Page 56 - MASTER COPY LEADERS BOOK 9editedJKK (24)_Neat
P. 56
Leaders in Legal Business
In this context, the art of litigation communications has become far more sophisticated in recent years, if
for no other reason than because the plaintiffs’ bar has mastered all of the techniques needed to render the costs
of inaction untenable. On the one hand, the practitioners of this art on behalf of the defense are keenly sensitive
to what cannot be said in public, whether because a gag order is in place or because even a seemingly innocuous
comment may tip off the adversary as to their strategy. It is also an unpleasant fact of life, but a fact of life
nonetheless, that plaintiffs usually have more leeway to shoot from the hip in their public pronouncements than
the defense.
On the other hand, there is a wealth of appropriate best practices to ensure that, irrespective of the
inevitable constraints, clients are protected in the Court of Public Opinion — their exposure limited to the greatest
extent possible, and their brands defended if not bullet-proofed. There are best practices before a case is filed,
while it is being litigated, and — as a strategy to either leverage a win or mitigate defeat — after the case is
officially resolved.
Those lawyers who can aggressively apply such strategies will be the beneficiaries in their own markets.
If they started off by effectively using communications to get the work, they must now be open to — and, in fact,
encourage if not insist on — having conversations with their clients about using communications to preserve the
brand value of the business as well as to win in court.
I well remember meeting with a litigator and his client during the largest environmental disaster of the
decade. The client was only a third party to the incident that caused the crisis and yet faced potentially disastrous
exposure. Before a gathered host of senior global managers, government relations specialists, investor relations
specialists, and communications consultants, the litigator ably reviewed every area of specific legal liability: class
actions, regulatory actions, shareholder issues, state and federal exposure, you name it.
When he finished, he paused and said, “Now, tell me why I’m stupid.”
It was a challenging question from a man who knew, perhaps better than the client, that something more
than legal exposure loomed ahead. He was welcoming the assembled experts from the different disciplines to
openly discuss the gamut of brand-related issues and consider if there were any that trumped the legal exposures.
He was also making an implicit, and indispensable, promise: that this crisis required true team effort; that he, the
lawyer, would learn from and never, ever glibly dismiss the non-legal concerns percolating outside the court of
law or negotiating table. It is only in the context of such team-building that strategies and tactics rise to the level
of best practices.
Let’s take a look at a recent case that eloquently underscores the point. It is a case that wended its way
through lower courts and the corridors of political power, local and federal — winding up, finally, in the Supreme
Court of the United States.
Control the Narrative
Shaun McCutcheon is a genial, unassuming engineer in Alabama who feels passionately about a specific
issue. He strongly opposes aggregate limits on campaign financing. In other words, if he wants to contribute
$1,000 to 20 different candidates, why should he be precluded from writing as many checks as he wants — each
check subject to the mandated limits on individual contributions — because some arbitrary maximum total would
be exceeded?
There was absolutely nothing in this position to justify a caricature of McCutcheon as a corporate
henchman or zealot on a mission to concentrate influence in the hands of an oligarchy. He was not interested in
increasing limits on individual contributions or in endorsing the decision reached in Citizens United. To the
contrary, his mind was set instead on enfranchising private citizens like himself to exercise what he believes to
be the right of free speech via multiple allowable political contributions.
Yet when he finally decided to seek legal recourse in striking down the aggregate limits, his adversaries
won the first round in the war to control the message. His case was in danger of being permanently tainted by
extraneous ideological combat. The adversaries included vociferous NGOs with a track record for aggressive
communications, and the benefit of a myriad of ongoing relationships with sympathetic journalists and bloggers
49
In this context, the art of litigation communications has become far more sophisticated in recent years, if
for no other reason than because the plaintiffs’ bar has mastered all of the techniques needed to render the costs
of inaction untenable. On the one hand, the practitioners of this art on behalf of the defense are keenly sensitive
to what cannot be said in public, whether because a gag order is in place or because even a seemingly innocuous
comment may tip off the adversary as to their strategy. It is also an unpleasant fact of life, but a fact of life
nonetheless, that plaintiffs usually have more leeway to shoot from the hip in their public pronouncements than
the defense.
On the other hand, there is a wealth of appropriate best practices to ensure that, irrespective of the
inevitable constraints, clients are protected in the Court of Public Opinion — their exposure limited to the greatest
extent possible, and their brands defended if not bullet-proofed. There are best practices before a case is filed,
while it is being litigated, and — as a strategy to either leverage a win or mitigate defeat — after the case is
officially resolved.
Those lawyers who can aggressively apply such strategies will be the beneficiaries in their own markets.
If they started off by effectively using communications to get the work, they must now be open to — and, in fact,
encourage if not insist on — having conversations with their clients about using communications to preserve the
brand value of the business as well as to win in court.
I well remember meeting with a litigator and his client during the largest environmental disaster of the
decade. The client was only a third party to the incident that caused the crisis and yet faced potentially disastrous
exposure. Before a gathered host of senior global managers, government relations specialists, investor relations
specialists, and communications consultants, the litigator ably reviewed every area of specific legal liability: class
actions, regulatory actions, shareholder issues, state and federal exposure, you name it.
When he finished, he paused and said, “Now, tell me why I’m stupid.”
It was a challenging question from a man who knew, perhaps better than the client, that something more
than legal exposure loomed ahead. He was welcoming the assembled experts from the different disciplines to
openly discuss the gamut of brand-related issues and consider if there were any that trumped the legal exposures.
He was also making an implicit, and indispensable, promise: that this crisis required true team effort; that he, the
lawyer, would learn from and never, ever glibly dismiss the non-legal concerns percolating outside the court of
law or negotiating table. It is only in the context of such team-building that strategies and tactics rise to the level
of best practices.
Let’s take a look at a recent case that eloquently underscores the point. It is a case that wended its way
through lower courts and the corridors of political power, local and federal — winding up, finally, in the Supreme
Court of the United States.
Control the Narrative
Shaun McCutcheon is a genial, unassuming engineer in Alabama who feels passionately about a specific
issue. He strongly opposes aggregate limits on campaign financing. In other words, if he wants to contribute
$1,000 to 20 different candidates, why should he be precluded from writing as many checks as he wants — each
check subject to the mandated limits on individual contributions — because some arbitrary maximum total would
be exceeded?
There was absolutely nothing in this position to justify a caricature of McCutcheon as a corporate
henchman or zealot on a mission to concentrate influence in the hands of an oligarchy. He was not interested in
increasing limits on individual contributions or in endorsing the decision reached in Citizens United. To the
contrary, his mind was set instead on enfranchising private citizens like himself to exercise what he believes to
be the right of free speech via multiple allowable political contributions.
Yet when he finally decided to seek legal recourse in striking down the aggregate limits, his adversaries
won the first round in the war to control the message. His case was in danger of being permanently tainted by
extraneous ideological combat. The adversaries included vociferous NGOs with a track record for aggressive
communications, and the benefit of a myriad of ongoing relationships with sympathetic journalists and bloggers
49
