Byfield’s Richard Elsen was recently featured in the Solicitors Journal’s Litigation Focus (August), discussing the rise of litigation PR. The text of the article is below.
Effective litigation PR can ensure cases are reported accurately and minimise any potential damage to a client’s reputation, says Richard Elsen.
Many litigators reading this article will have handled cases where media interest has resulted in inaccurate or skewed reporting which, despite the eventual outcome, either soured a victory or aggravated a court room defeat. This is inevitably upsetting for the client, particularly where it follows a bruising dispute that will have been both expensive and disruptive to them.
It is a fact of modern legal life that when the media gets it wrong about a dispute, the damage can be long-lasting, with negative ramifications for the client’s personal or business reputation. Sadly, often it’s both that suffer – but if effective communications are in place, hopefully from the start, the problem can be averted or mitigated with media engagement turned to the client’s advantage.
Litigation PR first became prominent in the US in the early 1990s and is now becoming more commonplace here in the UK, in a range of disputes where there is likely to be media interest.
The purpose is to work with journalists – either pro-actively or re-actively – to ensure that media reporting is accurate, fair and balanced. Often the engagement offers an opportunity to inform journalists of the background and facts of the case in question, to educate them and so influence how they report it. Initially in the UK, during the late 1990s, only lawyers involved in higher value, high profile cases considered the media dimension to ensure that their clients’ interests were protected in a wider sense, not just in the legal arena. Today this sense of wider client care is much more usual. Litigators see that they add value to the client relationship by introducing communications experts into the Litigation mix.
But unlike other PR such as crisis communications, Litigation PR always operates within a tight legal framework. By necessity, there is a particular closeness between the communications consultant, the client and their legal team. It is essential that the communications adviser has a clear understanding of the legal process, the status of documents and information and, should the case reach trial, contempt rules.
And there are obvious risks involved in hiring inexpert PR support. Key questions need to be asked before any external Litigation PR consultant is hired. The first thing is to establish whether they actually are a Litigation PR agency with relevant experience, particularly as you may be entrusting your client’s reputation to them.
You should ask about which law firms they have worked with. Do they understand and can they demonstrate knowledge of the legal process? Do they actually have court experience, if so get details and check the coverage, easily done now through Google and other online searches. Are they familiar with the journalists likely to cover your case – it is reasonable to ask who might be writing about your dispute. Do you recognise their casework examples, and if so what was your impression of the coverage achieved in these cases?
Additionally, it is very important to establish whether the PR firm can demonstrate knowledge of the legal status of the court documents that they will likely have access to, such as claim forms and witness statements. Can they demonstrate an understanding of when the status of some of these documents, especially witness statements, changes? Failure to do so should raise serious questions about the agency’s ability to do the job properly, without contempt issues.
Finally, ask whether the agency provide solid client references. This is an important due diligence test, as an indicator of an agency’s Litigation PR credentials is whether they get repeat referrals from the law firms they work with. An effective Litigation PR agency should be able to provide you with a range of checkable references from lawyers that they have worked with.