The In-house Counsel Litigation Conference closed with a break out session on reputation risk and opportunity in the context of litigation. Panel moderator, Robert Ivens, a consultant at Peerpoint, introduced the discussion by stating the importance of reputational management. He noted that in-house counsel could never consider litigation without factoring its potential impact on the reputation of the business.
The panel comprised speakers from a variety of backgrounds – Jo Sanders, Partner at Harbottle & Lewis, Claire Gill, Partner at Carter-Ruck, Antony Dunkels, Director of Edelman’s Litigation and Legal Affairs practice, and Michael Prescott, Managing Director of Hanover Communications – which made the discussion particularly interesting and practical.
The importance of reputation
Having been part of a legal team investigating banks, Mr Dunkels, a former barrister, said that banks were as concerned about their reputation as they are about the legal and commercial impact of litigation. It is common practice for communication advisors to be present at relevant meetings. He cited a recent PR issue associated with a large UK bank, querying the impact of the financial penalty they were handed, versus the adverse publicity.
Businesses now have to think about their reputation, but the question is how do you measure or quantify reputation?
The second question is how to mitigate reputational risk?
Risk and damage are increased by poor communication and uncertainty, and it is important to consider how a competitor would use the damaging information.
The solution is collaboration. Often, there is a disconnect between people from the legal industry and people from the communication industry. This disconnect needs to be bridged in order to put in place an efficient risk management strategy.
Generally, management needs to have greater awareness of the reputational impact, and, it is important to involve communication advisors at an early stage in order to give them a full understanding of the underlying legal issues.
Most people working in media do not have a legal background. It is important to help the journalists understand the legal background and issues.
Mr Dunkels made a parallel between the duty of honesty and integrity that advocates have in relation to the court, discussed by Lord Clarke in his key note address, and the duties that apply to communication advisors. PR advisors have a duty to communicate legal issues fairly and honestly, and only legal advisors can help them do that.
‘Pick your battles wisely’
Jo Sanders shared her experience both from a communications and legal perspective, having been a journalist prior to qualifying as a solicitor. Ms Sanders said that in a lot of her cases she was instructed because the parties involved have high profiles.
In cases where a counterparty is seeking to use reputation as a weapon, the “normal rules” of litigation don’t apply. It is not uncommon to find your legal correspondence published online. This risk, of course, has to be taken into account before sending anything out.
You have to pick your battles wisely. This applies to all litigation, but it is particularly important if reputation is concerned and has to be kept in mind when planning any legal and communication strategies.
Often, clients will want to correct every piece of misinformation about them online. That is not necessarily the right approach. In fact, most of the time “doing nothing” can be the best strategy to avoid the ‘bear trap’ of an opponent who would use a dispute as a platform. Once you start correcting one piece of misinformation, you may have to correct every single one because it could create the impression that unchallenged information is right, simply because it was not corrected. Rather than reacting to everything, it is important to focus on what is relevant to your case.
The test Ms Sanders proposes is to ask if the misinformation is so serious that the business could not tolerate it. To assess this, one should take into consideration the consequences each particular piece of information bears and the credibility of the source. There are always people on the other side that you will never be able to convince, so any attempts to do so are wasted. However, articles by credible sources such as Bloomberg or the Financial Times should be taken seriously and intervention is often necessary.
The importance of media proofing
Michael Prescott worked as a journalist for over 20 years, served as BT’s Corporate Affairs Director for seven years and is now Managing Director at communications and public affairs consultancy Hanover. Mr Prescott reiterated the importance of media proofing. He said that whenever one is looking at litigating, one should put media proofing on the initial ‘to do’ list.
He said that one always learns best from worst experiences. Any communication that goes out has to be carefully considered.
Plan your message
Claire Gill, a litigator at Carter-Ruck, said one party’s risk is always the other party’s opportunity. Therefore, planning is essential and devising risk assessment strategies should be done at the outset to see where reputational threats could arise in the course of litigation.
In addition to the media, one has to consider two other potential sources of information that can end up in the public domain.
First, it is important to consider the nature of your opponent, for example, whether it is a serious competitor? Always anticipate what they could or may do with a particular piece of information.
Secondly, your own side’s employees. In the age of social media, an employee may tweet something that contains legally privileged information. Therefore, it is essential to brief employees on the importance of not sharing certain kinds of information. This also applies to senior executives. It is generally a good idea to advise any high-profile people involved in litigation not to give interviews. Even if an interview seems unrelated to their litigation, sensitive questions can be thrown in and if caught off guard, public statements can be damaging. Ms Gill gave an example of one of her cases in which someone took part in a documentary and was asked about ongoing proceedings. You should brief your clients appropriately and advise them to refrain from using media without previous preparation.
A good way to limit the amount of information involved in litigation is to narrow the issues in debate at the outset. By narrowing the scope of disclosure effectively, one can avoid the disclosure of sensitive communications. By picking witnesses carefully, one can avoid any additional information coming out in cross-examination. Ultimately, the, goal is to control the narrative in a way that is most advantageous to your own case.
Interested in attending next year?
In-house Counsel Litigation Conference 2018