The Evidence vs. the Narrative

A major lawsuit isn’t just something to manage on the docket, it can have a massive impact—both privately and publicly—on a company’s (or an individual’s) reputation.  In the era of social media and constant connectedness, public opinion will not wait until all the facts are established in court.  Instead, the narrative can be written and turned into conventional wisdom long before the first witness is ever called.

Firms and individuals who wait until their day in court vindicates them may be earning a Pyrrhic victory.  Even a complete success at trial may not be enough to counter an erroneous narrative that took hold before the facts could be established.  To protect your legacy, your brand, or your company’s valuation, your legal and PR teams must be aligned and their strategies coordinated by your counsel.

What You Say (and Don’t Say) in the Press Matters

There are two competing instincts for how to respond to the publicity surrounding a major case – to “set the record straight,” or to say “no comment.”  For example:

  • A CEO decides to take charge of the situation and make a public statement about where the company stands and why it believes it is right. No doubt, she recognizes that if she said nothing, the vacuum created by silence would be filled by the company’s detractors (or the other side in the litigation).  They would be the first movers and have the advantage in creating a narrative that sticks.
  • A party to a lawsuit limits himself publicly to nothing more than “no comment,” knowing it is the safest thing to say and will keep his public statements from becoming liabilities at trial.

Both are guided by a desire to protect your reputation, but they both come with serious potential costs, either in the litigation, the public sphere, or both.  In reality, neither extreme will serve you well when your case has drawn public attention.  Publicity around a lawsuit is like its own trial.  Your PR team will want to take the initiative, control the narrative, and begin publicizing your version of events.  That is the best way to win in the court of public opinion.  But doing so can create unacceptable risks.

The Privilege Waiver Trap

Ordinarily, your communications with your PR advisers are not privileged.  And much like an imprecise statement a party makes to the press, disclosure in discovery of what you say to your crisis communications team as you craft a strategy can be treated as a party admission or used for impeachment.  Directly hiring your crisis PR team can get your message into the public sphere, but it can also be a fatal mistake to your litigation strategy.

Protecting the Shield: Why Counsel Must Lead

The solution is a properly coordinated strategy between your public relations team and your legal counsel, with the attorneys retaining the communications consultants and taking the lead.  Legal counsel can ensure the communications strategy is precise and accurate – providing relevant information to the public in a timely fashion without creating opportunities for your adversary to impeach you.  The attorneys can also ensure that trial strategy is not improperly disclosed.   Most importantly, attorneys experienced in coordinating with public relations teams can work within the confines of the applicable privilege laws—which can vary wildly depending on where your case is filed—to ensure there is no inadvertent privilege waiver.  An integrated strategy in which public statements are meant to afford as much transparency as possible while protecting your litigation strategy will maximize your chances of prevailing both in the courts of law and opinion.

Milestones in the litigation – success at the motion to dismiss or summary judgment stages  – can be used to shape the narrative in public.  Thoughtful coordination between attorneys and communications consultants can ensure these events have maximum impact on how the public views the case.  Large law firms often have difficulty managing this aspect of communications coordination because of the layers of bureaucracy that can prevent responses on the news cycle timeline.  A line in a story that reads “Defendant’s counsel was contacted for comment, but did not respond,” is a wasted opportunity to get your side of the story into the press.  Nimble trial boutiques, however, are well-positioned to take advantage of the fast-moving news cycle to get positive coverage for your case.

Conclusion

Winning in a court of law after the court of public opinion has already turned against you is no victory at all.  By the time justice is served, your reputation or business could already be ruined.  Public trust and standing take years to build but can be destroyed almost instantaneously.  To best position yourself to win in both arenas, you need expert trial counsel well-versed in coordinating with and leading a PR effort as well.

Keller Anderle Scolnick has handled the highest profile matters for major companies and high visibility, high net worth individuals.  We are experts in identifying the right communications consultants and bringing them onto our team to ensure we can win the two-front war for our clients.

Bring us your toughest case.  We’ll get the job done.