This month’s piece of "Classic Scholarship" constitutes a small exception. It’s not exactly scholarship (it was adapted from a speech), and it doesn’t focus exclusively on class-action practice. Nonetheless, Deborah Lilienthal’s Litigation Public Relations: The Provisional Remedy of the Communications World, 43 N.Y.L. Sch. L. Rev. 895 (2000), contains some important insights for class-action practitioners.
Lilienthal’s primary argument, that corporate defendants in litigation cannot afford to ignore public relations, is hardly controversial today. There is no question that plaintiffs’ counsel consider public relations to be an important weapon in their arsenal against corporate defendants. Nor is there any real question that public relations can form an important part of a defendant’s litigation strategy.
However, in the corners of Lilienthal’s speech (which was then adapted into a law-review article), are a number of insights about the tensions that can arise between litigators and public-relations professionals. Among the most important insights she reveals:
Media fit new cases into ready-made stories. Lilienthal introduces her argument by noting the coverage in the 1970s of a famous alleged automotive defect. While the company was largely vindicated in the courts, the damage to the particular brand had already been done. And, as Lilienthal notes,
This expose by a "radical" publication in the seventies lead the way to the expose-driven, scandal-obsessed media of the eighties and nineties, where news coverage is framed in stories of winners and losers, bad guys and good guys, David and Goliath.
The "David and Goliath" story in particular is one that is attractive to both plaintiffs’ lawyers and reporters. And it highlights a natural rhetorical vulnerability for corporate defendants.
Media coverage usually provides only a shallow understanding of complex topics. Or, as Lilenthal puts it:
Increased media coverage and public discussion, however, have not brought greater clarity about the law. As news and tabloid converge, the coverage of celebrity scandals – most of which are pending before a court of law – are open game for news and tabloid media alike.
What does this mean to lawyers? Two things. First, a lot more people know the law. Second, a lot more people think they know the law. If I may take a Machiavellian moment, these "legal" programs are supplying viewers with just enough law to make them dangerous. They are developing a cocktail-party familiarity with theories of tort liability, the grand jury process, even the exclusionary rule.
This widespread but shallow understanding of the law is even more prevalent today than it was ten years ago. Ten years ago, there were few, if any, legal blogs, and no widespread social media tools like Facebook or Twitter, that can broadcast announcements of complaint filings as if they were final verdicts. (I have nothing against Twitter; I use it myself. But I’m aware of the risk of distortion it carries.) For most class-action lawyers, who have trained hard in a specialized field of law, figuring out how to communicate complex arguments in simple terms can extremely challenging.
Most media abhors nuance. Media has always operated in an attention economy. And today, where outlets include 24-hour cable news, social media tools, and discussion forums, attention is even scarcer than it used to be.
Non-lawyers – for better or worse – are far less deliberative than lawyers. They are looking for and want to give an absolute answer. Their perceptions of law and those involved in a legal battle are shaped by different factors than lawyers. And these non-lawyers are your future jurors. For lawyers to ignore this truism is virtual malpractice.
In class-action practice, non-lawyers are not just future jurors. They’re future class members, future objectors, and future plaintiffs in other cases. A litigation strategy that is tone-deaf about public relations can alienate all of these different constituencies.
So what’s the takeaway from Lilienthal’s piece? Lawyers–especially defense lawyers–tend to be risk-averse and comfortable playing defense. While that instinct to deliberate can be helpful in motions practice, it may cause larger problems for the client when a crisis first breaks. PR professionals, reporters, and customers are not as deliberative, but they’re hardly stupid. A savvy litigation strategy that marries solid PR practice with a vigorous defense (like, say Taco Bell’s) can create a number of strategic opportunities for a defendant.