Communication Strategy to win litigation

In the face of a potential dispute, a communications strategy needs to be as well-planned and disciplined as the litigation strategy. Integrating the two approaches can help to protect the company's reputation and also to maximise its chances of reaching a successful conclusion.

Because of this, lawyers and professional communicators are working together closer than ever before. This phenomenon has been accelerated by the instantaneous and ubiquitous nature of social media and the global nature of communications and business; and so the need to have a managed approach to litigation communications is greater than ever before.

Challenges

The interface between the media and legal worlds can be difficult. In some jurisdictions, the laws of contempt deal harshly with those who seek to undermine the judicial process by publishing material that may distort or influence a trial's outcome.

In addition, with the advance of anti-corruption legislation across many jurisdictions, there may be criminal sanctions where the release of information about a live investigation might constitute the tipping off of those in the authorities' sights.

However, the rules allowing fair reporting of courtroom events, and the media's tendency to report cases long before legal proceedings have begun, mean that for most companies it is no longer a question of if, but when, the publicity surrounding a contentious issue will strike.

Smart organisations recognise the damage that disputes can do to their reputations. Companies that integrate risk awareness and management into all of their operations are less likely to suffer high-profile public disputes; their systems should have identified the risk early on and management should have taken steps to address that risk with communications planning.

Strategic considerations

When a dispute looms, the responding communications strategy must consider a number of key issues:

Commercial needs. The communications and legal strategies both stem from the commercial needs of the business. These include the protection and enhancement of the company's reputation and brand, and the need to maintain strong relationships with key clients and stakeholders, including access to vital markets. It will be important not to expose the company to unwarranted financial risk and, to the extent that it is prudent, to keep employees informed of the existence and nature of the dispute.

Management. A nominated director (for example, the chief executive, the general counsel or the finance director) should take responsibility for ensuring that management of the dispute is co-ordinated internally.

Regardless of his background, the project leader must take a 'helicopter view' that enables him to see the advantages and disadvantages of the available approaches and tactics. If the general counsel is in charge, he has to be objective, rather than favouring a legal solution. Other solutions, such as the use of the media to advance the case, may be equally, or more, effective than a legal approach.

A small steering group or internal committee should be assembled in order to discuss appropriate strategies, and especially whether the commercial strategy is still appropriate. The group can also determine whether certain tactics need revisiting.

Openness. A vital part of a communications strategy is to decide whether the company wants proactively to bring the dispute into the public gaze. The risks of taking this approach early on include:

• The company may be judged by the media and other commentators long before the full evidence is heard.
• Stakeholder groups (such as shareholders, employees, business partners and suppliers) may raise questions that the company is not prepared to answer at that time.
• A relatively trivial issue may be brought to the forefront of how the organisation is perceived by the public.
• Settlement discussions may become much more difficult and force the opponent to harden its position, or even stage a tactical withdrawal, as it becomes more important for it to "save face".
• In criminal investigations, laws on "tipping off" mean that the disclosure of an investigation could be a criminal offence.

However, in some cases, the company may simply have no choice. Where the opponents have already briefed the media, there may be stories about the company that affect its share price and cause suppliers to question whether they should trade with it.

In such circumstances, simply having "no comment" is no longer a practical or credible option. That void will be filled by a wealth of alternative opinion, not least in the social media sphere, where attitudes can quickly harden and go on to set the 'traditional media' agenda. This can be very hard to reverse as time passes.

There are, however, numerous advantages of taking a more open, robust approach:

• It ensures that the company's voice is heard, its position is known and it is seen to be unafraid to fight the battle.
• It allows the company to question publicly why the opponent is not willing to do the same; the inference being that they must have something to hide.
• It can help force the pace of settlement discussions in civil claims, giving the opponent a taste of how the company intends to keep the dispute in the public arena as much as possible.
• It means that a company can control the story's timing and manner of release.

Not all aspects of a case need to be brought out into the open. Organisations should decide which elements of their side of the dispute they want to emphasise, and which to keep private. This approach enables the company to set the agenda for a public debate as much as possible on its own terms.

Audience. There are numerous potential targets for communications; each needs to be identified and the message about the dispute tailored accordingly. From a corporate perspective, the company's different audiences may include its institutional investors (and other shareholders), internal influencers such as board members, employee representative groups, trade unions and subsidiaries. It is also important to consider the business's suppliers, alliance partners and customers. These are the people from whom everyone in the organisation ultimately earns their living and who can be sensitive to a business's reputation.

In the wider world, it is also worth considering how communications will be received by other potential defendants or organisations likely to be hit by the same issue with whom common cause can be made, and other potential claimants, especially in class-action suits. It should also be considered how the communications will be received by government, regulators and politicians who have a close interest in what happens to the company and/or its employees or shareholders.

There are then, of course, the traditional media to consider, as well as bloggers, tweeters and others who are active online.

The message. Each of the target audiences will have different needs for different types of information (see above). However, all messaging should be tailored from a core set of statements about the dispute that form the basis of the company's position on the matter. Shareholders, for example, will require a different emphasis to regulators, the government or employees. This information needs to be provided in a way that reflects their different areas of interest.

