Q&A with Megan Paquin, Vice President at Poston Communications
Just before the COVID-19 pandemic started and other important events of 2020,
Law360 cited crisis management among the top four hottest law firm practice areas. Many organizations view crises through a legal lens as the list of challenges facing companies today is long, and litigation is only one of the potential consequences. Reputational harm, financial loss, fines and penalties, and stock-price drops are key considerations of a crisis or litigation communications strategy.
Adding crisis management to a law firm's arsenal only enhances the value of its client service. That's why, according to Poston Communications Vice President Megan Paquin, strategic communications is the next competitive advantage for law firms.
Here, Megan discusses the important role strategic communications plays in managing crises and legal risks, winning litigation and adding value to clients – and what legal marketers can do to support their lawyers in building their firms' capabilities in these areas.
How does a company's reputation influence its success in the courtroom?I'm sure we've all seen examples of how winning in the court of public opinion can be just as, if not, more important to a brand than winning in the courtroom. Or how public perception influences stock prices, for example. In-house counsel have become increasingly mindful about how jurors' predispositions influence litigation and how legal disputes shape companies' reputations.
Juror behavior closely aligns with the "belief-driven buyer" marketing concept where people buy services, like law firms, based on whether the buyer and provider share compatible beliefs. For example, if a buyer cares about environmental issues, they're going to buy from sustainable brands. Or if a buyer champions women's rights, they may “cancel” a provider caught in the middle of a #MeToo scandal.
Jurors employ the same mindset as consumers, but on a much more punitive scale.
According to a Magna Legal Services survey, 76% of jurors believe corporate executives lie and cover up mistakes, so immediately the deck is stacked against any organization that lands in court. Thirty percent of jurors believe it takes billions of dollars to send a message to offending companies. So, the more jurors believe a defendant is lying or doesn't share their values, they are more likely to levy a billion-dollar verdict. Yes, billion.
Often lawyers believe the court system is designed to weed out personal biases, and that because jurors are instructed by courts to solely focus on evidence presented at trial, public perception shouldn't impact the outcome of a case.
But, at the end of the day, jurors are people and they can't abandon human nature.
Lawyers should care about public perception because jurors care about it. And in-house counsel care because juror behavior mimics consumer behavior – and consumers ultimately determine the success of a company.
Simply put, to be successful in the courtroom, you must be successful in the court of public opinion.
How do in-house counsel view strategic communications as a means to manage crises surrounding legal matters?Poston Communications recently surveyed in-house counsel along with the Association of Corporate Counsel's Georgia chapter to ask if communications were important to them and if they interact with their communications teams.
Ninety percent of respondents said they feel strongly responsible for maintaining their organization's reputation and more than half of respondents agreed that maintaining a positive corporate reputation is the most important outcome of a legal matter – even above its legal outcome. For that reason, we are seeing many corporations actively seeking communications counsel as part of their legal representation from outside law firms.
What communications capabilities are clients seeking, or even requiring, of their outside counsel?In our survey of in-house counsel, 35% said they would consider communications capabilities as a hiring factor in choosing legal counsel the future.
In-house counsel are increasingly asking law firms to describe their experience in handling media strategy surrounding legal matters. Clients also are asking law firms to describe their social media listening capabilities around crises. For example, when hiring a law firm for employment litigation matters, a client may ask how a firm will help monitor employee or public sentiment on social media.
Legal marketers shouldn't feel pressured to serve as litigation PR experts if that's outside the scope of their experience or beyond their bandwidth. Engaging appropriate outside assistance may give your firm a competitive advantage in taking on those matters.
What communications support services can legal marketers provide to their lawyers and the clients they serve?Attorneys may look to legal marketers to secure outside assistance in high-profile litigation matters where a client's reputation is at stake.
Having a list of litigation PR firms at the ready is the first step to developing a law firm's strategic communications capabilities. This list may be different from your typical list of PR firms. Litigation support is a different animal and requires specific experience. Many legal marketers aren’t aware that Chambers and Partners publishes a list of top firms in this area, just as they rank law firms, which could assist in this process.
In vetting outside PR assistance, consider the depth of a firm's litigation PR experience and whether they understand the interplay of attorney-client privilege, the work product doctrine and First Amendment issues. If a PR firm doesn't understand how to protect and help your team argue for attorney-client privilege, the attorneys may inadvertently waive confidentiality for their client. Certain PR activities are not considered privileged and that can be based on who performs those activities just as much as the activities themselves.
Vetting litigation PR firms in advance is critical because if a law firm has not established trust in the relationship, its lawyers may refrain from disclosing important information and the PR firm may end up operating blindly amid a rapidly-evolving crisis.
