How to add PR when you’ve already taken an ‘L’

"If you lose a major decision or verdict in litigation and a reporter calls asking about the case, what should you do?"

New York Law Journal

If you lose a major decision or verdict in litigation and a reporter calls asking about the case, what should you do?

First, don’t engage with the reporter until you know your next step and have checked in with your communications/PR team. Even a polite call back to the reporter or a “decline to comment” can send the wrong message in a resulting article.

Ideally, you would have had a PR plan in place at the start of the litigation—one that covers the core messages you want to convey externally, timelines, role assignments for communications, and potential statements that can be swiftly updated and deployed upon various outcomes.

Or maybe you don’t have a plan. Or you do, but the specific outcome wasn’t anticipated or accounted for in the plan.

Whatever the scenario, it’s essential to weigh out the situation at hand, including what led to the loss, whether it’s a total loss or partial, what your next steps might be, and other important considerations, before diving into media engagement.

Bringing in your communications/PR team as early as possible can greatly support your media strategy, and by extension, your litigation strategy for your client. It can also prevent or mitigate misreporting of the legal facts.

Whether it’s someone in-house at your firm or a team from an outside agency, or even a combination of both, your PR support has likely encountered similar situations in the past and can draw from that experience to help navigate an unfavorable outcome. They may also have relationships with inquiring reporters – especially if they provided PR support earlier in the litigation.

Next, determine if you stand to gain anything by going on the record. If speaking on the record to a reporter doesn’t further your next steps, consider not responding, or, at most, speaking off the record (more on that later).

If it would be helpful to give a comment, determine if you have permission from your client to do so. You may have already discussed this with the client earlier in the litigation, but even if not, ABA Model Rules of Professional Conduct provide some ethical guidance on the dos and don’ts of engaging with the press during litigation (Rule 3.6: Trial Publicity and Rule 1.4: Communications help provide some contours on coordinating with the client and making public statements about court proceedings).

Regardless of the model rules, it’s always a good idea to get permission from a client and coordinate closely with them before speaking with media.

The client may have a PR team running point on all media engagement, and you don’t want two lines of communications running with the same reporters. Co-counsel might also have their own PR people planning to respond, making coordination between all parties essential.

If it turns out that you’ve been given the green light to speak with the media, determine who your spokesperson is, what they will say, and how to get that message across. Often, the best response to a litigation loss is a written statement that highlights any favorable elements of a result, looks ahead to your next steps and notes why your chances are strong for a victory there.

Each situation varies, but in any instance, avoid any temptation to badmouth the other side, the judge, and, if applicable, the jury. That may be easier said than done, especially while emotions are high and you are given the opportunity from a reporter to share your thoughts. A reporter may even fish for a comment like this to add some color to a story.

But while such statements help make it more interesting to readers, they do so at the expense of your case strategy, your reputation and your client’s. You might also derail any potential settlement, or worse, trigger further litigation. Best to stick to your core, forward-looking messages that further your litigation strategy and safeguard your client.

In instances where you’re unable to go on the record but have permission to speak on background or off the record with a reporter who’s covering the case, that can effectively highlight elements of the case that might get lost in sensational headlines. It also offers an opportunity to help a reporter understand the timeline and legal facts of the case – especially if it spans many years and jurisdictions/venues, involves parallel proceedings and collateral litigation, or even complex technical details.

Maybe the other side won on one claim, but you defeated several others that could have carried far more damages. Or maybe the winning claim is frequently overturned on appeal in other cases. Whatever the situation, it would be helpful to direct a reporter’s attention to these details of the outcome, pointing back to the documents as much as possible. It can provide valuable context to a potential story and paint a different picture than the total victory the other side is claiming.

If a reporter doesn’t call you, but you or your team ends up spotting unfavorable news coverage about the case, you’ll similarly need to weigh your next steps. Is it worth sending a statement or speaking off the record or on background about key elements of the case, or is it best left alone to not draw further attention to the result? Would engaging the reporter or providing a comment have an impact, positively or negatively, on future case strategy? These are considerations you must discuss with your PR team and client.

As the case works through further motions or appeals, consider promoting any wins that arise from those. It may not make sense to comment on a case in the moments after a loss, but that can change if something later gets overturned or reversed on appeal and turns into a win.

No publicity about a loss is going to be completely favorable, and since most litigation is public, there’s not much you can do to stop coverage from publishing. But maintaining your focus on your overall strategy and messaging, even in the face of a setback, will help guide you through media inquiries and manage the resulting coverage.

Jean-Luc Renault is a Vice President at the global communications firm INFINITE, based in Los Angeles. Yvonnie Phan is an Associate Vice President at the firm based in New York.

Reprinted with permission from the December 30, 2024 edition of the New York Law Journal © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.