It can be helpful to design a detailed spreadsheet to build a clear picture on how information is released, to and by whom, and in what order. Audiences can be arranged by category, with responsibility for delivery of information assigned to an individual, and the timing also indicated.

It is generally preferable for internal audiences to have appropriate information first, or at least simultaneously. Employees can be a company's best champions and they are the ones who have to face the clients and customers of the business who may be asking questions about the dispute. If employees are treated with openness and respect, they will tend to support the company.

With respect to the portrayal of the case itself, there are classic themes or media narratives that draw the greatest amount of attention and can be presented by claimants, especially in class actions, seeking to publicise their cause effectively (for example, themes such as David v Goliath, human v faceless, "champion of the people", or betrayed trust).

These themes can attract considerable attention from the media and can be difficult to counter unless the opponent puts time and effort into developing a defensive position that has an equal or greater resonance.

Methods of communication. We live in an online world. Advocacy and special interest groups can easily build well-resourced websites, blogs and Facebook groups and create rapid means of communication with their target audiences through email, text messages and tweets. Chat rooms and viral email campaigns create online forums for discussion and co-ordinate direct action, as well as give a central place for opponents to gather.

However, this transparency and ease of mobilising allies can also benefit a company in dispute. Corporate websites can equally become depositories of useful information to support litigation public relations. Subject to court rules and the relevant jurisdictional constraints, evidence, briefing papers, press coverage, FAQs and other materials relevant to a dispute can be published on the website, providing those interested in the dispute with as much information as they require.

Corporate websites enable a degree of openness and transparency that was inconceivable even a decade ago. Online activity can now be monitored and, when handled with appropriate care and sensitivity, used as a venue for productive debate and placement of rebuttal messages. But it is naïve to think that just publishing information on the website means that the communications job is done. There are plenty of other avenues available to get a company's message out into the world (see box 'Alternative communications').

Clearance procedures.Materials generated by the communications team should be reviewed by the wider group assembled to deal with the issue to ensure that the materials do not expose the company to unnecessary additional risk. Only those people who directly understand what is going on and have the necessary authority to take decisions should be involved.

All aspects of the dispute need to be kept under regular review. Communications materials must be updated and amended to take account of developments in the dispute and, if appropriate, the wider world.

For example, there may be other cases on a similar issue that reach a conclusion before the company's own case, and those outcomes are worth factoring into the communications strategy. The production, amendment and approval of materials should be managed carefully. Legal counsel must always be copied in on email traffic regarding draft documents, which should always be marked as "legally privileged and confidential".

External and internal resources. A dispute can take up considerable time and be a significant drain on the internal communications team, drawing them away from their daily tasks. Depending on the nature of the dispute, its projected duration and importance to the business, it may be worth engaging external communications experts who have experience of managing such disputes.

If external communications advisers are to be used, they need to be part of the strategy-setting process and to form a core part of the team. The company should set up internal liaison points to ensure that any developed strategy is assessed for consistency with the brand and other corporate communications.

Internal resources also play an important role in helping to handle the communications aspects of disputes; they are often better placed to deal with various personalities and have a depth of knowledge and expertise about the organisation as a whole. Additionally, the internal people are the likely first port of call for enquiries from the outside world. For example, the internal public relations team is likely to be the first line of response, which means that they need to be briefed on how to handle the media.

Other considerations

Beyond the key elements, there are other practical issues that must be considered when compiling a strategy to respond to a dispute:

Timetable. The communications timetable and legal timetable go hand-in-hand. A consolidated timetable, especially with long-running litigation over a period of years, will allow the communications team to choose a planned, sensible strategy that is designed to create the best commercial impact. The communications team needs to be aware of the legal deadlines and critical dates to ensure that they can plan around them to maximise or minimise the impact. Briefing materials delivered too late, or communications personnel caught unawares by a hearing or judgment date, give the outside world the impression of a chaotic organisation struggling to cope with an issue.

Costs. Each element of the communications strategy, including the legal element, should be costed out. It may not be possible to give an exact figure, but it is important to assess certain areas so that a commercial view can be taken on the cost effectiveness of possible strategies. In addition, it is likely that a large proportion of communications costs may be incurred before a dispute reaches the stage where a claim is issued or received, let alone settled or ruled on.

It is recommended that the cost of external communications advice and materials be budgeted as part of the overall cost of the dispute alongside the legal and other necessary fees. This clarifies the true financial cost of a dispute, rather than have it scattered across several internal departmental budgets.

Jon McLeod is chairman of UK Financial, Corporate and Public Affairs at Weber Shandwick.

Alternative communications

Proactive communication generates results and there are several extremely powerful methods of reaching different audiences (each of these must comply with regulations governing the release of corporate information):

• One-to-one briefings and interviews with journalists, other commentators and regulators.
• Group briefings for the media, analysts and other interest groups.
• Open meetings and forums.
• Infographics to convey the essence of the issues at stake.
• Short film clips and other video material distributed on, for example, YouTube.
• Online chat forums and webcasts for internal and external audiences.
• Blogs, Twitter updates and the use of other social media.
• Text messaging, especially in markets such as India, where text continues to be a dominant channel.