Today’s legal market demands a broad range of business solutions lawyers can provide their clients. A strategic communications plan can prove to be an extremely helpful tool lawyers can provide their clients, in anticipation of or during litigation, or just an overall part of their legal strategy.
Every Company Is A Media Company
Today, every company with a website, blog or social media presence is a media company and anyone with access to a computer, smart phone or tablet, has the potential to damage a company’s reputation. However, at the same time with digital and mobile technology, companies have more opportunities to take their message directly to the consumer, to protect, enhance and elevate their reputation.
For companies such as Domino’s and The BBC, to celebrities and politicians such as Lance Armstrong and Elliott Spitzer, lawsuits today are no longer fought in the courtroom. Cases are being tried in the media, with the potential to damage brands and reputations alike.
Clients Turn To Lawyers As Spokesperson
In general, a lawyer’s job is to represent their clients in a court of law, not in the media, and many are uncomfortable in talking to reporters. However, client’s today are turning to their lawyers not just for legal support, but to help protect their reputation and often speak on their behalf.
“An attorney’s duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client. Just as an attorney may recommend a plea bargain or civil settlement to avoid the adversarial consequences of a possible loss after trial, so too an attorney may take reasonable steps to defend a client’s reputation and reduce the adverse consequences of an indictment, especially in the face of a prosecution deemed unjust or commenced with improper notices. A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charge, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.”
In today’s media saturated environment, where we can share pictures or Tweets from our phone instantaneously with the world, that may even end up on CNN or FOX News, many clients will turn to their lawyer for advice, counsel and a response. So lawyers should have a basic understanding of interacting with the media, on line and off.
Balancing advocacy for clients and legal ethics
The Bar is concerned that attorneys often speak with authority and that whatever they say can help shape public opinion. As a result, a good rule of thumb in talking to the press or in any public arena is to stick to discussing the facts or explaining the process. In making statements to the media during or in anticipation of trial, a lawyer, or their client’s spokesperson, should avoid making any statement that would "have a substantial likelihood of materially prejudicing an adjudicative proceeding."
In other words, “don’t say anything you couldn’t or wouldn’t say in court.” This includes speculations on a criminal defendant’s guilt or innocence, opinions on any participant’s credibility and character, conjecture on why a participant would not submit to examination, and, generally, any information that is not likely to be admissible – Just stick to the facts. For example:
- The claim, offense or defense involved
- Information contained in a public record
- That an investigation of a matter is in progress
- The scheduling or result of any steps in litigation
- Undisputable facts
- A request for assistance in obtaining evidence and information necessary of the investigation
- A warning of danger concerning the behavior of a person involved.
A lawyer, however, may make statements that may be required to protect a client from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement should be limited to such information that is necessary to mitigate the recent adverse publicity.
Crisis + Litigation Communications
The sands have shifted in the practice of law. Gone are the days when clients were only concerned about the legal ramifications of a lawsuit or legal quagmire. Today, clients are often also concerned with how they are judged in the public eye and perceived by their customers, vendors and by their own families.
A litigation communications plan, blends both legal expertise and media savvy, by helping to frame messages during the litigation to help preserve, protect and enhance the reputation of the parties. It also helps to monitor what others are saying about the case and the company and works to control the message, address concerns and build relationships to help the company emerge from the litigation with its reputation intact. An effective litigations communications strategy, works to enhance legal efforts by providing clarity on complex legal issues, before and after litigation. However, the process should start long before a matter goes to trial and even before the firs documents are filed. The goal of litigation communications is to guarantee that the client's public image is completely aligned with the legal team's efforts and strategy, while ensuring the company's message is understood outside the courtroom. As a result, communications experts should be retained early on in the process, to monitor the media, craft the messages for key audiences, respond where and when appropriate and otherwise be involved.
In retaining a public relations professional, it is important that you find someone who understands the interplay between the law and legal process on one side, and the media and public opinion on the other. Managing these complex communications in a timely and efficient manner can play a vital role in the cost-effective mitigation of a crisis or legal matter.
Tips for dealing with the Media
Despite certain rules imposed on lawyers, reporters, journalists and bloggers may contact you based on a case that you are working on or a client that you represent, or perhaps even the issue areas you work in everyday. Alternatively, you may contact them, to help position your client in the public eye or to promote yourself as an expert on an issue that is receiving a lot of attention in the news. Regardless of how a reporter comes to you, in dealing with the media it is important to understand what they want and how you can best work with them.
The media is interested in a story that others want to read, watch or listen to. News is something that is:
- Relevant, and
- Sometimes entertaining.
Reporters will most likely report on stories that are:
- Unusual or unique
- Involve celebrities, kids or dogs and
- General human-interest stories.
When the reporter asks you if he or she can ask you a few questions, try to get a little more information from them. Find out what the reporter wants to know. Depending on when they call, they are most likely on deadline and looking for a quick sound-bite. If you need to, ask if you can call them back and think about what you want to say. Then call them back in a timely manner.
Here are a few more tips in terms of working with the media:
Know why you want to talk to the media -- What do you hope to achieve in talking to the media? Before you talk with a reporter, know what you want to accomplish, even if they catch you by surprise.
Know your audience -- Then understand who your audience is. This will help you craft the appropriate messages that resonate with the right audience.
