In The Court of Public Opinion
Winning Your Case with Public Relations
By James F. Haggerty
John & Wiley Sons
ISBN: 0-471-30742-4
Chapter One
Welcome to the
Hotseat: This Is
Litigation PR
"Oh sure, litigation PR. That's an interesting niche you've carved out
for yourself." This from a technology reporter at the New York Times
as we poured over some legal documents relating to an Internet lawsuit
I was working on.
It seems litigation communications is on many lips these days-but
there's a great deal of misunderstanding among businesspeople and
their lawyers as to what the term really means. In this chapter, we'll
consider the use (and misuse) of communications as a means of advancing
your position in legal disputes. Along the way, we'll look at the
difference between litigation PR and other forms of crisis communications.
We'll also look at the birth of the discipline, less than 20 years
ago. Finally, we'll examine why some of the usual rules of public relations
don't apply, using one of 2001's top tabloid stories-the divorce
case of former New York City Mayor Rudy Giuliani-as an example.
What is litigation public relations or litigation communications,
as it's also known? To some, it's a press conference
on the courthouse steps, or Alan Dershowitz arguing with Geraldo
Rivera on late-night cable over the guilt or innocence of O. J. Simpson,
or Microsoft's daily briefings at its recent antitrust trial.
In truth, it is usually none of these things. Each scenario occasionally
comes up in the practice of litigation communications, but
only in isolated instances. The late night shoutfests in front of
Chris Matthews or Sean Hannity, the impromptu courthouse press
conference, the mass-produced and distributed press release announcing
the commencement of a lawsuit-these are only a part of
what we do, and a small part at that, especially for the classic "business"
lawsuit, which is more often fought in the pages of the relevant
business and trade magazines than on Nightline. In fact, for
reasons that will become clear in the course of this book, press conferences
and other "in-your-face" approaches are precisely the
types of tactics I don't recommend in most circumstances.
Which brings me back to my original question-What is litigation
PR? Well here's the textbook definition:
Litigation PR can best be defined as managing the communications
process during the course of any legal dispute or adjudicatory
proceeding so as to affect the outcome or its impact on the client's
overall reputation.
Now that's a bit dry. So to illustrate the power of public relations
in influencing the course of litigation, let's consider the following
example, not from my work as a consultant to lawyers and their
clients in high-profile court cases, but from my experience as an attorney.
It is a "small" case, which further illustrates that using the
media to influence the course of legal proceedings is not necessarily
the domain of the Microsofts or O. J. Simpsons of the world, but anyone
whose case has the potential to bring them into the public eye.
An appeal to reputation
Let me be clear: Although I am an attorney licensed in New York and
Florida, I've rarely practiced law. For about six months after law
school, I did some legal work in an insurance defense firm in
Florida, writing briefs and motions relating to auto accidents. Anyone
who knows me and knows this type of work will understand why
I'm in the communications field today. The usual case went like this:
Car A hits Car B. Whose insurance covers first? Whose insurance
covers second? I lasted about six months before I had to give it up.
(I don't mean, by the way, to offend all of the very talented insurance
defense attorneys out there. It just wasn't for me.)
These days, I tell clients that law is my hobby, and I generally
only get involved in cases as a lawyer if it involves an issue of particular
interest to me.
This was one of those cases. John was a five-year-old boy who
walked with a brace on his left leg. In late August, just before the
beginning of John's first day in kindergarten, his mother called me.
John needed a new leg brace to begin school. The old one, affixed
to a heavy brown shoe, was worn, even rusted at points, and had a
noticeable squeak when John walked. It was barely functioning and
clearly unacceptable for a child just beginning the educational process.
Kindergarten, as we all know, is the first great leap into socialization
for a boy John's age, and his mother was worried that if he
went to school with a rickety leg brace-or even worse, with no leg
brace at all-it would exacerbate what was already an anxious situation
for the child. John's mother had already been to the orthopedist:
The new leg brace was measured, fitted, and ready to go.
But here's the problem: John's father had recently switched jobs
and his health insurance was refusing to cover the cost of the new leg
brace. He'd been at the job for too short a time, they told him; thus,
coverage for special services hadn't kicked in yet (a questionable
reading of the health insurance contract, by the way). Come back in
six months, they said. It was days until school was to begin, and
John's parents didn't have the money to buy the leg brace outright.
