Welcome to the Hot Seat: This Is Litigation PR
| Author | James F. Haggerty |
| Profession | Lawyer |
| Pages | 1-32 |
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CHAPTER ONE
Welcome to the
Hot Seat: This Is
Litigation PR
“Oh sure, litigation PR. That’s an interesting niche you’ve carved out
for yourself.” This was said many years ago by a technology reporter at
the New York Times as we pored over some legal documents relating to
an Internet lawsuit I was working on.
Yet, even after all these years, there’s a great deal of misunderstand-
ing among clients and their lawyers as to what litigation PR or litiga-
tion communications (sometimes “litcom” or the more vague “litigation
support”) really is. In this chapter, we consider the use (and misuse) of
communications as a means of advancing your position in legal disputes.
Along the way, we look at both the similarities and differences between
litigation communications and other forms of crisis communications. We
also look at a landmark case that marks the birth of the discipline about
25 years ago. Finally, we examine why some of the usual rules of public
relations don’t apply, using a particularly tough tabloid tale—the 2001
divorce of then New York City Mayor Rudolph Giuliani—as an example.
What is litigation communications? To some, it’s a press confer-
ence on the courthouse steps, or a Headline News host declaring a
true-crime defendant guilty or innocent, or Jeffrey Toobin arguing
with defense lawyers over the latest Supreme Court ruling.
In truth, most of the time it’s none of these things. Each sce-
nario occasionally comes up in the practice of litigation commu-
nications, but only in isolated instances. The late-night shout fests
in front of Lawrence O’Donnell or Sean Hannity, the impromptu
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In the Court of Public Opinion
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courthouse press conference, the mass-produced and -distributed
press release announcing the commencement of a lawsuit—these
are only a part of what we do, and a small part at that, especially
for the classic “business” lawsuit, which is more often fought in
the relevant business and trade media (or relevant social media)
than on Fox News or even CNBC. In fact, for reasons that will
become clear throughout the course of this book, press confer-
ences and other in-your-face approaches are precisely the types of
tactics I don’t recommend in most circumstances.
Which brings me back to my original question—What is litiga-
tion PR? Well, here’s my “textbook” denition:
Litigation PR can be dened as managing the communi-
cations process during the course of any legal dispute or
adjudicatory proceeding so as to affect the outcome or its
impact on the client’s overall reputation.
Now that’s a bit dry. So, to illustrate the power of public rela-
tions in inuencing the course of litigation, let’s consider the fol-
lowing example, not from my work as a consultant to lawyers
and their clients in high-prole court cases, but from my experi-
ence as an attorney. It is a “small” case, which further illustrates
that using the media to inuence the course of legal proceedings
is not necessarily the domain of just Apple or General Motors
or criminal defendants like Harvey Weinstein or Bill Cosby, but
rather anyone whose case has the potential to bring him or her
into the public eye.
An Appeal to Reputation
In addition to my career as a public relations consultant, I am also
an attorney admitted in New York and Florida. Although most of
the cases highlighted in this book stem from my experiences as
a communications consultant in high-prole litigation, I do occa-
sionally get involved in legal matters as a practicing attorney. I
generally only get involved in cases as a lawyer if it involves an
issue of particular interest.
This was one of those cases. John* was a ve-year-old boy who
walked with a brace on his left leg. In late August, shortly before
the beginning of John’s rst day in kindergarten, his mother
*Not his real name.
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W H S
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called me. John needed a new leg brace to begin school. The old
one, afxed to a heavy brown shoe, was worn, even rusted at
points, and had a noticeable squeak when John walked. It was
barely functioning and clearly unacceptable for a child just begin-
ning the educational process. Kindergarten, as we all know, can
be the rst great leap into socialization for a boy John’s age, and
his mother was worried that if he went to school with a rickety
leg brace—or even worse, with no leg brace at all—it would exac-
erbate what was already an anxious situation for the child. John’s
mother had already been to the orthopedist; the new leg brace
was measured, tted, and ready to go.
But here’s the problem: John’s father had recently switched
jobs, and his health insurance was refusing to cover the cost of
the new leg brace. He’d been at the job for too short a time, they
told him; thus, coverage for “special services” hadn’t kicked in
yet (a questionable reading of the health insurance contract, by
the way). Come back in six months, they said. It was days until
school was to begin, and John’s parents didn’t have the money to
buy the leg brace outright.
In my capacity as attorney, I spoke to the claims representative.
“Sorry,” he said, “rules are rules.” If John and his family didn’t
like it, they could appeal the decision, and if they didn’t like the
results of the appeal, they could go to court. John would be a col-
lege graduate before we ever saw a nal decision.
I next wrote a letter to the general counsel of the insurance
company, explaining the situation and asking for his intercession
to waive the appeal requirement—I was relatively sure insur-
ance companies could do this under the right circumstances. I
mentioned in the letter that it probably wouldn’t look good for
the company to be denying a child’s claim on a technicality just
before he started school. No response. It was Wednesday at that
point, and kindergarten was set to begin the following Tuesday.
On Thursday morning, I nally was able to get the general
counsel of the insurance company on the phone. I described the
situation and how unseemly it was that this child should be start-
ing school in a few days without the leg brace that the insurance
company would approve under any other circumstance. Wasn’t
there anything he could do?
It turned out there was a procedure for overriding the decision
on coverage without going through the normal appeals process.
He just wasn’t going to do it.
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