OP-ED: Branding possibilities abound in the litigation process

Today's corporate litigation climate is characterized more by the billions of dollars spent annually on litigation costs than by meaningful planning to confront the avalanche. As such, it's no wonder corporate America spends more time whining about the plaintiffs' bar than it does putting on its strategic thinking cap and getting to work.

Today's corporate litigation climate is characterized more by the billions of dollars spent annually on litigation costs than by meaningful planning to confront the avalanche. As such, it's no wonder corporate America spends more time whining about the plaintiffs' bar than it does putting on its strategic thinking cap and getting to work.

Sobering statistics about public attitudes on corporate defendants is revealing. According to a recent Hill & Knowlton/Opinion Research Corporation survey, the public finds corporations guilty in compelling numbers if companies stand mute or evasive in the face of litigation. Perhaps more importantly, the public is less likely to purchase products and services from these voiceless companies. Most companies aren't getting the message, however. We can blame lawyers' conservative admonitions to clients about speaking publicly during litigation for this, but that would be a bit harsh and not entirely accurate. The fundamental problem is that litigation is not viewed by corporate America as a strategic opportunity. Paradoxically, the same company that carves up the fresh powder on the moguls with dynamic thinking and edgy innovation on the product side struggles impishly on the strategy bunny hill in the face of litigation. Corporate instincts on litigation communications continue to be mainly guided by a bunker mentality that only leads to a diminished stock price and low public confidence. But the solution is right in our corporate backyard. The same savvy thinking and strategic fiber that sets apart a company in a spirited marketplace must be cut and pasted to the litigation communications domain. Companies need an action plan that provides an organizational mandate to anticipate and control the public dimensions of litigation. In an environment in which sudden drops in share price or a publicized letter inquiry from a regulatory institution can be fodder for an eager plaintiff's lawyer, it is vital to have an action plan that identifies the tools and tactics needed to anticipate the reputational risks associated with litigation. The company that anticipates emerging legal vulnerabilities proactively, along with the associated concerns of its critical stakeholders, is the company that has taken the first substantial step in limiting litigation fallout. The company that then devises an integrated strategy to preempt audience attitudes before the complaint is filed earns its place as the case study all us litigation communications experts will cite in perpetuity. The two basic components of the planning process are intuitive. The first one is to protect the corporate brand. Develop key messages and an action commitment contoured to the legal issue that has arisen or is likely to arise. Then make certain that messages are clear, that the proof points you use to support those messages are compelling and accessible, and that the vehicles are designed to align both external and internal communications to broadcast accountability, measurability, availability, and transparency. We all know that a balanced story is an uninteresting story. An airtight public demonstration of a case, wedded to the facts that support the case in a way that resonates with key audiences, is the garlic that makes investigative journalists and plaintiffs' lawyers look elsewhere. Would-be antagonists, public or private, routinely look for the easiest nut to crack. The second key component is building the brand. The threat of litigation and the corporate spotlight that accompanies it should be considered an opportunity. The smart company recognizes that it is an occasion to reach out to tuned-in customers and tuned-in audiences. Engaging lawyers in a cooperative way for assistance to communicate effectively with critical audiences will ensure that important liability and evidentiary concerns are protected. Enrolling third-party advocates is a great way to bolster the efficacy of a corporate position. With a plan in place that lines up the strategy ducks, the task is easy. At the end of the day, the imagination of the American public is always more damaging to corporate reputation and the bottom line than the truth. It's like the movie that is the beneficiary of substantial pre-release hype; as our imagination fuels our expectations, our enjoyment of the movie tanks in commensurate measure. Telling the story during litigation is a critical corporate brand management tool. Do it before formal legal action has been taken and your company will win an Oscar.
  • Harlan Loeb is US director of Hill & Knowlton's litigation services practice and an adjunct law professor at Northwestern University Law School in Chicago.

  • Have you registered with us yet?

    Register now to enjoy more articles and free email bulletins

    Register
    Already registered?
    Sign in

    Would you like to post a comment?

    Please Sign in or register.