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Fourth Annual Advertising and Marketing Law Conference
Strategic
Use of Public Relations in the Legal Process (Slide Show --
PPT)
Notes
for Remarks (Sean McPhee), February 19, 2002
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Introductory
Remarks
·
We’re
going to focus on some alternative methods in the legal process – specifically
the strategic combination of public relations techniques with the legal process.
·
First,
a definition: by public relations I mean the method and techniques of successful
advocacy, mainly through the news media, to gain public awareness and support
for your client’s position on either an existing public debate or a debate you
are trying to generate.
·
The
combination of legal advocacy and advocacy in the court of public opinion is
premised on the view that success in one arena influences the potential for
success in the other. Who could not
have been struck by the power of public opinion in overturning an apparently
final and binding decision of the judges in last week’s Olympic skating
fiasco?
·
This
strategic combination of PR and legal also reflects some growing trends that we
will touch on throughout the presentation; these include:
1.
First, the days of legal processes confined to the courts with a docile
and unaware public outside have come to end.
Today, media coverage of legal proceedings is unprecedented. Ten years ago a member of the general public would have been
hard pressed to name a member of the Supreme Court; today they read their names
in the newspaper on a regular basis. In
an era of aggressive media competition and the rise of the Internet, a broader
public constituency is passing its own judgment on your client -- its
organization, its products and its services -- based on what they read and hear
about what’s happening in the courtroom.
2.
Second, as noted by Jeffrey Simpson in his new book on Canadian politics,
Friendly Dictatorship, individuals and organizations out of dissatisfaction with
the formal politics of parliament, are increasingly going to the court and the
media to advance their interests.
The
Charter of Rights and Freedoms has likely had something to do with this as
recourse to the courts has become increasingly popular in recent years.
At
the same time, Canadians are turning their back on parliament as suggested by
low voting turnouts and a general dissatisfaction with our one-party state.
Instead,
interest group activism and your ability to get your grievance covered by the
media is the new political tactic. Putting
these two trends together, those that command effective media campaigns
combined with legal action are increasingly those who are establishing the
public agenda in Canada. Being
able to successfully work public opinion in concert with legal action is
increasingly the preferred route to assert individual and group rights.
The Dance
·
From
the standpoint of a client, my focus is on achieving the business objective not
on the purity of any one discipline.
·
In
today’s environment, where the legal process cannot ignore new
accountabilities created by the media which my opponents will take advantage of,
PR and legal must work together harmoniously to achieve the objective.
·
In
any litigation I undertake, I insist upon a cohesive team of lawyers and PR
professionals working together on an integrated strategy to take advantage of
opportunities and to anticipate challenges from my opponent.
·
In
the one-two punch of legal and PR, the “dance” is working the two
disciplines together, knowing which card to play and when to play it.
·
So,
how does the dance work?
·
First
of all, you need to shape your legal arguments that will suit a PR campaign:
that is, your legal argument has to be conceptually consistent with a matter of
public interest that will promote positive and supportive media coverage of your
case.
·
That
means using your PR advisor to help you shape your arguments and case in such a
way that the Globe and Mail will be predisposed to write a favourable editorial.
·
Structured
in such a way, your legal case becomes the substance of your public
communications strategy.
·
In
this way, the PR and legal processes are complementary and not separate tracks
running to the exclusion of the other.
Harnessing
The Power of Public Opinion
·
We’ve
talked about some broad trends that are marrying PR and legal.
Let’s look at some specifics as to why it is important.
The Business Objective
- A
simple observation: you are not achieving your business objective if you win
in the court of law but lose in the court of public opinion.
- Successful
litigation over a patent infringement or misleading advertising case is cold
comfort if the battle has been lost in the marketplace.
- Bayer
recently found that out when, although they held the patent to Cipro in the
recent anthrax controversy, they could not sustain public support for their
position, thus allowing the federal government to override the company’s
legal position.
- If
your legal position is not compatible with public opinion or the public
interest, you have one of two choices: either go out and launch a PR
campaign to build a supportive public opinion environment or shape your
legal position to be acceptable to public opinion.
·
The
impact of public opinion can be both immediate, such as when it translates into
consumer purchase behaviour, or longer term, when it translates into political
developments.
·
Earlier
failures in the handling of the GMO issue -- spectacularly demonstrated by
Monsanto’s legal action against a Saskatchewan farmer – has bred long term
social political resistance that could be leading to irreversible regulatory
impediments.
Out of Court Settlement
·
Most companies have, as their greatest fear, negative media
coverage and will do anything to avoid it.
·
The prospect of negative media
coverage is both something to exploit and something you have to watch out for in
the event your adversary is more skilful -- and less fearful -- than you.
·
The prospect
of sustained negative media surely proved effective in making the IOC move
swiftly last week; sustained controversy threatened to ruin the entire Olympics.
·
The prospect of negative media
coverage also raises the question of your increased vulnerability in the
courtroom after you have been crucified in the media.
·
What is the
impact on a judge of a plaintiff or defendant who comes into the courtroom with
a trail of bad publicity behind him or her?
