The New Law of Litigation Communications: Your Case Will Now Be Heard – On Facebook

By Thom Fladung, Hennes Communications

The Court of Public Opinion is now in session. In fact, it’s always in session – on Facebook, Twitter, Instagram and other social media outlets.

The practice of litigation communications or litigation public relations is young, as legal and communications matters go, emerging in the early 1980s, according to many sources.

Much more recently – 2003 – James Haggerty’s book “In the Court of Public Opinion: Winning Your Case with Public Relations” was published and rapidly became a touchstone on the subject.

At that point, Haggerty still was pleading the case to attorneys that litigation communications was even important: “Communicating effectively during litigation is about managing the public opinion aspects of legal disputes as effectively as you manage any other aspect of the litigation or transaction. It is not an afterthought. It is not an extra. It is not something to be handed off to the client’s PR team or decided over drinks after a long, hard day of ‘real’ legal work. Rather, in this new reality, communications is central to the strategic whole – whether you are confronting litigation, a regulatory investigation, a labor issue or any other type of legal dispute.”

And he argued that the new media age had closed that case: “It is not at all overstatement to say that the world in which most lawyers are practicing has changed immeasurably over the course of the past two decades. We have entered an era of 24-hour news, Web-blogging and 500-channel cable boxes. In this new media-saturated environment, it is becoming increasingly clear that old approaches to media and public opinion just don’t work. As lawyers, we need to adjust – just as surely as we adjusted to online research, computerized document management and the electronic filing of pleadings.”

Guess what? The approaches that were pioneering in 2004 in Haggerty’s brave new world of “500-channel cable boxes” now are “old approaches” in a world where 24-hour news seems quaint and most stories about cable TV involve people cutting it.

Of course, in 2004, Facebook had just launched and Twitter was two more years away.

Today, the debate about the need for litigation communications is largely over – or should be. The real challenge now is figuring out how to do it effectively, as well as legally and ethically, on social media. That’s where the Court of Public Opinion now resides.

And the profound change that Haggerty cited as occurring over two decades now seems to occur on an annual basis. Consider, according to a 2016 Pew Institute study:

• 62 percent of U.S. adults get news on social media.
• 6-in-10 of Twitter’s 310 million monthly active users get news there.
• Two-thirds of Facebook’s 1.13 billion daily active users get news on the site.

Yet often in legal circles, it seems social media is regarded as something more to fear than embrace. The American Bar Association’s “Litigation” journal in spring of 2013 had a piece on how attorneys can use social media as a communications and litigation tool. While well-done, the story also described social media outlets as “both powerful and risky tools.” Also: “uncharted and potentially treacherous waters” and “ethical minefields.”

To be sure, social media is all that. One growing trend is judges including social media in gag orders.

It’s also the most powerful and effective litigation communications tool available to any attorney. And it’s still one of the most unexplored. While stories on the importance of litigation communications, generally, are all over Google, stories about how to most effectively use social media for litigation communications are much harder to find.

And well-meaning efforts, such as a recent piece that features “tips for litigation PR,” included such “tips” as “Use the web and all social media channels wisely.”

We’d suggest starting with the classic “who, what, when, where, how” approach – in a slightly different order – in considering social media for litigation communications:

Where are the key audiences for this litigation issue getting their information? One of the tools of the social media trade is knowing which channel will work best for you. Is it newsy? Twitter has become the go-to place for breaking news. Are journalists an important audience? Again, Twitter. Would you like to have your communication shared widely? Use Facebook. According to Pew, 81 percent of all content shared in the U.S. is shared on Facebook.

What are people saying about your issue on social media? Is misinformation circulating? Correct it and link to corroborating, independent information from your social media post. Don’t allow factual errors about your case or issue to live online.

Who are the key social media influencers interested in your case or issue? Look for Facebook pages or other digital sites that may have been set up to address your issue. If people are talking about your case on Twitter are they “verified” users? Look for a check mark next to the Twitter user’s name. Twitter verifies accounts if it determines them to be of public interest. Many journalists have verified Twitter accounts, for example. Monitor those more closely. They likely have more influential followers.

How do you use social media effectively for litigation communications? Be responsive. Social media is built on two-way communication. Work fast. Social media also is built on speed. Remember your audience. You aren’t necessarily responding to a specific social media user. You’re responding to all the people who are reading that post – and waiting to see what you have to say.

When is the best time to utilize the astounding reach of social media to help your case? Consider the example of Mark O’Mara, the defense attorney for George Zimmerman, who was on trial for murder in the death of Trayvon Martin. The book “Social Media in the Courtroom: A New Era for Criminal Justice?” by Thaddeus A. Hoffmeister described O’Mara’s social media strategy: “With social media, Zimmerman’s defense team could circumvent traditional media outlets and reach the public directly. This direct connection to the public allowed them to (1) dispute misinformation about the case; (2) discredit and eliminate fraudulent social media profiles of people claiming to be George Zimmerman; (3) reduce speculation about the case and George Zimmerman; (4) raise funds for George Zimmerman’s defense; (5) react to developments in the case in real time; (6) post relevant legal documents.”

Hoffmeister, a University of Dayton law professor, is emerging as one of the top voices on the issues around social media and the practice of law. His book is filled with helpful advice and cogent observation. His blog, Law and Social Media, is worth checking out.

Still questioning the need and usefulness of social media for litigation communications?

We’ll give the last word to O’Mara, who’s been there and done it in one of the highest-profile trials of recent years. Here’s what he told Hoffmeister about why he uses social media: “We contend that social media in this day and age cannot be ignored. It is now a critical part of presidential politics, it has been a part of revolutions in the Middle East, and it is going to be an unavoidable part of high-profile legal cases, just as traditional media has been and continues to be. We feel it would be irresponsible to ignore the robust online conversation, and we feel equally as strong about establishing a professional, responsible and ethical approach to new media.”

Thom Fladung is a vice president for Hennes Communications.  His 33-year career in newspapers includes service as managing editor of The Plain Dealer, Detroit Free Press, St. Paul Pioneer-Press and The Beacon Journal in Akron, Ohio. Contact Hennes Communications to learn more about social media and the practice of law, crisis management and communications and how to attend a Hennes presentation.