page one.

Managing reputation in litigation is no longer an option, it is a must, and requires a new type of litigation team. Now any client who embarks upon litigation without a specialist litigation reputation adviser is increasing the likelihood of reputational damage. Especially when the other side know that threats to reputation can be every bit as effective a tool in trying to achieve a good outcome.

Litigation now demands a team that blends both legal and communications experience. Historically PR firms have dabbled in this area, communicating to the media what happens in court. That is just not enough and is why a new category of consultant has arisen. Consultants who understand litigation because they have been litigators, working with former journalists and media experts, alongside the lawyers, to create and provide a winning synergy of legal and communications expertise. These specialist advisers work to ensure that when the case is over, the client moves on from the strongest possible position.

What does this mean in practical terms? It means that as early as possible before issuing a claim, or defending one, the litigation is seen as something more than a legal matter. It’s a real threat to business.

The start point should be a full reputation risk analysis, a thorough media and online audit, and a comprehensive intelligence gathering exercise. This gives a clear picture of who is writing what, about whom, what online assets exist, what the social media footprint is like, who are likely to be people of interest both within and without the litigation, and so on. All this should be mapped on intelligence charts, which serve as guides to where potential risks and opportunities might arise, before planning and executing a communications strategy.

Powerful communications can only come from a thorough understanding of the legal complexities, leading to simple messaging that is delivered effectively. Effective delivery means the implementation of the legal and communications team’s strategy in the most compelling way possible. Have the advisors ensure the legal pleadings are media friendly, that the environment of the dispute has been put into context, and most importantly of all, that the client’s credibility with key stakeholders has been invested in before heading into battle.

When it comes to litigation and high-stake disputes, these are the requirements of today’s advisors—to be understanding of the legal nuances, to be understanding of the political context and to be able to create the correct media environment in which you can be confident of fighting the case with reputation fully protected.

This is what it takes to truly take control of the reputation risks inherent in every dispute, and to prevent a damaging depository of comment and record on the Internet.

A new category of advisory has developed, to serve the needs of many of the world’s leading law firms, ensuring that when the dispute is over they are seen as the right winner, or the wronged loser.

This article appeared in the New York Law Journal on the 3rd December 2018.

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