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Rules for Litigation Communications

By Mike Kuczkowski

The first move for anyone facing a lawsuit is to get a good lawyer.

The second move: get a good communications counselor.

In Pao v. Kleiner Perkins, (see The Reputational Costs of Litigation), both sides put significant resources into communications. Pao lunched with reporters from Reuters and re/code. (Note: registration required for access.) The Wall Street Journal took an in-depth look at crisis communications firm Brunswick’s efforts on behalf of Kleiner Perkins. (Ditto.)

I’ve been on both sides of lawsuits, as a reporter and as communications counsel on high-profile cases for law firms and corporations. Here are some keys to success for anyone who provides communications support for a client facing a lawsuit:

  1. Know the narrative: A lawsuit has a narrative arc. A good attorney will craft a strong narrative in his or her opening statement that will pay off during days of testimony and in their closing statement. This narrative will convey key messages that are the soul of a case. The communications team needs to understand that narrative before a case begins and how each day will assemble pieces of that story. It is the communications team’s job to reinforce their side’s version of events as it unfolds and to remind reporters what’s really at stake in the courtroom.
  2. Know the briefs: Even before a jury is convened, media coverage of a lawsuit is framed by legal filings and court appearances. Understanding the claims and statements in those briefs is the best way to understand the story media will report. Reviewing a legal filing as it is being filed is critical to being able to answer reporters’ questions.
  3. Know the key players: Who will testify? What will they say? The witnesses in a lawsuit are like the characters in a narrative. It’s important to know who they are, what they will say, and what their testimony will mean to the case.
  4. Understand the trial calendar: Typically, litigators will have a calendar that drives their case including expected witnesses, evidentiary submissions and legal briefs. Knowing that timeline and being open about expectations with members of the media who are covering a trial helps build trust. Trust helps the broader picture of the case from your perspective.
  5. Accept that some days will be better than others. Lawsuits present a fractured, subjective picture of events. Witnesses take the stand and tell a part of a story. This means that any news coverage that reflects the events of a given day will be highly biased, based on the events that unfolded in court. You literally will win some and lose some, but on balance you are better served if you can keep reminding reporters and others following the court case of the bigger picture.
  6. Everything is fair game: I’ve had lots of discussions with reporters and attorneys about this, and there’s no way around it—if it happens in open court, it’s fair game for reporters. Witness the fact that “Buddy Fletcher,” Pao’s husband and a hedge fund manager with a history of discrimination lawsuits, was the most frequently cited paired search term with “Ellen Pao.” The implication is that Pao’s motive was tied to Fletcher’s past behavior of filing suits claiming discrimination. Attorneys often present arguments out of earshot of jury members. However, the attorneys need to recognize that there may be media coverage of what they are trying to get a judge to allow them to say
  7. The jury itself is fair game: As a reporter, I used to hang around the courtroom after verdicts and seek to interview members of a jury to better understand why they voted as they did. These insights are often surprising, and may prove damning as in the case of Pao juror Steve Sammut. Summut has given a number of interviews about the case to several media outlets. Sammut says Kleiner should “be punished” despite being found not guilty of the specific charges.
  8. Set expectations and deliver: There’s an adage about the value of repetition in writing: tell them what you’re going to tell them, tell them, tell them what you told them. The same approach applies to litigation communications. Reporters are busy people and their readers have short attention spans. If you can lay out an anticipated timeline for both audiences then highlight the ways in which that timeline is playing out.
  9. Be a resource: There can be pressure, from attorneys or clients, to obfuscate certain facts or try to “spin” what happens in court. Don’t do it. Tell people what happened. Explain it as best you can. Note when a witness said something that was at odds with their deposition Explain why an attorney who has been extremely animated in court felt that a witness’s testimony was inconsistent with the facts. Being a resource for facts will only help you and your client get a fair hearing.
  10. Expect boredom: The courtroom bears little relation to a Perry Mason episode. Even titillating details often become snore-worthy when they are repeated over and over. Most court cases involve days and days of drudgery.
  11. Expect the unusual: Occasionally, there will be moments of actual courtroom drama and when they happen it may well be that the litigation communications team is the only team that truly understands what has happened. Being a resource to reporters to explain what’s going on and why what just happened is important.
  12. Be ready: When a verdict comes in, the machinery of media coverage kicks into action. You have to have a clear plan and you have to be able to move fast to deliver your side of the story.

Throughout all of this, it’s vital that there be a collaborative working relationship between the legal team and the communications team. Together you can navigate the complexities of a lawsuit and execute your roles effectively.

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