This article addresses the importance of litigation PR / media strategy.If you talk to most lawyers who are in their 60’s and 70’s, they will probably tell you that the media and the press have no role in litigation. That using the press in litigation is sacrilege. That once in litigation, disputes must be resolved solely in the courts, as if courts are somehow bastions of purity and equity. These lawyers tend to view law through rose colored glasses and have fond memories about how law used to be— when they started their career in, say, 1985. But I said most lawyers of this age bracket. My old boss, David Boies, is nearing 80. And he could do a master class on the importance of a media/PR strategy in high-stakes litigation.
- Nothing in any professional/ethical rules prohibits use of the media or generally prohibits statements to the media. To the contrary, the applicable rules actually recognize the importance of the media/press. The at-issue rules deal specifically with publicity on the brink or trial— that could taint a jury. So unless you’re on the brink of trial, that’s not even a consideration.
- The other side is already using the media. I just read an article today about a newly filed non-compete/trade secrets lawsuit. The article read like a hit piece written by the plaintiff’s lawyers or PR team. Because it probably was! So on one hand, sanctimonious old school muckity mucks will lecture you about how it’s wrong to leverage the media/press. Meanwhile, those lawyers and their colleagues are already doing it! Their BIGLAW firms have PR departments that specialize in strategic media (hence the hit piece I read today).
- The other side is probably using the litigation to run a smear campaign already. Anytime a company sues someone for theft of trade secrets, breach of a non-compete agreement, etc — there is a strong possibility that the company is out in the market running a smear campaign. At this point in my career, I have seen the same movie dozens of times. Company A sues former employee (Joe) and Joe’s new company (NewCo) for theft of trade secrets. Company A goes to 10 key clients and tells them, “We just wanted to let you know that we are currently suing Joe and NewCo for theft of trade secrets. It’s unfortunate that this had to happen, but we have to protect our business. If Joe and NewCo come to you seeking business, please keep in mind that they are using stolen trade secrets. For your sake, it might be best if you avoid doing business with them until the litigation is resolved. We don’t want you to get dragged into the litigation for discovery and depositions.” I have seen this or something similar probably 100 times.
- You need a counter-narrative. Given the prevalence of (3) (smear campaign), a counter-narrative becomes absolutely imperative. Think about it like this: Those 10 key clients represent $20 million in annual revenue. If those clients believe the smear campaign and withhold their business until the litigation is resolved, that is potentially catastrophic. But that doesn’t even represent the full picture: What about potential clients who read about the litigation in the press, online, etc?
- You probably need a separate PR team. There are a handful of law firms that actually know how to run media/PR campaigns. If you are represented by one of those firms, that’s great. If not, you will need to hire a litigation PR firm. The best litigation PR firms tend to have some affiliation with a lawyer who is/was successful in high-stakes litigation.
- Avoid astroturfing at all costs. If you are reading this article, you probably already know what astroturfing is. For those who are not familiar with the concept: Astroturfing is basically making a message/PR campaign appear to be grassroots when it is actually backed/funded by a particular company/interest group. A number of my media/PR clients have asked me about this sort of strategy (often without knowing the term “astroturfing” and at the recommendation of typical PR firm). It’s a terrible idea and will destroy your credibility.
- Good litigation PR/media strategy costs real money. Litigation PR is like anything else: You get what you pay for. Beyond that: This is not the appropriate place for cutting costs. Cheap litigation PR is a disaster waiting to happen. Realistically, if you are contemplating a move in this direction, you should expect to spend $25,000++ for any modest litigation PR campaign.
Jonathan Pollard is a competition lawyer, writer, expert witness, and consultant based in Fort Lauderdale, Florida. He has appeared in or on The New York Times, Bloomberg, PBS NewsHour, Law360, FundFire, Litigation Commentary & Review, and many more. His office can be reached at 954-332-2380.
