Adapting Litigation Strategies for Today’s Reality

It has long been the case that the court of public opinion can affect an organization’s reputation and ongoing business prospects as much as actual court proceedings.

Now, in the tumultuous COVID-19 business environment, the role of communications in supporting a legal strategy has taken on an outsized importance, as every enterprise’s key stakeholders seek assurance, information, and empathy on all fronts. Businesses and their legal counsel must navigate rapidly emerging legal issues – from restructuring and class action lawsuits to regulatory investigations and contractual disputes – and take even greater care in crafting public statements, internal announcements, and litigation-related filings that could attract media interest.

At the same time, law firms are going through an unanticipated transition. Many top-tier firms have initiated furloughs and layoffs in certain practices – while firms focused on restructuring and M&A are growing quickly to meet current and projected need for their services. To best position any litigation in such a fraught landscape, here are a few key considerations when developing communications strategy to support a legal position:

Tone is Critical: All messaging in court filings must be aligned with the times and with the substance and tone of other corporate messaging. This may mean adjusting certain assertions and language that may be read as insensitive in light of the pandemic and its dire health and economic impacts on individuals and so

ciety in general. If business goals or corporate marketing and other outreach strategies have been altered due to COVID-19, any legal filings should reflect updated corporate messaging as appropriate – or at least not contradict it.

Written Words Matter: As many legal proceedings – including, potentially, elements of some trials – are conducted via remote video conference rather than in-person events, judges are relying more heavily on written submissions than ever before. It is always best practice to draft legal filings that convey your position in a manner that is compelling, clear and user-friendly to reporters. But it is absolutely critical when written submissions may entirely replace witness testimony or other opportunities to present your argument or rationale for a legal position.

Maintain Privilege and Confidentiality: During this time of heavier-than-usual reliance on written communications, ensu

re that all relevant materials and correspondence with your communications counsel are appropriately marked to preserve privilege. Additionally, given the greater numbers of employees working remotely on less secure Wi-Fi connections, assume that confidential documents and email may leak, and draft and distribute documents with appropriate amounts of care.

Plan for Outsize Media Attention: While non–pandemic related business topics are garnering less media attention, companies facing litigation related in any way to the pandemic – employee litigation or a class action lawsuit over a company’s safety practices, as examples, or even dry contract or insurance disputes – should prepare for outsize media interest and coverage. When speaking with reporters on these legal matters, be prepared to provide authoritative, third-party sources who can support your position. These resources will be even more likely to be featured in articles due to the fact that reporters’ ability to develop new third-party sources has also been constrained.

Plan, Yet Be Nimble: Effective litigation communications requires anticipating next steps in the legal process as well as oth

er unrelated corporate issues that may attract increased scrutiny from regulators, the media, and the public. For these expected developments, businesses should prepare appropriate messaging and communications materials in advance. But at a time when the future is so uncertain and business goals, tactics, and strategies could change dramatically overnight, enterprises must also be able to nimbly respond to new concerns and developments as they arise. Moreover, real-time coordination and cooperation between operations, legal, and communications teams will be paramount for the foreseeable future.

We are witnessing a rapid and fundamental shift in the litigation landscape, and legal disputes on the horizon are unprecedented in number and scope. Even law firms themselves are having to swiftly respond to financial and business pressures while meeting the urgent needs of clients. At the same time, journalists, customers, government officials, and the public have ubiquitous and instant access to information. Communications strategy surrounding litigation in this strange new time could significantly shape a company’s reputation at a pivotal moment, and, to be effective, must incorporate the ways in which audiences, information sharing, court procedures, and the news cycle are changing.

This piece originally appeared on the website for our New York counterpart, KARV Communications.