4 PR Pointers When Your Case Is In The News
By Nathan Burchfiel and Ryan June
This article was first published in Law360’s Expert Analysis Section in 2024.
The presumption of innocence is a bedrock principle of justice dating back to at least the sixth century.
It is reflected in the holy texts of major world religions. It is explicitly enshrined in documents such as the Universal Declaration of Human Rights. It is a significant theme of the U.S. Constitution. And it informs defendants' legal strategies in all kinds of lawsuits.
But lawyers, beware. There is one important court where jurors do not embrace the concept of "innocent until proven guilty": the court of public opinion.
It is no secret the public loves a scandal, and there is perhaps no more ready-made scandal than a lawsuit full of juicy accusations. More than ever, media coverage seems to amplify or exaggerate the claims of a lawsuit before any judge or jury has ruled on the truth of those claims.
Further, given the changing media landscape, even just the threat of litigating in the court of public opinion is shifting the traditional prelitigation risk analysis.
Rule 11 of the Federal Rules of Civil Procedure requires that court pleadings be based on actual or likely evidentiary support and nonfrivolous legal arguments, but this requirement does not extend to the newsroom.
And while traditional media may, in some cases, hesitate to pick up untried claims, scandalized narratives have become fuel for unchecked bloggers and even some lawyers who build their own social media following to help drive their practice.
You do not have to look any further than the news headlines to see this alarming trend. According to a review of the LexisNexis news database, the phrase "new lawsuit" was featured in nearly 5,000 headlines by the end of 2023, up from 2,509 in 2022 and just 1,918 in 2021.[1] That is about a 161% increase over just a few years, with no signs of the trend reversing course.
Many of these stories focus on accusations of sexual abuse by celebrities or high-power executives. But the public's consumption of scandals and the proliferation of alternative media mean even smaller entities and average Joes find themselves in the spotlight over a lawsuit they haven't had a chance to defend yet.
The value of media coverage is clear: Slanted stories create intense psychological pressure for the defendant to settle. If the case goes to trial, the public has already been bombarded by headlines highlighting the plaintiff's claims, conditioning them to accept those allegations as fact.
And even if the defendant wins in court or inaccurate information is later corrected, their reputation has still taken a hit. Research shows consumers are more likely to read and remember negative news compared to positive stories.[2]
It is therefore increasingly important for lawyers — especially those representing defendants — to accept the fact that no legal strategy is complete without a complementary public relations strategy. Four key objectives should inform the PR strategy.
1. Don’t let the other side set the public narrative.
"No comment" is the public relations equivalent of a guilty plea. Letting the plaintiffs set the whole public narrative cedes the entire PR battle, leaving your client with unchallenged reputational damage, no matter how the legal case ends.
It can also have ramifications for your legal strategy, from tainting the jury pool to creating pressure for an unfavorable settlement.
Being prepared to engage in a strategic, disciplined and positive way will mitigate the reputational damage of premature media coverage.
2. Don't try your case in the court of public opinion.
In a court of law, the scales of justice are supposed to be balanced to ensure both sides are heard and a fair judgment is reached. In the modern court of public opinion, the scales are weighted heavily against defendants — especially defendants perceived as having the power in a relationship.
While you do your best to prevent the other side from setting the public narrative, resist the urge to try your case in a kangaroo court. Share enough to blunt the impact of coverage, but not so much that you give outside observers more to talk about or tip your hand on your legal strategy.
Here, an effective lawyer should feel the tension between the American Bar Association's Model Rule of Professional Conduct 1.3, Comment 1, which advises lawyers to "act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf," and Model Rule 2.1's requirement that lawyers "exercise independent professional judgment and render candid advice." This may include taking into account other considerations relevant to the client's situation, "such as moral, economic, social and political factors."
Although the lawyer's role as advocate and charge to be zealous may pull in the direction of full disclosure, lawyers are not zealots. And in their role as advisers, lawyers should consider that a client's reputation or emotional well-being, the integrity of the legal process, or other social or moral considerations all might weigh in favor of a measured PR approach.
3. Engage with your communications counterparts as allies, not enemies.
Most crisis response teams will include leaders representing a wide range of disciplines, including legal counsel responsible for limiting legal risk and communications professionals responsible for limiting reputational damage. A successful crisis response often requires striking a balance between competing priorities, and it's much easier to find common ground when you trust your colleagues.
For example, the legal counsel may advocate for withholding the findings of an internal investigation to maintain privilege, while the communications professional may argue for greater transparency to show key stakeholders that the organization is taking the matter seriously and responding well.
In the increasingly volatile media climate, both leaders will have to give ground, with the legal counsel accepting some legal risk to mitigate reputational damage, and the communications professional accepting some reputational harm to mitigate legal exposure.
Striking this delicate balance requires open, ego-free discussion, and a level of trust and mutual respect that cannot be manufactured.
4. Plan ahead to avoid being caught flat-footed.
An unexpected request for comment from a reporter can leave the response team scrambling to figure out how — or whether — to engage. Anticipating the need for responsive PR and incorporating proactive communications planning into the earliest stages of a case will help alleviate this pressure.
This includes answering foundational questions about the client's media posture, e.g., whether they are telling a story proactively or preparing to respond only if asked; where the client falls on the spectrum between risk mitigation and transparency; and who will be responsible for engaging with the media if necessary.
This planning process should also address the creation — and legal vetting — of communications collateral, including a statement to provide media if they reach out.
Conclusion
Media coverage of legal news is rapidly evolving. Attorneys can address this challenge head on by first viewing public relations as an increasingly critical component of a broader legal strategy. Otherwise, they might find themselves losing the case in the court of public opinion before it ever makes it to a court of law.
If you have any questions or need counsel on the issues addressed in this article, please contact Ryan June by emailing ryan@ch-llp.com.
[1] Source: Author search of LexisNexis news database for instances of headlines in all news outlets containing the phrase "new lawsuit." Search conducted December 7, 2023. https://advance.lexis.com/api/permalink/a1b27619-6b57-4550-a421-29e208f16201/?context=1519360.
[2] https://www.nature.com/articles/s41562-023-01538-4.