During the first lockdown I noticed an advertisement in Counsel magazine for a barrister to join the litigation communications and reputation management team of a corporate PR firm. The spread was intriguing because I assumed this type of work did not exist in this jurisdiction. I thought the work mostly concerned attempting to sway a court one way or another, in countries without a clear separation of powers, in cases of a political nature. It transpires that it is prevalent here, it should never concern attempting to influence the decision of the court, and it is utilised in a wide range of cases.

My experience since joining has been eye-opening. Inevitably I have ulterior motives in writing this article, but I ask for the benefit of the doubt considering that barristers are not the firm’s target market; barristers rarely form part of the decision-making process between law firms and their clients with regards to whether a communications firm should be instructed.

What is litigation PR?

Litigation communications and reputation management can be highly effective for cases across all practice areas, including (contrary to what many practitioners believe) criminal investigations and litigation.

Clients are no longer just concerned with legal advice, and nor should they be. Many clients want to understand whether there will be news coverage of their case, whether they can tell their story to correct any false impressions, whether their business interests will be impacted, whether the share price of their company will dip, whether they will still have access to finance, and for some, simply, what will people read about them.

The purpose of a communications firm is not to pick up the phone to a journalist to share a scoop or what has happened in court. Instead, their role is to conduct a full reputation risk analysis, a thorough media and online audit, and engage in a comprehensive research exercise. These workstreams provide a clear picture of any journalists likely to be involved, what they might write about, what online assets exist, what the social media footprint is like, who the interested parties will be (whether a party to the litigation or not), and so on. For some complex cases, the information will be mapped on charts, which serve as guides to where the potential risks and opportunities might arise. From there, firms plan and execute their communications strategy.

This is the work conducted before the parties even step foot in court (or access the CVP link). Many cases require establishing relationships with journalists in person, in court. In complex cases, journalists can spend an inordinate amount of time trying to understand what is happening in court; primarily because the judge and the barristers have access to a great deal of information, which has not been made available to the journalist. While courts may adhere to the principles of ‘open justice’, this does not mean that the advocacy is or should be tailored to ensure that any members of the press know what is being discussed and why. Specialist agencies, firms, however, often step in to assist. Legally trained communications specialists sit with the press; not to disclose privileged material or to provide comment on the client’s behalf but to assist with general questions on proceedings or provide guidance on the legal principle being discussed.

Ascertaining the goals

The situation is, of course, far more nuanced with criminal investigations and prosecutions, than is the case for commercial litigation; however, advising ‘avoid all contact with the media’ sidesteps the issues identified above. Of course, for many cases the goal is to keep any mention of the case out of the press, yet they so often appear there. In cases where press interest is inevitable it would be far better, firstly, to have a firm onboard that can prepare responses on all the potential lines, should the story ever break, and secondly, a firm with direct access to journalists at the best publications for the case and for the client, who will provide a fair account, giving the client control of the narrative.

Communications in criminal investigations often do not directly concern the case or the client. Communications sometimes consist of requesting journalists to ask the right questions: Why has this client been targeted, when so many others in similar circumstances have not? Why has this client not been offered a civil route when so many others have? Furthermore, clients under investigation may want to explain to the media all the positive points, which the regulator or law enforcement agency has neglected to mention in their press releases. Let’s take, for instance, investigations or deferred prosecution agreements in relation to listed entities. It may be in the interests of the shareholders of that entity for the directors to provide information in relation to the inherent good value of the company, despite the (accepted) wrongdoing. Likewise, it may be in their interests to detail the changes implemented as a result of the investigation, in order to ensure such wrongdoing does not happen again.

How a party deals with being on the wrong side of negative publicity in relation to litigation can speak volumes. Even where there has been no defence to what has been thrown at the client, the way in which the position is handled is vital. The key is to prevent it from becoming a crisis and thereby establish a base from which to move forward once the dispute is over.

Being prepared in the digital world

The final point to note on the importance of litigation communications is the digital world. Part of the problem for clients is that today’s news is no longer tomorrow’s rubbish; rather, whatever is reported today can stick around for quite some time, whether in the initial publications or reposts of those publications. Being able to manage what is said about the client is consequently critical. To take an example, a client could be involved in a deal, five years after a commercial fraud case, which falls apart because due diligence results in a hit on Google page one based on the client’s litigation opponent’s version of events. Another common example is a bank freezing the client’s account after identifying a World Check hit years after litigation has concluded, due to an unfavourable article on an online publication. Negative reports can cost the client a great deal of time and money. Every opportunity to communicate should therefore be viewed as an opportunity to control the online profile of the client and enhance their reputation.

Every case is different, and the approach taken can differ tremendously. If a case is likely to be in the public domain there is a huge advantage in having a say in the way that the case is reported. There are times when it is better to sit out completely, times when it is better to wait and see, and times to speak out first. However, being prepared will always be in the client’s best interests.