by More often than not, legal counsel will hire a consultant who specializes in litigation and crisis communications to help legal counsel, the C-suite, management and leadership, as well as the communications team, understand the potential implications of their decisions and how to best communicate about them. That work also may include engagement with internal and external stakeholders, government, partners and clients. They must do all of that without ever losing sight of the litigation objectives.
Very few firms can say that they truly specialize in both practice areas of strategic communications – litigation and crisis.
Effective communication during litigation requires understanding and analysis of both sides of the case, litigation process and strategy, as well as litigation events (e.g., amendment, appeal, etc.) that may require their own communications strategies.
To that end, any event, action or statement during the course of litigation, even if not directly related to the case, may have implications on both litigation strategy and outcome, as well as the firm’s reputation. However, a company can’t possibly predict or be prepared for every scenario that may come their way.
This is why every litigation needs to be treated as a potential crisis, so as not to become one. Only when a company adopts the mindset of crisis preparedness, can it be prepared to anticipate and respond to events that may become one.
What are the phases of creating a litigation communications strategy that embodies crisis preparedness?
1. LITIGATION STRATEGY, INDUSTRY AND ISSUE ANALYSIS
A communications specialist needs to be briefed by legal counsel and top management about their short and long term litigation objectives and how they plan to achieve them. Seasoned PR executives will, in addition, assess the relevant industry trends (past and present) in the context of the arguments in the complaint and identify key issues in support of and against those arguments. This issue analysis can be used to anticipate tough questions from stakeholders and the media and inform a response, if any. This is the key aspect of treating litigation as a crisis – creating a holistic view of the issue, as opposed to narrowing it down to the question at hand.
2. LITIGATION PROCESS AND MILESTONES
Once the litigation process and key dates and decisions in the case are known, a communications specialist should develop a mini-strategy crisis communications plan for each. Integrated expertise in both crisis and litigation is critical in ensuring a company is prepared to anticipate reactions and questions and respond accordingly. Sometimes no response is the best response.
3. STAKEHOLDER ANALYSIS
Legal counsel usually advises companies not to speak about litigation with their internal and external stakeholders and the media unless they have reviewed and approved statements in advance. Communication strategies should always be aligned with the advice of legal counsel, and companies need to be ready to communicate about other matters in a way that instills both confidence and comfort among its stakeholders – employees, partners, clients, vendors, community. Of course, a company should in practice be confident that it is doing the right thing in order for this message to be effective. While speaking on litigation matters may be limited or not advised, a company has an opportunity to communicate about other things – connecting with one’s audience to rebuild and strengthen relationships. This is particularly important during a time of crisis.
4. MEDIA ANALYSIS
The filing of the complaint usually triggers a first media event – communicating that this is active litigation and analyzing the issues at hand. Most of these are picked up by legal publications only unless a party or both parties have a public profile that may attract the interest of a trade or national reporter. There is no immediate clear answer to whether one should speak on the record, on background, off the record, or at all, but one thing is true – a reporter’s question should never be ignored.
A second media cycle usually involves extracting the meaning behind litigation and may include commentary from new sources. The news cycle to follow will most likely cover litigation milestones, unless there is another event connected to one of the parties that generates media interest on its own.
When engaging with the media and speaking off the record or on the background, a communications specialist should include legal counsel and assist them with communicating with the reporter off the record or on the background.
Adopting a crisis preparedness mindset is critical to advancing a company’s litigation objectives. Every company should have a strategic issues management and crisis communications plan that ensures preparedness. Once a crisis happens, in the absence of a crisis plan, a company exposes itself to risks that cannot be managed so easily or quickly. This is especially important during litigation – regardless of whether a company is a plaintiff or a defendant. Having a crisis-ready litigation communications strategy is something that will assist the legal counsel, C-suite and management in focusing on things they need to do, as opposed to worrying about whether and how it should be communicated.