The communications environment for litigators, corporate counsel, and corporate communicators has changed radically due to the rise of digital media, heightening pressure on lawyers to win in court and for their clients to make a positive impression in the court of public opinion.
While digital presents challenges similar to those in traditional media – what to say, when to say it and how – the uniquely explosive virality that can come of engaging online can inspire greater anxiety for legal counsel. Will your client say something in over-eagerness to engage online that will be counterproductive in court? Will an off-key post go negatively viral, coloring the litigation environment? Would an online campaign draw the ire of the court? While those concerns must be respected, the smart strategic use of search, social and website content is now an essential part of any communications toolbox.
Counsel and communications professionals need to know who should, or even when to, issue statements online, whether to respond to posts and comments, and how much content is too much content. With that knowledge, digital can be used to better understand public sentiment, to deploy accurate information while countering rumor and speculation, or simply to move the online conversation to other, more positive aspects of the business storyline. It can also be used to provide real time feedback on key stakeholder sentiments and to place carefully vetted legal messages.
Here are some key concepts to keep in mind.
- Design Your Strategy to Support the Compelling Business Need. Is the key challenge to keep stakeholders focused on other business strategies besides the litigation? Or is it to win understanding for the company’s posture on the litigation itself? In either case, digital can help. First, digital can create an overarching halo under which litigation can be pursued more fairly, with facts presented absent the filter of reporters’ biases. Second, digital can lay the groundwork for trial or settlement negotiations by taking a disciplined, targeted affirmation of the core legal position directly to key stakeholders. Third, the use of digital can enable counterpunching when legal issues are actively contested by the other side in the traditional news media. By no means do we advocate for “trying a case publicly” and none of these digital tactics should be pursued without determining how a court will react to active communication, whether it’s digital, traditional or a mix thereof. Nor is this at odds with a decision to try to keep the litigation offline and low profile if that is what both the business and the litigation strategies dictate.
- Lead with Your Facts, Counter with Your Facts. Using digital media makes it easier for litigants to establish a factual baseline to share with the public in the same way a traditional public statement would. Instead of the statement living solely in the hands of mainstream media outlets, it can be targeted to key stakeholders and posted to client-owned channels, like social media accounts and corporate websites. As always, the information shared in these ways should be grounded in facts that would stand the “test of trial” and help best position future litigation efforts.
- Even if You Don’t Know How to Use the Medium, Your Opponents Probably Will. While remaining prudent, litigators shouldn’t want to be the last to the table with a digital strategy. As the reach of mainstream news media declines, a rising percentage of advocacy groups, special interests and plaintiffs’ litigators rely on self-published material to mobilize online opposition to company positions. Organizations that can smartly utilize social, search, video and other online resources will find themselves better positioned to defend both their legal and their reputational interests.
While each litigation situation is distinct and none should be addressed in a formulaic way, we do see common patterns—from the early stages of litigation to long-running battles. In our next piece, we will dive more deeply into strategies that work for each of the litigation communication scenarios we frequently see.
[Next up: Three Key Litigation Scenarios for Deploying Digital Media)
Akeem Anderson leads Abernathy’s digital practice. He counsels clients on forward-leaning integrated digital communications planning and execution across special situations, corporate reputation, public affairs, and internal communications campaigns.
Ian Campbell is Vice Chairman of the firm and founded Abernathy MacGregor’s offices in the West. He focuses on crisis communications, mergers and acquisitions, investor relations, financial PR and issues management across a broad range of industries.