By Erin Powers
Litigation communications have evolved into an essential utility for attorneys who recognize that their clients may need more than their legal acumen. For better or worse, the trend is clear when it comes to the convergence of the law and the news media.
Litigants increasingly expect their reputational assets to be publicly protected in legal disputes, even if a case is expected to settle before or be won in trial or on appeal. For these clients, the so-called court of public opinion is as important as any court of law. Popular fascination with legal controversies and sports and entertainment and a 24-hour news cycle mean that “no comment” may be a less appropriate option for counsel with high-profile or high-risk clients.
The best sports litigators and agents effectively unite their clients’ legal and business interests and manage developments in both forums – without adversely affecting pending litigation. They know that extrajudicial speech is here to stay, and they manage their clients’ legal and communications needs. The benefits of developing strategic communications capabilities that complement legal advice include:
• Protecting or defending a client’s reputation in support of a legal strategy
• Ensuring fair and balanced news coverage
• Helping clients reach key audiences
• Adding value to your legal services
• Validating a client’s decision to continue working with you
Sports litigators handle a wide range of issues – from collective bargaining and compensation negotiations to injury and off-the-field issues, NCAA violations, and intellectual property disputes. Some matters never make the news headlines, and others do, but all are important to the clients and litigation parties involved. With that in mind, here’s what every sports litigator should know:
• Every client has vulnerabilities. The challenges facing Tiger Woods and his billion-dollar business enterprise are instructive. While pundits and the public debate questions of Woods’ privacy and prospective playing schedule, the important lessons for legal advisers involve crisis management issues – and advance planning for the crises.
• The news industry is changing. Sports litigators would be wise to dispense with assumptions about The Media. What was true five years ago about the news industry is not necessarily true today. For example, celebrity news is the fastest growing segment of the industry, and the 24-hour news cycle, social media, blogs, and instantaneous online news present new opportunities and challenges for sports litigators.
• Crises and litigation happen. Will you be ready when the client needs more than a trial lawyer or a brilliant brief or motion for summary judgment? Or when a major news outlet gets a copy of a filing in a litigation matter you hoped would be quietly resolved? Predictable tension exists between many in the news media and the legal profession. Despite a mutual professional dependence, these two groups often coexist with competing objectives, deadlines, professional standards, issues of confidentiality and public disclosure, and expectations of their organizations or clients. The time to work through these issues is before the client’s litigation begins or crisis occurs.
For many lawyers, development of litigation communications capabilities serves not only the client and matter at hand, but also benefits with a long shelf life. Judicious cooperation with news media provides a focused, cost-effective means of reaching current and former clients, professional colleagues, referral sources, and buyers of legal services. Many firms wisely regard this activity as a competitive necessity.
Development of litigation communications capabilities should begin with an honest assessment of your firm’s communications resources and your clients’ existing and likely needs for support. Most litigators, while verbally skilled and quick-witted, can benefit from media training – either self-directed or provided by communications professionals. Some media training programs can be designed to meet state bar standards for continuing legal education accreditation. Objectives of media training typically include:
• Learning whether, when and how to contact or respond to news media to protect client interests.
• Developing news interview skills and productive news media relationships.
• Discussion of professional restrictions on extrajudicial speech.
• Preparing for representation of high-profile and at-risk clients.
Many large law firms have excellent in-house communications capabilities. Others do not and those firms – which typically maintain strong marketing and client relations programs at the expense of media relations and strategic communications resources – often retain outside consultants who specialize in legal affairs matters – proactive and defensive. A practitioner of litigation communications is not simply a publicist. Litigation communications consultants should be experienced in working under the constraints of protective orders and confidentiality agreements. And they should be aware of the debate over extending attorney-client privilege and the work product doctrine to litigation communications advisers.
Erin Powers is principal of Powers MediaWorks LLC. A former sports journalist and law firm communications director, he advises attorneys throughout the United States. More information is available at www.powersmediaworks.com.
