Litigation PR: I won't see you in court

As lawyers urge more of their clients to settle out of court, litigation PR must change with the times, says Steve Hemsley.

Immediately after Martin Bashir's high-profile documentary Living With Michael Jackson was broadcast on ITV in 2003, litigation PR specialist Bell Yard set to work for the singer, devising a rebuttal strategy to respond to hostile media coverage.

Working closely with Jackson's legal teams in the UK and the US, Bell Yard focused media attention on the betrayal Jackson felt he had suffered at the hands of Bashir. It prompted a full front-page story in the Evening Standard. It is an ongoing contract for Bell Yard as Jackson continues his claim for damages from Granada Media Group, although activity has been halted because of the performer's child-abuse trial in the US.

Alternative solutions

Jackson's legal teams understand how an effective litigation PR campaign can win over those inside and outside of the courtroom. PROs involved in this specialist area have a close relationship with lawyers as well as journalists. Yet the role of the traditional litigation PRO is changing.

Increasingly, parties involved in disputes, whether they are celebrities or corporations, are choosing alternative methods of resolution, such as arbitration, mediation and adjudication.

This trend started in 1999, following one of the biggest changes to the civil justice system, when the Access to Justice reforms came into play. These measures were intended to lessen the burden on courts by encouraging people to resolve their grievances by alternative and more cost-effective methods than a court hearing.

The reforms appear to have worked. According to the Department for Constitutional Affairs, the number of claims heard by the High Court's Chancery Division, which deals with disputes relating to intellectual property, patents and trademarks, fell from 8,720 in 1998-99 to 6,335 in 2002-03. Similarly, the number of claims heard by the Queen's Bench Division, which assesses damages claims for breach of contract and libel, were down from 72,161 to 14,191 over the same period.

Lawyers are increasingly advising corporate clients to avoid court because even if a company wins its case, it can take years for a brand's image to recover from negative media coverage. Lawyers are even encouraging the use of arbitration clauses in business contracts to pre-empt future disputes.

For journalists, the reforms were bad news because, unlike in the High Court where juicy details are made public, discussions during arbitration are confidential. There is also argument over whether the workload for PROs will also suffer from this growth in non-litigation resolution.

'Many lawyers are pushing their clients into legally binding third-party arbitration, and if more people choose this cheaper and less public course of action they will have less of a need for litigation PROs,' says Stephen Lock, general manager at Mmd Public Relations (Russia).

Lock has worked on a number of high-profile intellectual property actions, such as the 'grey market' battles of Nike versus Sainsbury's and Tommy Hilfiger versus Tesco. 'Often litigation PR relies on an exclusive being given to the Sunday papers and usable quotes being given to titles that cannot afford to have journalists in court all day. We will see less and less of this,' he argues.

While many PROs accept the number of court cases requiring their services will continue to decline, there is debate about how far levels of business will fall. Many insist there will always be demand for their services as disputes must be settled one way or another.

'While the current trend is bad news for the media, which won't get as much colourful copy from the courts, it is good for PR because it means clients will not be washing their dirty linen in front of judges,' says Partner PR director Jonathan Hawker.

'But clients will still need PROs who understand the legal process and appreciate the impact a dispute can have on reputation,' he adds.

Behind closed doors

Indeed, for clients that do face the prospect of a lengthy and costly court battle, PR can be a useful weapon to convince the instigators of legal action to resolve things differently.

'There can be tremendous pressure surrounding a legal action in terms of the impact it can have on the standing of a company or person. Good litigation PR and the media coverage it generates can govern whether people settle, arbitrate or mediate. A lot of our work goes on before a case begins,' says Weber Shandwick Legal managing director Jon McLeod. He worked with lawyers representing Hollywood couple Catherine Zeta Jones and Michael Douglas during their much-publicised court battle with Hello!. However, he believes that in the future, celebrities will be more inclined to settle out of court, particularly when it comes to libel cases.

Less litigious future

'Celebrities often want to take legal action because they feel emotional about what has been said about them and are personally affected. However, accusations will be repeated during a court case, there can be huge costs involved on both sides and an action will damage the relationship that celebrity has with a particular publication,' says McLeod. 'Nowadays they are more content to deal with it in other ways, such as accepting an apology or a correction, or maybe agreeing an out-of-court settlement.'

There will still be a role for litigation PR in celebrity disputes because stars will want to use the media to ensure the public is sympathetic to their complaint. This can be essential if they are to obtain the result they want without having to go to court. Meanwhile, one of the fastest growing areas for settling disputes is mediation, where both parties agree on who should be the independent mediator. Unlike arbitration, which is judicial determination of a dispute heard by a neutral third party, mediation is not legally binding.

The Centre for Effective Dispute Resolution, set up by the Confederation of British Industry in 1990, says its caseload increased by eight per cent last year, up from 642 cases in 2003 to 693 in 2004.

'Mediation takes the heat out of the situation and provides quicker results for clients than the courts or arbitration,' says Richard Elsen, co-founder of Bell Yard and formerly deputy head of the Labour Party's 'rebuttal and attack' media team during the 1997 general election campaign.

He adds: 'Litigation PR can help create a climate where mediation appears to be the best option, especially when people know discussions will be confidential.'

Although journalists will be disappointed to see salacious - and potentially lucrative - court cases being settled behind closed doors, PROs will always be needed to protect their clients' reputation, however they choose to fight their corner.

TIPS FOR LITIGATION PROs

1. Have a good understanding of the law, particularly relating to contempt-of-court rules, or you may find yourself in court - or even jail.

2. Nurture close working relationships with clients' law firms.

3. Ensure all documentation relating to a case is kept in a secure file within the agency and limit access and distribution to those authorised by the lawyers to read it.

4. Make sure the lawyers understand fully the role of the litigation PRO and explain how PR can help their client if they are not convinced.

5. The courts' timetable is not good for media deadlines so the best litigation PROs are able to work around this to help journalists.

6. Less is often more. Often the most effective campaigns are when the litigation PR team says and does very little but ensures that what is done is significant and carried out after the lawyers have been fully briefed.

7. A client's in-house PR team needs to be aware of the litigation PRO's role and strategy so it does not jeopardise any activity and can get on with its day-to-day work.

8. The in-house PROs or other agency teams also need to be made aware of contempt-of-court rules.

9. During any legal case, specific individuals at the client may feel nervous and stressed. The litigation PR team must be experienced enough to advise the client regularly on the media coverage they can expect from day to day.

10. Don't try and second-guess a judge when planning a campaign, just put forward the client's case, whether it is the defendant or the plaintiff.

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