Page 58 - MASTER COPY LEADERS BOOK 9editedJKK (24)_Neat
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Leaders in Legal Business
environment, such situations are getting harder to imagine. Risk looms no matter what position you espouse, no
matter what products and services you purvey. Optimal litigation communications must therefore always include
the forecasting of future risk to client brands and bottom lines.
Just ask the folks at Uber how litigation can blindside even the most visionary business. It is no small
irony that Uber seemed unprepared to effectively communicate as a spate of disputes grabbed headlines, including
a consumer protection lawsuit alleging the company misleads consumers about safety and overcharges them, as
well as a class action filed by Uber drivers demanding reimbursement for expenses, including tips, they were
promised but never received.
It is likewise ironic that a company that soared to a $40 billion valuation was simultaneously slow to arm
itself with a team of lawyers and communicators free to function in crisis and litigation capacities. It is ironic too
that a company so far in advance on the technology front apparently failed to read the digital tea leaves in order
to comprehensively assess its imminent exposure online as well as off.
Proven Methods
The brief review above of Shaun McCutcheon’s historic case underscores many best practices: the need
to control your own narrative; to assiduously monitor digital media in order to clairvoyantly assess the dangers
ahead, as well as the themes and tone of the online discussion that will inevitably ensue; to cast the client in as
personally sympathetic a light as possible; to take proactive steps to ensure that your points and positions dominate
the search engines; and to continue to buttress (or remediate) client reputations after cases are resolved.
To be sure, in recent years we have seen no end of diverse high-profile cases, the lessons of which
reinforce and add to this list of best practices. The digital media are still evolving, after all, and the art of litigation
communications evolves in tandem. That said, the following suggestions will hopefully impart a more specific
sense of the strategic and tactical weapons that lawyers, no less than communications specialists, now wield to
protect client fortresses under public siege.
Make the complex simple. If juries in courts of law need things neatly broken down, how much more so
do the millions of stakeholders in the Court of Public Opinion where jurors are not vetted for bias,
education, background, etc. The intellectual property bar may have a head start here, as simplification
has always been key to their trial successes.
Always be mindful of the visuals that either advance or undermine your client’s position. Pictures are
emotional and, proverbially, immensely more powerful and persuasive than words. A preponderance of
research also tells us that visuals exponentially outpace written content on search engines. By relying on
visuals as much as possible, you buttress the corollary goals of simplifying the message and dominating
the Internet.
Look for appropriate opportunities to vilify the opposition, directly or indirectly. When Rosie O’Donnell
began her defense against a lawsuit brought by her former publisher, the depiction of O’Donnell as an
“uber-bitch” dominated initial press coverage. By the time it was over, her opponent was branded as the
Enron of the publishing industry. Rosie’s lawyers were more than happy to feed the media financials
supporting that stinging metaphor.
Identify disinterested third parties who will be able and willing to go public in support of your position.
Wherever possible, ensure your advocates maintain a wide enough social network to influence the digital
narrative. Their recruitment should actually begin even before the lawsuit or crisis occurs. The saying is,
“know ‘em before you need ‘em.”
Watch for divisions in your own ranks. The best qualified communications specialists and lawyers may
think very differently about what public outreach is appropriate and how it should be conducted.
Presumably, there will be a compromise position whenever these professional teams diverge. As lawyers,
you need to stay open to what a robust communications strategy is intended to achieve outside the
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environment, such situations are getting harder to imagine. Risk looms no matter what position you espouse, no
matter what products and services you purvey. Optimal litigation communications must therefore always include
the forecasting of future risk to client brands and bottom lines.
Just ask the folks at Uber how litigation can blindside even the most visionary business. It is no small
irony that Uber seemed unprepared to effectively communicate as a spate of disputes grabbed headlines, including
a consumer protection lawsuit alleging the company misleads consumers about safety and overcharges them, as
well as a class action filed by Uber drivers demanding reimbursement for expenses, including tips, they were
promised but never received.
It is likewise ironic that a company that soared to a $40 billion valuation was simultaneously slow to arm
itself with a team of lawyers and communicators free to function in crisis and litigation capacities. It is ironic too
that a company so far in advance on the technology front apparently failed to read the digital tea leaves in order
to comprehensively assess its imminent exposure online as well as off.
Proven Methods
The brief review above of Shaun McCutcheon’s historic case underscores many best practices: the need
to control your own narrative; to assiduously monitor digital media in order to clairvoyantly assess the dangers
ahead, as well as the themes and tone of the online discussion that will inevitably ensue; to cast the client in as
personally sympathetic a light as possible; to take proactive steps to ensure that your points and positions dominate
the search engines; and to continue to buttress (or remediate) client reputations after cases are resolved.
To be sure, in recent years we have seen no end of diverse high-profile cases, the lessons of which
reinforce and add to this list of best practices. The digital media are still evolving, after all, and the art of litigation
communications evolves in tandem. That said, the following suggestions will hopefully impart a more specific
sense of the strategic and tactical weapons that lawyers, no less than communications specialists, now wield to
protect client fortresses under public siege.
Make the complex simple. If juries in courts of law need things neatly broken down, how much more so
do the millions of stakeholders in the Court of Public Opinion where jurors are not vetted for bias,
education, background, etc. The intellectual property bar may have a head start here, as simplification
has always been key to their trial successes.
Always be mindful of the visuals that either advance or undermine your client’s position. Pictures are
emotional and, proverbially, immensely more powerful and persuasive than words. A preponderance of
research also tells us that visuals exponentially outpace written content on search engines. By relying on
visuals as much as possible, you buttress the corollary goals of simplifying the message and dominating
the Internet.
Look for appropriate opportunities to vilify the opposition, directly or indirectly. When Rosie O’Donnell
began her defense against a lawsuit brought by her former publisher, the depiction of O’Donnell as an
“uber-bitch” dominated initial press coverage. By the time it was over, her opponent was branded as the
Enron of the publishing industry. Rosie’s lawyers were more than happy to feed the media financials
supporting that stinging metaphor.
Identify disinterested third parties who will be able and willing to go public in support of your position.
Wherever possible, ensure your advocates maintain a wide enough social network to influence the digital
narrative. Their recruitment should actually begin even before the lawsuit or crisis occurs. The saying is,
“know ‘em before you need ‘em.”
Watch for divisions in your own ranks. The best qualified communications specialists and lawyers may
think very differently about what public outreach is appropriate and how it should be conducted.
Presumably, there will be a compromise position whenever these professional teams diverge. As lawyers,
you need to stay open to what a robust communications strategy is intended to achieve outside the
51