In my capacity as attorney, I spoke to the claims representative.
"Sorry," he said, "rules are rules." If John and his family didn't like
it, they could appeal the decision, and if they didn't like the results
of the appeal, they could go to court. I figured John would be a college
graduate before we ever saw a final decision.
I next wrote a letter to the General Counsel of the insurance
company, explaining the situation and asking for his intercession
to waive the appeal requirement-I was relatively sure insurance
companies could do this under the right circumstances. I mentioned
in the letter that it probably wouldn't look good for the company
to be denying a child's claim on a technicality just before he
started school. No response. It was Wednesday at that point, and
kindergarten was set to begin the following Tuesday.
On Thursday morning, I finally was able to get the General
Counsel for the insurance company on the phone. I described the
situation and how unseemly it was that this child should be starting
school in a few days without the leg brace that the insurance company
would approve under any other circumstance. Wasn't there
anything he could do?
It turned out there was a procedure for overriding the decision
on coverage without going through the normal appeals process. He
just wasn't going to do it.
"Why?" I asked.
He said something along the lines of: "Because I don't think it's
warranted in this situation." I can't remember exactly, because at
this point, I was getting pretty angry.
We argued back and forth a while longer, and then-just before
hanging up-I pulled my trump card. I said, "Well let me tell
you this: That child is going to start kindergarten on Tuesday, and
he's going to be accompanied by a new leg brace or a television
crew." I hung up.
John's mother called me again on Friday morning-this time to
let me know that the insurance company had reconsidered her
claim, approved it, and that the leg brace would be delivered later
that afternoon.
This is the power of litigation PR.
Interestingly, I was watching 60 Minutes recently and saw a similar
scenario play out in a segment on experimental brain tumor treatment
pioneered by Duke University doctor Henry Friedman. The
insurance company refused to cover the experimental treatment-and
did so, unfortunately for them, with Ed Bradley of 60 Minutes
in the room:
BRADLEY: [Voiceover] Thirteen-year-old Daniel Glancey has
a fast-growing brain tumor, and Dr. Friedman believes that
experimental therapy is the only chance he has to survive.
So Dr. Friedman calls the family's insurance companies and
threatens them with negative media exposure if they don't
give in.
FRIEDMAN: [On telephone] Everybody has to understand what
you're saying, basically, means you won't treat cancer-treatable
cancer on your policies. I think this is something that people who
purchase insurance from your group really must be aware of.
UNIDENTIFIED MAN: [On telephone] We're not going to participate
in an argument through the press.
FRIEDMAN: [On telephone] Well, belatedly, I'll tell you that
you're already involved with the press as we speak.
[Later that day] The question was posed, and I posed it: "Who
would like to receive the call from Mr. Ed Bradley to discuss this
for a forthcoming segment of 60 Minutes?" I don't think they
liked you, because they didn't want to talk to you. But yet that
night, they called back and said it's been approved.
BRADLEY: You enjoy this, don't you?
FRIEDMAN: I enjoy helping my patients. I'm not afraid to mix it
up with anybody to help my patients. I won't break federal or
state laws. I'm not about to commit a crime. But I believe that
showing people the right way to do things and the consequences
to their business of not doing the right things is very appropriate.
Yeah, I enjoy this.
Media's influence on the
course of legal disputes
These examples are not earth-shattering cases, not cases with the
national or worldwide ramifications of a Microsoft antitrust case or
Ronald Perelman divorce. But they highlight the enormous power
of the media to influence the course of legal disputes-and how effective
that power can be if attorneys and clients know exactly
which buttons to push.
These examples also illustrate why communicating during litigation
is not all press conferences on the courthouse steps and end-of-day
summaries of court proceedings on Nightline. The simple
fact is this: Most cases settle. According to R. Lawrence Dessem in
his book Pretrial Litigation: Law, Policy & Practice, less than 10 percent
of lawsuits filed in this country ever see the inside of a courtroom.
