The origins of Litigation PR may not be common knowledge amongst those outside the industry, but - according to Eugenia Verenko, Senior Consultant at Byfield - for those in the know the birth of Litigation PR represents a vital turning point, and teaches an important lesson, even today.
Over the last thirty-five years, litigation PR has matured from just an offshoot of crisis communications and reputation management into a stand-alone discipline. Many professional PR agencies now focus solely on public relations during litigation, while some also work with clients engaged in alternative dispute resolution. The practice has grown big and powerful enough to seek a definitive answer about its origin.
So how does one establish the birth date of litigation PR, and determine who was its founder? Journalists have been covering high-profile criminal processes and civil cases as long as newspapers have been around. Does it mean then that litigation PR began as soon as the media started to develop court reporting?
Probably not, as you can’t have litigation PR without parties working to sway public opinion by arguing their case outside the court. So, to tell the time of the creation of litigation PR, one should look for the date when a defendant first hired a PR specialist to speak for them with the public. Enter Alan Hilburg. The prominent American crisis PR specialist claims to have pioneered the formal practice of litigation PR back in 1985. Of course, there is no way to tell if another unsung hero had practiced it earlier, but no one else has claimed the honour so far.
Since the old days, the press usually portrayed claimants as those who were wronged. Prosecutors were presented as knights in shining armour, bringing justice to the victims, while defendants have been forced to play the role of the villain of the piece. For years this was how newspapers and the public saw them, and consequently, defendants needed help to explain themselves. They would seek advice from an expert who could tell their story in a manner which would get the readers’ attention. This was a task that required specialist skills, such as knowledge of crisis communications and the ability to build excellent relations with courtroom journalists.
At this point you may well be saying to yourself: “But isn’t this exactly what crisis PR does?”. The answer is no, litigation PR has a different approach and different limitations. While litigation practitioners need to be able to digest and simplify the legal aspects of a matter for the media, they must do it in sync with the client’s legal team. Furthermore, litigation PR specialists have the added concern of ensuring that their work does not negatively impact the legal proceedings, for example, through contempt of court.
The year when litigation PR started as a formal practice is marked by the preparations for, and the beginning of, the court battle between United States Tobacco Company and a grieving mother of an 18-year-old. In Marsee v United States Tobacco Co., 639 F. Supp. 466 (W.D. Okla. 1986), Mrs Marsee accused the company of causing her son to develop oral cancer. She alleged that Sean’s condition was due to the company’s dipping snuff, which her son had been taking for six years before he was diagnosed. A federal jury ruled in favour of US Tobacco, and then Mrs Marsee lost her appeal three years after.
In June 1986, The New York Times quoted a spokesperson from the company as saying: “In essence, the jury has said that U.S. Tobacco was not responsible for this young man's tragic death.” They were sympathetic in describing the tragedy and humble when stating the fact of their victory. The spokesman went on to suggest that: “There's been a lot of speculation as to the impact of this decision on U.S. Tobacco as a company and on the tobacco industry as a whole. At this point, it is simply too early to assess what that impact might be.”
Unfortunately, this is as much as we can deduce from this news item as to the extent of Mr Hilburg’s litigation PR support of the defendant. However, even this information is enough to imply high standards of such support. Fast forward thirty-five years, and the need for litigation PR has grown tremendously. It has evolved beyond media relations, into the realms of digital communications as social media keep a vigilant eye on legal matters of public interest.
As the old adage goes: even winners in the court of law can become losers in the court of public opinion. Unfortunately, the efforts to rebuild reputation after the dust has settled might not be enough to make a real difference. So the best advice is to start preparations for reputation management even before the litigation claim has been filed, and the best way to do so is by enlisting help of professional litigation PR specialists.