Know what you want to say – Once you know why you want to approach the media, and who the audience is, know what you want to say. Have a few key messages written out that you want to convey to the reporter and think of a few questions they may ask -- and be ready to respond.
Do your homework – Know what the reporter writes about and covers. Be familiar with their latest story and angle. Go on their website, perhaps they have a blog or check them out on Facebook, Linkedin and Twitter.
What not to do with the Media:
Never say “No Comment” or “Because a lawsuit was filed we cannot comment on active litigation.” Instead say something more general and stick to your messages, or “I can’t tell you that now, but what I can tell you is..."
- Don’t repeat a negative question or phrase
- Stop using jargon or technical lingo
- Try not to go “off the record”
- Never lie
- Don’t attack competitors or sell yourself
During the interview – Think of it as a debate not a conversation, unless you are talking to Stephen Colbert:
- A reporter is using it to gather information or to find a story
- Know your objectives and stick to your key message
- If the reporter gets off message, bridge back to your key message
- Answer only the question asked
- Stick to your messages
Don’t hide anything you don’t want them to find later. When speaking to the media be concise and thorough and tell them everything that you can with in reason. You do not want them finding out information on their own and then confronting you when you are not prepared to answer their questions.
If you don’t know, don’t tell and don’t worry – Don’t panic if you are asked a question during an interview that you do not know the answer to. Be honest and tell them that you do not know the answer but that you would be happy to look into it and get back to them. Never attempt to make something up.
Silence. When being interviewed, once you have made your point do not be intimidated by silence. Silence is not a bad thing during an interview, it’s a tactic used by reporters to get you to talk, in the hopes of getting you to say something that you shouldn’t have.
“Off the record” or “For background only” – As a general rule, if you don’t want it in print then don’t say it. However, an ethical reporter will respect what you are trying to say and will work with to make sure what your saying is accurate. It helps to know the reporters covering the issues you are working on and have a good working relationship with them. It also helps to not be confrontational and to respect them for having a job to do and that you want to work with them in preparing their story.
Timing – Just as a lawyer sticks to deadlines prescribed by the court, reporters have deadlines to keep and times they need to either file stories or air them. You will develop better relationships with a reporter if you are sensitive to their deadlines.
Preparing for an ambush – If a reporter catches you by surprise, stop in your tracks, address the reporters questions (you can be vague if you want), then let them know that you have another commitment and that you will get back to them by their deadline. If a reporter calls by phone take their message, find out what they want and when their deadline is, and get back to them in a timely manner.
Working with the media – It is about relationships.
Corrections -- Don’t be afraid to correct the reporter or ask them to revise their story to be accurate.
Monitor the media – Know what is being said about you, your clients, your firm and your industry.
Anything else? – This is always the last question in any interview, so be prepared to summarize your key messages; say anything that you forgot to say before; or clarify any statement that needs further explanation. s not deserve to be tried.”2
Social Media Tips
Social media is becoming more than a tool for us to stay in touch with our friends or family, it is becoming a new area to look out for our client’s interests and/or a new medium to promote our practice. It also is our opportunity to control the message and to clarify misinformation. However, interacting with those using social media sites, such as Facebook, Twitter, LinkedIn, Pinterest or YouTube, is a little different than working with the traditional media.
Know the influentials – There are millions of people using a variety of social media sites that it is important to know who the influential people are. There are a number of social media sites that you can use to track the influentials.
Monitor the chatter – Once you know who to follow you should monitor the chatter. Listen to the tone of the comments and questions and participate where appropriate. A good way to monitor the media is to create Google Alerts, Twitter feeds or Facebook updates. Even if you don’t join the conversation, be aware of what people are saying about your company on different social media platforms.
Engage the community – Once you are able to gain an understanding of social media and how it works, go ahead and begin to engage the community. However, in using social media one’s credibility is gained through transparency, honesty, relevance and value.
If a crisis ensues, you may not have the time to monitor social media sites and find the right time to engage people on line. Should that be the case, you should be more proactive, reserve the various domain names with your name, your companies name and variations thereof so should something happen, you can go on line and communicate directly to the masses.
The documents you file in court are public documents and subject to FOIA. Don’t be surprised if you see the language from your depositions, motions or others in an article or even on a graphic on television. So, if a reporter asks for a document, it will go along way if you just give it to them but feel free to redact sensitive or privileged information.
Hiring PR Counsel
Lawyers need to understand what is news and how to best communicate that news to the public. If attorneys will not provide such services, then they should build strategic partnerships with public relations firms to help them. To meet the needs of today’s businesses, lawyers will need skilled advice regarding how to position their clients before the media, while legally protecting their clients. Seeking PR counsel is an important aspect of any legal strategy. Even if the issue is a small matter, there is no way we can tell how public opinion can or will shape the outcome of a case. Therefore, in engaging public relations counsel:
- Have the lawyer retain the PR firm as opposed to your client directly, to try to preserve attorney-client privilege.
- The public relations counsel should consult with both the client and attorney at every step of the process.
Once a public relations firm is engaged, they will, depending on the strategy: help with messaging and identify the appropriate media to communicate those messages or even act as your client’s spokesperson. They also should monitor the media and find ways to enhance, protect and further your client’s reputation.