OJ Simpson, Casey Anthony, Johnny Depp, Alex Murdaugh – chances are, you remember where you were during at least one of these high-profile trials. They not only captured public fascination, but cases like these have profoundly influenced the power of media scrutiny and its impact on litigators, juries, and perceptions of justice.
As litigators defending businesses – not necessarily celebrities or murder suspects – your idea of the spotlight doesn’t involve TV cameras. You probably wouldn’t imagine arguing a case in a courtroom packed with reporters. However, conflict creates interest, and drama is ripe within the pages of court filings, even those involving companies facing routine disputes. As a result, the media often takes an active interest, and today’s litigators should understand the dynamics of media relations as essential to managing public perception and ensuring fair trial outcomes.
Whether you are an in-house lawyer or outside counsel coming alongside company leaders and legal departments in high-profile litigation, here are some questions you should ask yourself.
Why Would the Media Care About My Case?
Regardless of the type of case before you, whether the media takes interest is beyond your control. Before your case is filed, evaluate the situation for media interest. Generally, media stories check the boxes on a few attributes:
- Human interest – cases involving well-known figures or relatable personal stories.
- Conflict – legal battles that are contentious and dramatic.
- Consequence – trials with significant societal impact or high stakes.
- Novelty – unusual or unprecedented cases that draw curiosity.
- Fame – big names or big brands.
Your case may be garden-variety litigation, but if it’s on behalf of a big brand whose every move makes news, you must consider media relations as part of your legal strategy. Similarly, if your matter will create a precedent or change the law, anticipate extra eyes on your work.
How Do I Ensure Alignment with Legal Strategy?
All too often, well-meaning communications teams approach a company’s PR challenge by quickly attempting to address any crisis of the moment. But your job as legal counsel is to play the long game, focusing on legal strategy and ultimate outcomes.
Legal and communications must work together, bringing their collective talents to bear for the company’s best interest.
In theory, this sounds collaborative and easy. But all too often, communication responses don’t consider legal implications, and legal strategies miss the mark when they focus only on “right” or “wrong” and forgo public perception.
Ultimately, the attorney’s responsibility is to command and control the narratives – both legal and reputational.
As legal counsel, take the lead and call the two teams together. Devise a communications plan that considers all relevant audiences and facilitates collaboration and information sharing between two critical groups. This plan will ultimately shape the legal outcome and the company’s image.
Who Can I Trust to Manage Communications Responsibilities?
As legal counsel, while you would love to be all things to all people during litigation, the reality is that, especially in a 24/7 news cycle, you can’t personally respond to every media inquiry. As a result, you’ll default to not responding, which can be more problematic.
It’s important to work closely with a communications team to agree on approved media statements or messaging that can be shared quickly when a reporter is on deadline. Be clear about who can disseminate those messages and under what situations so that you feel comfortable with communications being aligned with legal strategy.
(Hint: It’s some reporters’ tactic not to give Big Companies much time to comment. Be prepared with pre-approved statements that the PR team can deploy quickly to avoid the “could not be reached for comment” scenario that haunts many organizations during a crisis.)
Seasoned, trusted communications professionals can also help with media training, identify critical journalists and media outlets of importance, provide background information on previous interactions with the media, respond promptly to media inquiries, and monitor for misinformation and rumors. All of these eaorts ultimately bolster the legal strategy.
These professionals will also be experts at knowing the relevant media outlets. They’ll know which journalists can be trusted with background information and which reporters already have a bee in their bonnet for the brand. Local media outlets can be tricky. They run the gamut from sophisticated publications owned by large conglomerates to citizen-backed community blogs that take on protecting their towns at all costs. It’s essential to have a PR pro on your side who understands these nuances.
A side note: If you are outside counsel working with a large corporation, your general counsel client might actually oversee the communications team daily. More and more legal departments are taking responsibility for company communications, underscoring the integration of these two disciplines. Understanding the internal dynamics and organizational chart of how legal influences communications outside of high-profile litigation is critical.
But How Do We Navigate Confidentiality and Attorney-Client Privilege?
Legal counsel and PR professionals must be equally aware of how their work product may or may not be protected by attorney-client privilege. In most cases, the presence of a third party – a CMO or communications director, for example – in a meeting or copied on emails would break attorney client privilege. After all, that CMO or communications director is neither the attorney nor the client.
As such, it may ultimately be necessary for you to enlist your own communications counsel, seasoned in litigation communications, separate from your client’s employees. These professionals should understand legal restrictions on communication, adhere to professional conduct standards, balance transparency with ethical duties, and have experience navigating ethical dilemmas in high-pressure situations. Ultimately, they must be sincere about maintaining integrity and trust.
Best practices that lawyers and PR professionals can use to collaborate within the bounds of confidentiality and privilege eaectively include:
- The PR professional or firm should be hired directly by the attorney, and invoices should be sent to the lawyer, even if the client ultimately pays the bill.
- The engagement should be described as legal in nature, underscoring the PR work’s integral role in the legal strategy.
- The attorney should be the conduit for any communications. A valued PR person will help the attorney by writing emails they can copy and send, but the lawyer should be in the driver’s seat.
- All communications must clearly be marked as “confidential and privileged” and deliverables as “work product at the direction of counsel.”
- If the PR firm also does routine work for the company, it must keep the litigation communications separate from its regular activities.
How Can I Control the Narrative?
If a media strategy or commenting is oa-limits, your filings can be written with media interest in mind. Well-written briefs and responses designed with a reporter’s point of view (read: simple, concise, and not full of legalese) can send the right message when you can’t comment. Instead of not responding to reporters or saying, “No comment,” you can point journalists to your publicly available filings as the company’s response in cases where media interviews are the wrong strategy.
However, let’s be honest for a moment. Depending on the type of litigation at hand, there may ultimately still be some bad media coverage. It’s essential to prepare your client for tough stories. It will be hard, but the news cycle will eventually turn, and the team can focus on recovery.
What Other Communications Needs Are There?
Perhaps more importantly, you may have internal and external communications challenges ahead. It is critical to serve as a leader who cares about your client’s ability to emerge from the crisis. Help other departments navigate how to communicate with employees, customers, shareholders, boards, and other stakeholders. Anticipate the questions anyone interested in the company may ask and develop empathetic responses while preserving legal strategy.
Communications in high-profile litigation can make or break even the best legal strategy. A game plan, the right team assembled, and a collaborative spirit will bolster a case’s legal and public reputation.
This article was originally prepared for DRI’s 2024 Appellate Advocacy Seminar.
