January 30, 2023

Volume XIII, Number 30


January 30, 2023

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The Court of Public Opinion Has Moved Online – Has Your Litigation Communications Strategy?

If there were any doubts that the digital media age has fundamentally altered the rules of engagement for litigation communications, recent headlines like “Blagovich Judge: No Tweets” surely have put them to rest.

With nearly every age, race and ethnic voter demographic shifting their information gathering habits to socially interconnected communities – largely outside the reach of traditional PR’s media outreach efforts - corporate communicators and litigation teams are learning they must work together to effectively manage the digital dynamics that now drive the news cycle and ultimately determine winners and losers in the court of public opinion.

More than 500 million people are now actively engaged on social networking giant Facebook, spending on average 55 minutes each day within the site; more than 100 million people send out 55 million rapid-fire updates in 140 characters on the micro-blogging site Twitter daily.   Not surprisingly, citizen litigants and plaintiff attorneys are increasingly turning to these social and digital media spaces to recruit for class-actions, message to potential (and even sitting) jurors, and establish the narrative of coverage that will ultimately cross over into the traditional media space as well. 

There are hundreds of class-action recruitment pages on Facebook encouraging the platform’s millions of users to sign up if their cell phone has malfunctioned or if they suffered side-effects after taking a prescription drug. And while product liability and defect issues dominate current online recruiting and messaging efforts, they only scratch the surface of the potential that the online space can have in the court room. Just last month, employees of the drug store chain CVS filed a class-action alleging multiple violations of the Fair Labor Standards Act – and they too are actively seeking support, stories and victims from within the social network confines of Facebook.

Once litigation advances, effective users of the social and digital media space focus their efforts on messaging efforts designed to ensure their story sets the tone of coverage in the online as well as offline mediums that will cover the case and inform those seeking additional information about the legal arguments or the product. 

During trials, juries should be expected to “Google” not only the parties and the issues in play, but the legal teams themselves. Smart litigation teams will have seeded the online space with optimized third-party commentary and issue-focused micro-sites well before the case ever goes to trial to ensure they dominate the messaging landscape.  

Reporters covering the case, and especially local media unfamiliar with the litigation beat, utilize these online resources for content as well – fact-checking and identifying sources often unknowingly from content platforms generated by the litigants. Judges are forced to deal with tweets by jurors and live blogging by trial observers, which are readily accessed by reporters and others seeking information about the case.

The immediacy of digital communications is so breathtaking that, by the time a case if filed and well before arguments are ever heard, the typical corporate litigant has already missed opportunities to seed the online marketplace with key facts, correct misperceptions that are being advanced by the opposition, and focus the lens through which the case will be viewed in both the online and offline space.

Why are companies and their law firms so reluctant to use digital and social media?  In part it is the fear of raising undue visibility to a dispute – but that is true even of traditional media outreach.  More important is that the interface between corporate legal and PR functions simply has not been designed to accommodate the unique demands of communicating digitally in a medium that lives in a 1440 new cycle – one in which literally every minute of every day can drive public perceptions and impact legal outcomes.

It is certainly true that digital media is no panacea.  Just as with television news or print ads or town meetings, it is but one instrument in an integrated and coordinated orchestra of tools that must be used strategically and with the right content, timing and voice. At bet-the-company moments, however, open and rapid engagement via blog posts, tweets, viral videos, Facebook updates, integrated websites, search optimization campaigns and other online venues can be the determining factor in getting or keeping public opinion on your side.  

For litigation and communications teams deciding whether and how to engage, four key questions should be addressed:

  • What are the objectives of your communications effort? This seems simple, but the answers will drive the entire focus of the program. Are you simply monitoring the debate, seeking subtle messaging entry points or willing to fully engage in the discourse to impact its outcome?
  • Who are the key audiences you wish to engage and where do they get their information?  Whom do they find most credible?
  • What are the social channels that are most important for reaching your audiences, and what is already being said about your company and your case?
  • If you are ready to engage, what processes can you put in place to ensure your efforts are timely and reflect the needs of real time media environment every case today now operates in?

Ultimately, the best way to engage digitally in a litigation or crisis situation is to have a presence there before times get tough. Using your peacetime wisely to avoid the necessity of establishing a digital persona under pressure –which will likely prompt consumers to wonder, “Why didn’t I hear from them until they had a problem?” – is a critical first step. 

As we fully embrace the technology that has become so much a part of our own lives – our PDAs, netbooks, iPads and social networks – we must also recognize that successful litigation communications has undergone a similar fundamental evolution. Companies and other litigants who focus only on one-way communication through traditional media, rejecting substantive online dialogue with their targeted audiences, do so at their own peril. 

Copyright © 2023 Burson-Marsteller. All rights reserved. National Law Review, Volume , Number 182

About this Author

Karen Doyne, Managing Director and Co-leader, U.S. Crisis Practice, Burson Marsteller, Law Firm
Managing Director and Co-leader, U.S. Crisis Practice

A recognized industry leader in crisis and litigation communications, Karen Doyne brings clients the benefits of expertise gained through more than 25 years’ experience at global public relations agencies, on Capitol Hill and in the media world. She also provides strategic counsel in public affairs, risk communication and reputation management.  

Ms. Doyne was named by PRWeek magazine as one of the nation’s 22 top crisis counselors, and in 2007 was honored by Washington Women in Public Relations as one of the leading practitioners in the Nation’s Capitol. ...

Dallas Lawrence, Managing Director of Digital Public Affairs, Burson-Marsteller
Managing Director

Dallas Lawrence is a Managing Director of Digital Public Affairs for Burson-Marsteller’s wholly-owned digital communications agency, Proof Integrated Communications. 

Dallas advises companies, organizations, countries and brands on effective solutions for navigating the intersection of online activity and offline impact critical in today’s ever changing digital marketplace.  He provides clients with the benefit of more than a dozen years of experience developing and implementing winning integrated strategic communications and public affairs strategies that bulletproof reputations...