Winning the court of public opinion: some lessons from the “real” courtroom

Critical takeaways

  • Both lawyers and communicators have to tell compelling stories in court. For communicators, the court of public opinion is a more challenging, unregulated space.
  • The court of public opinion is also less forgiving and there is no right of appeal.
  • Four key characteristics distinguish attorneys who excel in the courtroom and communicators can apply these same lessons to succeed in the court of public opinion.

 

I recently had the opportunity to speak to 200 energy company attorneys in the beautiful city of Charleston, South Carolina. The conversation revolved around risk mitigation and how to bridge the gap between attorneys and communicators during crisis planning and crisis response.

 

We covered a range of topics and I was glad that we were able to tackle several issues on my mind such as the risk of litigation and the nature of apologies. Overall, it was an excellent conversation and I believe that we found common ground which will stand us all in good stead in the future.

 

One topic that caught my attention concerned the preparation that good trial attorneys go through before arguing a case in court. I wondered if there might be lessons to learn for communicators as far as our preparation for “litigation” in the court of public opinion. Was preparing for the court of public opinion any different?

 

Luckily, I had a room full of lawyers so I was able to lean upon their expertise and, as it turns out, there are definitely lessons for us to learn from our legal counterparts. I did a little research afterward and discovered a great article which summarized four key behaviors that distinguish successful lawyers in the courtroom. 

 

  1. They understand the case better than their opponents.
  2. They control the courtroom.
  3. They project confidence in themselves and have respect for the court and justice system.
  4. They connect with the judge and jury and persuasively demonstrate knowledge, confidence, and sincerity.

The Importance of Trial Preparation, Benjamin Slater III in Best Lawyer.com

 

I believe that we as communicators can apply these lessons equally to the court of public opinion to help us excel and to tell our stories more effectively.

Develop a deep understanding

First, effective attorneys understand their case better than their opponents. In my conversations this week with the energy attorneys, they stressed time and time again that their particular industry is incredibly complex, difficult to understand, and difficult to explain. Their role is to explain things clearly to the court, which requires them to have deep industry knowledge in addition to their understanding of the case itself and the relevant laws. 

 

This resonated with me and I am proud of our ability at Kith to be “quick studies,” able to grasp the minutiae of a client’s business quickly. However, I also saw that we could benefit from some of the preparation techniques lawyers use. Opposition research, focus groups, mock trials (in our case mock press conferences or interviews) and ‘black hatting’ are all techniques we can adopt as communicators to help with our preparation.

 

To be a compelling story-teller, you have be a subject matter expert in that business, industry, and the specifics of the event. However, to communicate this effectively, we also have to explain these complicated concepts and technicalities in a way that the layperson will understand. We always need to keep our risk whisperer close by to ensure that we are fully conversant with the situation while also making our message clear and understandable.

 

However, it’s my experience that most antagonists attacking a company have limited insight and understanding of the details even if they act like experts. Feelings rather than facts often drive things in the court of public opinion so we need to be able to tell our stories in a way that will resonate with people at a personal level. This means that in addition to our grasp of the details, we also require a deep understanding of the feelings and emotions associated with the situation.

Exercise control

Second, effective litigators control the courtroom. However, a real courtroom has a judge presiding over it and a bailiff to ensure orderly behavior. The court of public opinion has neither, making it an unruly, unregulated space where very few, if any, rules of professional conduct exist. So instead of trying to control the court, communicators should focus on controlling how we interact with it.

 

This means controlling the flow of information, controlling the pace of the narrative and controlling the story that is being told. However, it is important to note that by “control,” I don’t mean “limit.” Similar to a real court, we should tell the truth, the whole truth and nothing but the truth. However, we should do it at a time of our choosing and in a way that gives us the maximum control of the narrative.

 

Remember, there is no right of appeal in the court of public opinion. People’s attention spans are fleeting and they will form an opinion of your firm and the situation very quickly before they move on. On the plus side, this often means that a critical moment is fleeting and quickly forgotten as the next interesting story breaks. However, it also means that you need to get your messaging right the first time as this is your only chance to make that first impression.

 

Be confident and respectful

Third, effective litigators project confidence in themselves and have respect for the court and the judicial system. As a communicator, you have to be confident in your abilities, knowledge and decisions, but you also need to ensure that you show respect to your opponents. First, this is simply good manners and no one looks good belittling their opponent. However, the concept of an “opponent” in the court of public opinion is murkier than it might be in legal terms. Is a journalist an opponent? What about third-party advocates? Or a regulator?

 

These aren’t “opponents” in an adversarial sense, but you will have opposing points of view and different desired outcomes. As communicators, we need to ensure that our confidence doesn’t come off as condescension, particularly where people have been hurt, offended or suffered losses.

 

One of the best ways to balance confidence and respect is to be transparent and authentic. Remember, there is also a confused public watching this take place. They need to hear and understand your story but they will largely judge you on your transparency and how you treat others. 

Connect with sincerity

Finally, great trial lawyers connect with the judge and jury and persuasively demonstrate knowledge, confidence, and sincerity. As communicators, we have to connect with those that we want to share our story with in the same way. Some of the factors I have already mentioned – such as transparency and expertise – will help but the main thing is for us to be sincere. 

 

That can be hard. We might need to admit we made a mistake, say we are sorry or relive a series of poor decisions. However, genuine sincerity helps us connect with our audience and to speak to those most affected. In turn, this allows us to start the process of healing relationships, rebuilding trust, and reestablishing confidence in our organization.

Meet your new BFF (looks a lot like the Head of Legal)

At times, it can seem that communicators and litigators are at odds, even when we are on the same team. That often speaks to the different dynamics at work in our respective crafts. Communicators naturally want to get out in front of an event and to start telling their story as a way to start the healing process. Meanwhile, lawyers are reluctant to move too fast or to volunteer anything more than is absolutely necessary as the potential for increased liability is always front of mind. 

 

However, if we can look beyond these different perspectives, we have a great deal in common. I learned a lot from these colleagues in Charleston and I think all communicators can benefit from following some of the good practices of those who excel in the courtroom. These are lessons that we can apply to our appearance in the court of public opinion to help us tell our story. 

So despite our occasional differences, get to know an attorney, particularly if you will be serving alongside one another in your respective courts. We can learn from each other and there will always be a legal component to a crisis so we need to start building these relationships.