That's not counting the untold millions of administrative
cases (cases that are not in a courtroom but before an administrative
body such as the Social Security Administration) and regulatory
investigations (where government regulators-such as those that
deal with Medicare fraud among doctors-begin investigating a
client in anticipation of litigation). Not to mention the many cases
that are settled before a formal action is even filed. Clearly, the
bulk of the legal activity in this country goes on outside the courtroom,
long before a lawsuit ever goes to trial-and the overwhelming
majority of communications counseling in litigation occurs
outside the courtroom as well.
Thus, litigation PR more often than not involves managing the
communications aspects of litigation well before a case is ever adjudicated.
And while its impact can be enormous, admittedly,
sometimes there's precious little you can do. Several years ago, for
example, we were approached by a major national restaurant
chain that was being threatened with a lawsuit by several employees
for racial discrimination. Leading the plaintiffs in the case
was the popular pastor of a major Southern church. The client
had clearly done some things wrong, so we worked with them to
admit publicly that mistakes had been made, that the company
was doing its best to resolve the issues, but that they would not
allow themselves to be the victim of frivolous lawsuits. They were
able to settle the matter quickly and amicably, and their reputation
survived relatively intact.
About a year later, they called again. There was another case
about to be filed on similar racial discrimination grounds in another
Southern city. The case itself was highly questionable, but in
reviewing the new facts, it became clear that the company's message
of change hadn't been entirely sincere. Little had been done
to rectify some of the real problems with the company's behavior.
The language that accompanied the prior settlement seemed nothing
more than "lip-service," designed to put the episode behind
them so that they could get back to business as usual.
What is the best way, we were asked, to resolve the matter without
creating a media firestorm that would quickly spread nationally
and damage the restaurant's reputation forever?
My answer was this: Get the correct spelling of the plaintiff's
name for the check.
Sometimes the best solution for a company, from a reputation
standpoint, is to settle the matter quickly and quietly well before it
ever reaches the courthouse or the media. Particularly when it becomes
obvious that, from a public opinion standpoint, the case is a
sure-fire loser.
Birth of a new discipline
I want an article as soon as possible in the Globe-"St. Cat's,
neighborhood giant, serving the community, etcetera"-they've
got it in the files. And I want something in the Herald Monday
morning-"Our gallant doctors ..." eh? Be inventive!
And television ... we've got to have television. Friedman,
since you're still with us, why don't you have a word with, ah your
friend at GBH, hmmm?
-James Mason in the 1982 movie The Verdict, playing an
unscrupulous defense lawyer fending off a medical
malpractice lawsuit against a prestigious Boston hospital.
Ah, if only life were this easy-I could take more vacations.
Obviously, this is not the way things work, and in an otherwise
wonderful movie you get a bit of a skewed perspective of how easy it
is to influence the media in the course of a lawsuit-in this mythical
case, a personal injury suit by a brain-damaged former patient
of the venerable old-line hospital St. Catherine's. But even if James
Mason is your lawyer, things are never that easy-not in 1982, and
certainly not now.
What is interesting about the quote is this: It is no coincidence
that this quote was from a movie made in the early 1980s. It was just
about that time that public relations techniques first started being
used in major litigation, and many of the techniques that are now
considered de rigueur were just then in the process of being born.
Think about that for a moment. Twenty years. That's how
new communications in the legal context actually is, while the law
itself dates back at least to the time of Hammurabi. Thus, among
most business executives, lawyers-and even public relations
professionals themselves-there's only the vaguest notion of how
the process of using communications works, how it fits into the
overall practice of law, and what parties are really trying to
achieve when they use public relations techniques to manage the
course of litigation.
Continues...
Excerpted from In The Court of Public Opinion
by James F. Haggerty Excerpted by permission.
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JAMES F. HAGGERTY is an attorney and CEO of The PR Consulting Group, a Manhattan-based public relations firm specializing in legal issues and litigation. He has worked on high-profile legal matters for more than fifteen years, including some of the largest cases of their kind in history. Haggerty is admitted to the bars of New York and Florida and studied law at Fordham University in New York and Stetson University in St. Petersburg, Florida (JD). He is a frequent lecturer on media and communications issues, and his writing on the topic has appeared in such publications as the New York Times, the New York Law Journal, the National Law Journal, Law Practice Management, and PR Week. His company is part of the Hyde Park/PR Consulting Group, with offices in New York and Washington, and affiliations worldwide.
