litigation

What to expect when you’re expecting: preparing for litigation

Critical takeaways

  • Litigation is a fact of life for businesses so it is often a matter of when, not if, you get sued. Businesses are still often unprepared for this, compounding the challenges of litigation.
  • Although complex, litigation is still a process and one that communications teams can prepare for.
  • These steps will help communications teams develop ‘litigation preparedness and build stronger relationships with the Legal team before any lawsuits arrive.

 

We are currently working with a client that, despite prolonged negotiations, is now in the unfortunate position where litigation is very likely. We’ve certainly worked hard to try to avoid this situation, but the reality is that the other party feels that this is their appropriate next step and we expect them to file suit shortly. Everybody wanted to avoid the courts because of the additional cost, distraction, and potential reputational impact but now that we are here, it’s time to get ready and prepare for litigation. 

We’ve identified several steps that communicators and organizations should take in the face of the threat of litigation. Some of these are long-term in nature and can be conducted as part of a routine preparedness program while others are specific to the issue at hand.

Internal preparation

First and most importantly is coordinate with the legal team. Staying close to legal so that neither team gets far out in front of the other is vital. This avoids surprises and maintains a coordinated response to the litigation. A lot of this is going to be ensuring that the communications team understands the due process journey that’s involved. What’s likely to happen in the discovery phase? How are depositions managed? What happens after the initial filing? Could there be a counterclaim? 

However, it’s also crucial for Legal to understand what the communications response will look like and get a sense of how stakeholders will react. This understanding will ensure that they aren’t caught off-guard by what’s happening in the court of public opinion. Staying closely coordinated with the legal team throughout the process is critical.

The next point still concerns the relationship with Legal because you now need to establish the chain of command and ground rules so you can move quickly.. This should not be the first time these teams have worked together and there should be an existing chain of command in the organization. However, we need to understand as early as possible where specific responsibilities lie, who has primacy at different stages and who has the veto authority. This will clarify the chain of command for the situation you are facing and help new players, particularly external counsel, understand and fit into the organization.

Something to do as quickly as possible is to prepare a timeline. When did the critical events occur? When were meetings held and who was at those meetings? What were the major decisions made? Who was informed of what and when, especially if government regulators were involved? The outcome of this exercise should be a clear explanation of the journey which lead up to this particular day. Legal will have a hand in this and may even head up this process so ensure that this is a joint effort.

Next, that timeline needs to be turned into a set of talking points, outlining what happened and explaining any particularly complex issues that could be confusing. It’s been my experience that the areas of contention will surface during the timeline process and you will start to see where you might need to defend a particular practice, procedure or decision. 

By this point, you will be able to start preparing key messages to stakeholders. The messages and the way these are delivered depend on the nature of your business and the nature of the litigation. But the point is that you want your key stakeholders, those that matter most to you, to hear what’s going on from you instead of seeing it in the media when the other side decides to take their action. 

However, there are significant legal considerations to keep in mind concerning what you say, when, and to whom. So you must work with your colleagues in Legal not only to agree on the messaging but also on scheduling and delivery. There will be a tendency for communications to want to get out in front of a story, whereas Legal will want to say as little as possible, as late as possible. Having good working relationships and a transparent chain of command will help with this but you need to keep this tension in mind. Avoid being too antagonistic and getting too far ahead of the legal curve.

Alongside the talking points and key messages, you can develop a basic press or media kit. You have your timeline, your talking points, and written material for your key stakeholders. Now you need to bring all of this together into a media kit that includes fast facts and background on the organization, B-roll video, explanations about processes and procedures, and bios of key staff and experts. 

Now it’s time to prepare your storytellers. The first thing you need to do is to conduct media training for key staff. Ensure that everyone who might have to speak to the media has had media training. Use the key facts and figures of the situation and the talking points in this training to begin to refine and embed these messages. Ensure that you practice a range of formats including on-camera interviews, phone interviews, and mock press conferences. Prepare your experts and communications teams for desk-side briefings to journalists (more on these shortly).

Meanwhile, you have to work with your litigation team to prepare those who may have to testify. This will include your senior executives and subject matter experts. The Legal team will do similar preparation to improve everyone’s communications ability and run mock trials with them. Although this is for a Legal requirement, Communications has a lot to offer to ensure that everyone is a convincing storyteller.

Lastly, consider creating a war room. This doesn’t need to be large scale or high profile but it walls-off the issue and keeps things within the small team of executives, legal, and communications folks that are managing things. This preserves confidentiality but also avoids paralyzing your whole organization while the work continues. It also concentrates all the information sources and key decision-makers to help you develop the speed you need.

The common thread

Throughout all of these preparations, you need to assess and understand your risks continually. What issues in the timeline are likely to create the most significant challenge? What if the other party moves faster than you anticipated? What if your legal strategy is misaligned with public opinion? How can the organization balance the demands of the litigation with upcoming business initiatives? Even if your case is legally sound, what are the reputation risks of litigation? Think about your risks using something like our strategic, preventable, and external risk framework to put these into context and to help determine how to best address these alongside the litigation and communications efforts. 

External preparation

By now, you will have an idea of where you will need external help to help tell your story and you can start to engage experts. There are somewhat conflicting thoughts on whether the Legal and Communications teams should maintain the same set of experts. At Kith, we believe that there should be different sets of experts with litigation experts managed by the litigation team and communication experts overseen by the Communications team. 

These two activities run in parallel and need to be carefully coordinated, but an expert spokesperson appearing in the media will be held to a different standard and require different preparation than a courtroom expert. Once you have assembled your experts, use the talking points, key messages, and your risk assessment to start to prepare them to tell your story and defend your organization publicly. 

Next, I suggest you conduct a series of desk-side briefings with reporters, opinion formers, and media outlets you already know. Sit and have a conversation, provide them with an opportunity to understand what’s going to be coming, have them understand the facts and details of the situation. [Bill – can you add a line about handling questions that arise here and is this on the record, off the record, background? I haven’t heard about engaging with the media this way before and want to clearly differentiate these from interviews] These desk-side briefings are typically done by the communications team as they already have established relationships with the media covering the industry but it can certainly also include senior executives, as well as folks on the legal team as long as they are prepared appropriately.

The big decision

One of the most significant strategic decisions you need to decide who’s going to move first. If you feel that’s inevitable that you’re going to get sued, does it make sense to move first? This would allow you to be proactive, to tell your story first, and to generate a degree of speed. However, there is also a case for using the time to get fully prepared, let the other side move first, gauge people’s reaction, and then head into the court of public opinion.

Neither is right or wrong: it’s always going to depend on the situation. But it’s something that requires active decision-making, balancing the views and opinions of Legal, Communications, and other decision-makers.

When, not if

It’s an unfortunate reality of business that organizations get sued. Knowing that, there’s no real excuse for getting caught flat-footed, but organizations are often caught out when the lawsuits start to arrive. However, I hope we’ve shown here that preparing for litigation is a process and not a particularly onerous one, assuming you do it before the action starts.

We’re fortunate enough to have had a reasonable period leading up to this point where our client is expecting to see a lawsuit very soon. That’s allowed us the time to prepare them for what’s coming next. But we’re also fortunate in that everyone at Kith thinks ‘when, not if’ with respect to legal action, so we have been priming the client for a while, hitting the points I’ve outlined above. So although the real hard work will start once the specifics of the lawsuit are known, the building blocks and core capabilities are already in place.