Litigation PR: When to Comment...

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As Sun Tzu said in ‘The Art of War’: “Attack is the secret of defence; defence is the planning of an attack.” The decision whether to be reactive or proactive in your litigation PR strategy is to a great extent a false one in practice. For example, you may decide to keep quiet unless the other side goes on the PR offensive. But all good journalists seek balance in their stories as far as possible, and in particular like to get the view of the other side of a case, as well as encouraging rebuttal comments from those who will be criticised, so you will get an early warning of the impending attack when you or your client are asked to comment. Then you can deploy the full force of your carefully prepared reactive PR strategy, preemptively turning the fire of the attack back on your opponent, either killing their article or shaping it to your own messaging.
Sometimes no comment at all really is the best comment, but usually only when you are either losing hard or winning big. But these can also be the best times to get on the front foot, by getting to the real or metaphorical microphone first and shaping the news agenda to fit your narrative.
As with so many things in today’s world, speed is key. A pithy comment on a judgment will often go far and wide if it is given within minutes of the judgment being handed down. An hour’s delay and the other side will have beaten you to it, or the story will have been written, or in high-profile cases social media may have already gone off-message. Get out ahead and stay ahead in the mainstream media, and monitor it and social media closely, correcting misinformation where the readership and influence of any publication requires it.
The essential ability to act quickly requires briefing your litigation PR agency on the details of the litigation well in advance of the hearing, and having them brief the press as far as possible in advance. Briefing packs setting out the history and background to the case can be created and distributed, provided that these stick to publicly available information, such as background information about the parties and a summary of judgments from analogous cases or previous litigation between the parties. It is also useful to agree key messages and prepare on the record comments in advance for win, lose and draw outcomes. Your PR should also invite key journalists to the hearing and sit discreetly in the back row of the courtroom with journalists, ready to brief them further on background, as well as on the key points which reinforce your messages from their own contemporaneous notes of what was said in the proceedings. You should also ensure that transcriptions of the hearing are provided to your key journalists as soon as possible on the day of the hearing, together with the key highlights and quotes for your case. To have the best possible control over this situation, your PR strategy can and often should inform the tone and order of your pleadings, and even your choice of advocate.
Beyond this, PR can also assist with witness selection and preparation, as well as the strategic development of private investigations and thought-leadership campaigns, which can be deployed and promoted to shape public opinion.

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