Litigation public relations is a dynamic new addition to legal practice. No major corporate litigation should take place without considering its public relations ramifications. The same goes for high profile criminal cases and celebrity cases.
Strategic communication is useful before litigation gets under way, during the trial process, and after it terminates. Specific audiences may be targeted for discrete purposes, whether it is an external audience (such as the so-called ‘court of public opinion’) or internal ones (such as employees, investors, shareholders, and others with a vested interest in the organization).
Studies show that media coverage influences prospective jurors. Bad publicity can drive down stock prices even as it increases the pressure to settle out of court. It can also ratchet up the stakes of a trial from the perspective of the state. Judges are not immune to the influences of publicity, and neither are lawmakers.
It makes sense, therefore, to attend to strategic mass media communications as an important additional tool in the lawyer’s communication toolbox.
Communication management involves such concerns as when to speak to the press and how to frame one’s message; what media sites are optimal for particular kinds of communications (press releases, websites, advertising, etc.); how much to divulge and how much to hold back. Every act of communication requires a careful assessment of one’s audience. Who are you trying to reach for what purpose? It is helpful to research audience responses. How does a particular audience feel about a given topic? How does the reaction break down according to age, sex, location, political affiliation, etc.?
Understanding the reasons why a particular audience may be inclined to react in a particular way to a particular message is essential both to structuring one’s own message and responding to what others say and show. Meaning comes out of a network of beliefs, hopes, and fears; it is shaped and informed by history, culture, and diverse socio-economic factors. In producing (and controlling or breaking down) specific communications it is essential to understand the separate logics of metaphor, narrative, and visual representation. Each must be understood in a given context before it can be compellingly produced or usefully countered.
Websites, news outlets (including print and television), blogs, and social networking sites such as Facebook, Twitter, and YouTube offer various strategic uses for litigation public relations. For example, consider the lawsuit against Chevron arising from its practices in Ecuador (see CBS’s 60 Minutes’ coverage here), or consider the “mock” Chevron ad on YouTube, or this similarly critical animation.
Or consider the website set up by supporters of the three white Duke lacrosse team players who were prosecuted for allegedly raping a black stripper, escort, and student at North Carolina Central University. The case fell apart and all the charges against the Duke students were subsequently dropped. On February 21, 2008, 38 members of the Duke lacrosse team and several of their parents filed a lawsuit against Duke University, the City of Durham and a number of other defendants for their roles in what has come to be known as the Duke lacrosse scandal. A blog was set up to provide the public with information about the lawsuit. Duke University promptly moved to take it down. Their motion was denied. For more information on the website action, go here. For more on the Duke case generally, go here or here.
Social networking sites also have been used as a platforms for jury selection (see, for example, here and here) and for discovery and legal research.
In short, social networking presents a number of opportunities and challenges for lawyers and judges. For an example of the latter, consider the recently noted problem of jurors using online posts to announce or receive information about pending cases. Such posts may help to reveal a juror’s bias, or prompt a reversal if it turns out that juror has used online sources to undertake his or her own independent investigation of the case.