OP-ED: Litigation PR vital to winning in court of public opinion

When former Vice President Aaron Burr entered a Virginia courtroom to stand trial for treason in 1807, nobody had yet invented the term "pre-trial publicity" - but the press was learning on the job. One observer said that the allegations against Burr had "resounded through the newspapers so long and so strongly" that they already had created "the general opinion" that Burr was guilty.

When former Vice President Aaron Burr entered a Virginia courtroom to stand trial for treason in 1807, nobody had yet invented the term "pre-trial publicity" - but the press was learning on the job. One observer said that the allegations against Burr had "resounded through the newspapers so long and so strongly" that they already had created "the general opinion" that Burr was guilty.

Despite the negative press, Burr beat the rap. But nearly two centuries later, the law and PR professions, which have long inhabited separate planets, seem to be recognizing reality: The playing field for legal action doesn't exist solely behind the courtroom door. In many cases, litigants who ignore the court of public opinion do so at their own peril. Celebrity cases, high-profile murder trials, and the like have always been hot topics in the US media. But over the last decade, two trends have raised the stakes and driven lawyers, albeit reluctantly, into the arms of PR professionals. The first is the increase in high-profile civil corporate litigation, particularly the rise of class-action injury lawsuits. As savvy plaintiff lawyers quickly discovered, these cases are gold mines for attracting media coverage and shaping public opinion well in advance of a trial. They offer numerous human-interest stories and play into the well-worn cultural themes of David versus Goliath, conspiracy, corporate greed, and exploitation of the powerless. Corporate defendants began fighting back with their own PR efforts to support their legal cases and to protect their reputations and bottom line. The second factor has been the super-charged information environment created by the internet. While television was making litigation a staple of news and newsmagazine programming, the internet's unprecedented speed and reach created a powerful platform for plaintiff law firms, activist groups, and others to recruit plaintiffs and influence opinion at the grassroots level. Nevertheless, the PR-legal courtship has been a rocky one. For a time, joint efforts were more competitive than cooperative. Lawyers typically considered PR to be somewhat distasteful and probably dangerous to their interests. Accustomed to a forum with rules and the ability to exert control over the process, attorneys couldn't wrap their minds around the anarchy, uncertainty, and immediacy of media relations. If lawyers were arrogant, a lot of PR practitioners were just plain ignorant. Relatively few understood the basics of the legal system or the dynamics of communications during litigation. PR people who failed to know and respect the lawyer's mindset found themselves talking to brick walls. In the worst cases, public statements or other actions did real damage to the party's legal position. That learning curve has spiked dramatically. In-house PR people got wise that they needed to work with lawyers if they were to have any influence over communications strategy, and PR firms recognized their clients' growing needs for specialized experience. Over time, litigation PR has become an essential element of crisis and issues management. The Institute for Crisis Management's annual report continues to list class-action lawsuits as the single largest category of business crisis (although its growth rate seems to have slowed somewhat, at last). Lawyers, too, are getting with the program. Many defense attorneys have recognized the importance of managing outside-the-courtroom audiences. Others have decided that keeping an eye on PR is smarter than shutting it out. The best made it a point to learn the rudiments of our world, as we have theirs. If litigation PR has evolved greatly, its next phase is likely to be the most challenging of all. A company's legal exposure has become a key factor to industry analysts on whose opinions stock prices rise and fall. Sensitive documents turn up on websites like thesmokinggun.com long before a judge even considers them. Perhaps most important, PR counselors now have a real opportunity to secure a seat at the table where strategic business and legal decisions are made. There is a growing recognition that, just as communications can play a role in legal strategy, legal actions often have an impact on a firm's reputation and relationships - a factor that is far better examined before the controversy hits than after. When legal and reputational goals collide, no one is better positioned than the communications professional to be sure executives make decisions with their eyes wide open. Earning and keeping that coveted seat will require us to continue educating ourselves, showing attorneys that we "get it" even if we don't always agree, and doing all we can to turn the shotgun marriage between PR and law into a very meaningful relationship.
  • Karen Doyne is managing director, crisis and issues management, at Burson-Marsteller in Washington.

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