PR TECHNIQUE LITIGATION: Communicating when clients are in court -Internet lawsuits are an emerging PR battleground. James Haggertyreports on the realities of litigation communication

When the bubble bursts, the lawsuits follow.



Nowhere is this chain of events becoming more prevalent than in the

hi-tech industry. With stock options in the toilet, investors and

employees are looking at litigation to address their disappointment with

the industry's collapse.



The dollars 5 billion discrimination class-action suit announced January

6 against Microsoft is one example of this growing trend. Many dot-coms

face similar claims.



Suits by employees center on discrimination, harassment (given the

free-wheeling culture of most Internet companies) and issues stemming

from stock options issued as compensation, while shareholders are suing

because of not being given enough information and then losing money when

the stock price falls. Bankruptcy suits and intellectual property fights

are also common.



Here's the rub: these lawsuits are going to be just as newsworthy as the

launch parties, the joint ventures and the IPOs that dominated media

coverage of the industry during the past several years. Hi-tech is a

high-profile industry in the US and, with the dollar figures involved,

it is fair to expect that some of these suits will make Hollywood's

recent Eisner-Katzenberg fight over Disney cartoon royalties look

low-key and amicable by comparison.



Will dot-coms, which think they know quite a bit about promotion and

publicity, be prepared to handle the public aspects of these

lawsuits?



How the litigation is perceived by analysts, regulators, VCs, the media

and the general public may ultimately mean more to a company's value

than anything else in the coming months. Will the communications skills

that earned them buzz in the first place be as applicable when

addressing issues raised in the courtroom?



The answer, based on recent examples, is probably no. It is likely that

many of these companies will try to apply the same techniques that have

worked for product promotion, and the results will be devastating. Look

at Microsoft. DoubleClick. DEN. These companies were publicity machines,

but when faced with media interest in their legal travails, they

faltered.



Why? Because litigation PR differs from virtually every other type of

PR. The techniques that work in the announcement phase, or when a

company is trying to impress the VC community or the public markets,

tend to fail miserably when attempted in the context of litigation.



Litigation is less forgiving of puff. When promoting a dot-com, it's

safe to assume that there will be a little puffery, some smoke and

mirrors, a sizzle that often outweighs the steak. In litigation,

however, you're dealing with different issues, different reporters and

different audience expectations. They want facts, not hype. If you look

at press releases from any dot-com over the past two years, typically

more than half are of the speculative variety: 'Petplace Announces Joint

Venture With Sell Mart,' 'New Petplace Technology Will Bring Dog Food to

Your Door,' 'Petplace Predicts Profit by 2010.' Litigation communication

requires companies to shift from prediction to fact when providing

information.



Litigation unfolds over weeks and months, not days. A quick publicity

push, a road show and round of editorial board meetings won't win the

day in a case that may take a long time to resolve. Litigation PR

requires a constant exertion of pressure - building relationships,

telling a party's story, explaining complex legal ideas and maneuvering,

building trust with target audiences, including media, regulators, and

the general public.



Much of PR is driven by events - the launch, the new product, the joint

venture, the IPO. Effective litigation PR is more about providing

day-to-day information. Big events, such as rallies, press conferences

and petition drives are less effective when communicating about

lawsuits, where the story is stretched out over months, if not

years.



The one time I recall that an event strategy worked in litigation PR was

in the Hooters EEOC case: the Hooters team dressed up a big, hairy guy

in a skimpy outfit resembling those worn by the restaurant's waitresses

to show the absurdity of alleging men were being discriminated against

in hiring wait staff. It worked. But how often in lawsuits do you get

the opportunity to dress up a man like a woman?



In litigation you have to work with lawyers, and most PR executives know

the difficulties that can be encountered when attorneys dictate PR

moves.



But there's no getting around it when a company is being sued. Most

litigators are woefully unaccustomed to plotting public strategy along

with legal strategy. Moreover, there is also the lawyer's mindset, which

fosters argument, equivocation and convolution. Overcoming these

obstacles and forging a healthy working relationship with legal counsel

can be the difference between success and failure in many of these

cases.



Ultimately, for Internet companies who face these suits, the best

solution will be a shift in communications strategy from one that touts

the new thing to one that regularly and consistently presents evidence

in a manner that solidifies the credibility of the company's legal

position.



James Haggerty, an attorney, is president of the PR Consulting Group, a

New York-based firm that advises companies on litigations communications

issues.



TECHNIQUE TIPS



1. Do establish your credentials up front. Lawyers need to know that you

are the professional in the communications aspects of the suit



2. Do understand the legal issues, the substance of the dispute and how

strong the case is



3. Do frame the story first. Litigation is a long process, but generally

whoever frames the legal facts in dispute first has a clear

advantage



4. Do understand the process. Motions, discovery, pleadings, summary

judgment - the better you understand these phases of a lawsuit, the

better you will be able to formulate strategy



1. Don't shy away from defending your point. Present your position,

defend it, anticipate lawyers' objections and head them off at the

pass



2. Don't mistake argument for disagreement: litigators test the validity

of a position by arguing the other side. It does not necessarily mean

that the lawyers are against you - in fact it usually means they're

taking your ideas seriously



3. Don't think all the action will happen in the courtroom. Most

activity occurs in the pre-trial stage, as documents are gathered,

themes developed, and motions and briefs are prepared supporting each

side's arguments.



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