In your vetting process, ask:
How do you handle attorney-client privilege and work product doctrine? How do you address defamation? What can you publicly say in a filing versus public statements or a press release?If the candidates don't have good answers to these questions, that's a red flag.
Secondly, consider a PR firm's long-range strategy. Are they planning to take a rapid response approach or do they have a strategy for how early communications and messaging may impact litigation two or three years down the road?
In handling a litigation matter, you have to get the communications strategy and messaging right at the onset of the case. Then when a trial begins, lawyers will select jurors who identify most with those message points. Jury consultants can assist in this process. Early messaging also shapes the narrative of the case.
How has the pandemic impacted strategic communications around litigation matters?When the COVID-19 pandemic forced the closure of offices, it also accelerated the emergence of the virtual workplace across industries – including the legal industry. Last year, we even saw virtual trials take place. As a result, "virtual communications," as we call it, has become a critical skillset to legal marketers and lawyers alike.
From new business pitches to client meetings, virtual events and even virtual trials – lawyers are increasingly turning to legal marketers to advise on virtual communications.
Jury consultants can assist with preparing visual aids for trial. But as we've seen over the past year, legal marketers also have been key players in trial preparation.
Legal marketers are now being asked to train lawyers on virtual presentation skills in preparation for trial – as well as virtual media interviews. In a post-COVID world, legal marketers are likely to continue serving in this capacity.
What are the key considerations for coaching lawyers on virtual communications?You can develop persuasive legal arguments and sharp visual aids to present evidence at trial, but if a lawyer is working remotely and sitting in a shadow, the jury will never trust her. Lawyers are conditioned to focus on the facts of a case, but they're not used to thinking about how best to present that information in a virtual world. It’s unnatural for all of us. The same may be true for new business pitches, client meetings, virtual events and media interviews.
Consider how your attorneys are representing your firm's brand in virtual court or virtual meetings. Is there a standard approach? Does your firm have approved backgrounds? Do attorneys know how to use the technology? Have they practiced presenting on-camera and do they know where to look to maintain eye contact with the audience? Do they have the appropriate resources to ensure they're well lit, that they're well heard or that they have the necessary internet bandwidth?
For example, one lawyer upgraded his home camera to produce a clearer image for trial. The camera was equipped with tracking technology that followed his movements, which made the judge feel nauseated. The judge requested that he turn off his camera – putting the lawyer at a disadvantage in presenting his case. The lawyer could have avoided this outcome with proper coaching and rehearsal.
Legal marketers can support their lawyers by standardizing virtual communications materials and technologies, and by providing virtual presentation skills coaching. The pandemic has amplified the importance of virtual communications as a legal marketing skillset because virtual events, client meetings and media interviews, in particular, are here to stay.
Poston Communications served as lead communications counsel to the litigation team in a landmark United States Supreme Court decision last year. What role did strategic communications play in Bostock? Gerald Bostock's case raised an important employment litigation issue, but at its core, the case represents a larger matter of public concern – equal rights for LGBTQ people. Many Americans were unaware it was legal to fire an employee for being gay or transgender in some states.
Atlanta litigation boutique Buckley Beal enlisted our support to manage the public interest in the case. We started with the law firm’s owned media and created a case-specific landing page on the firm’s website.
We also collaborated with advocacy organizations like the ACLU, who represented the late Donald Zarda and Aimee Stephens in companion cases, the Human Rights Campaign, Georgia Equality, and many others who amplified our efforts.
As you know, one year ago, the Supreme Court held that it is illegal under Title VII to fire someone merely for being gay or transgender. Gerald ultimately participated in hundreds of media interviews, and this strategic campaign helped him secure the rights of millions of LGBTQ Americans.
What lessons did you learn from this experience?Gerald's story shows the importance of controlling the narrative of a case in the court of public opinion.
Imagine if media coverage solely relied on third-party speculation about the legal arguments in the case. Our role was to help the public understand the critical importance of the case and its impact on lives of LGTBQ Americans.
What corporations and law firms can learn from this example is that the public – or consumers – have become increasingly vocal about public issues, and they're taking inventory of the organizations that support or oppose those values. More than 206 businesses signed an amicus brief in support of Gerald and the other employees because the litigation not only directly affected their businesses, but also their stakeholders.
Taking a public stance on issues like racial justice or voting rights, for example, is new ground for many companies, and it is becoming increasingly common for attorneys to address those issues in the courtroom. Companies are now looking at law firms' values and reputations – and the sentiment around matters they handle – as much as consumers are scrutinizing their own values and reputations.
With that in mind, law firms now need to consider implementing a values check with regard to the matters they take on and the companies or people they represent.
There's no Switzerland anymore. Companies and law firms can't afford to be neutral.
By Leslie Valenza, LMA's Mid-Atlantic Region Newsletter editor and vice president of content client services at Poston Communications