Public
Interest and Accountability
·
A case that
symbolizes or in some way stands for a matter of public interest has a more
compelling claim in the courts than one that does not.
For example, Unilever has been fighting restrictive margarine legislation
for years.
·
Fighting
restrictive margarine legislation in Canada fostered by the lobbying strength of
the dairy farmers is not simply about a company’s right to not be harassed by
protectionist legislation.
·
It
is also about eliminating barriers to free the movement of goods in Canada
consistent with our free trade commitments without artificial provincial
requirements that require margarine to be white or orange in one province.
·
It is also about a consumer’s
right to choose and not have governments penalize one perfectly legitimate
product to the benefit of the other.
·
Prior to the
Quebec Superior Court challenge of that province’s margarine colour
restriction, we created an enormous publicity campaign to underscore the broader
public principles at play. This
included the unprecedented step of advertising the trial the week before through
an extensive radio buy on political and public affairs programming.
·
The point was to ensure that the court
was aware of the broader public interest issues that were at play and to
create a sense of broader public accountability.
Indirect
Benefits
·
In addition
to those for harnessing PR and legal, there are a number of indirect benefits.
·
The residual
perceptions among the public of your legal action can have long-term
consequences.
Consumer
Awareness
·
Building
consumer awareness for your organization’s long-term benefit: I refer to the paper towel wars of a few years ago.
·
A media
campaign launched coincident with the advent of a lawsuit over misleading
advertising gave Scott Paper, in its dispute with Proctor & Gamble (P&G),
more attention and interest in its claim than any amount of advertising could
have done.
·
P&G had
supported its Bounty brand with an enormous TV media buy which Scott claimed was
misleading.
·
By taking
advantage of the top-of-mind awareness that P&G’s own advertising had
created, the legal challenge became the subject of media stories reaching over
10,000,000 people in Canada and the United States.
In science class, children were conducting their own experiments to
determine which paper towel manufacturer was telling the truth in its
advertising.
·
In such a
case, Scott may have won a new generation of consumers.
Media
Awareness
·
In all of
this, what is critical is to build your media profile with the objective of
establishing a reputation of integrity.
·
Always take
the high road and don’t follow your opponent into the gutter.
·
If you built
your case on an appeal to the public interest and a strong moral basis don’t
abandon that positioning because of your opponent’s negative tactics.
·
The
awareness that you build and the reputation that you establish provide you with
a platform to influence future issues.
·
Again,
Unilever’s profile on the margarine issue has led to numerous media
opportunities to advance the agenda and opportunities to lobby governments with
an effective profile.
Potential
Adversaries
·
Your ability
to influence and command public opinion also places a discipline on potential
adversaries on future issues.
·
Litigation
and PR campaigns launched by Unilever to fight discriminatory margarine
legislation have had the added benefit of alerting the dairy lobby that the
company will fight for its interests.
·
Where the
dairy lobby chooses to fight to preserve the protectionist regime they have
enjoyed for 50 or more years, they know Unilever will employ the tools of
successful advocacy – both legal and PR – to counter argue.
·
Successful
litigation at the Canadian International Trade Tribunal combined with a PR
effort that secured supportive editorials in the National Post helped Unilever
to fend off efforts by the dairy lobby to impose tariffs on butteroil sugar
blends, an ice cream ingredient.
·
Unilever’s track record also
helped the company fighting for key provisions in the recently passed Bill 87 in
Ontario which will allow the marketing of dairy/vegetable oil blended spreads
which have historically been banned in the province.
Alliances
and Partnerships
·
The same principle – establishing a
successful advocacy reputation – also enables you to build supportive
alliances and partnerships to fight for common goals.
·
By gaining
favourable media attention in Quebec for the margarine colour fight, it was
relatively easy to secure the partnership of margarine competitors – Ault (now
Parmalat) and Margarine Thibault – in an advertising campaign focused on the
issue of consumer choice.
·
Had a track
record of successful publicity not been established, risk-averse competitors
would have been less likely to join the fight.
·
For Unilever, building a coalition
broadened the fight and the integrity of the argument by expanding the advocacy
beyond just one player to an entire commercial sector.
Benefit
of the Doubt
·
Certain
media realities favour the aggressor in a PR/legal campaign.
·
Plaintiffs
have a natural advantage in the context of a legal/PR campaign.
The media will cover the allegations in the statement of claim and
studies have indicated that people take from such coverage, that the defendant
is likely guilty in some way.
·
The story of
Guy Paul Morin sadly illustrates this point.
·
The
observation underscores the value of being the aggressor in legal action
combined with a PR campaign.
·
On the other
hand, the media will be less predisposed to condemn out the outset, a defendant
who is a known entity with an established track record and image in the media
Marriage
of Legal and PR
·
Let’s look
at some basic concepts to affect this marriage.
The
Statement of Claim
·
One point
that has to be stressed repeatedly is to run
your PR campaign as a separate stream of activity divorced from the legal stream
of activity.
·
The
statement of claim is the basis of your arguments and must work both for the
court and the media.
·
Your
statement of claim should be released to the media simultaneous with its filing
with the court.
·
While you
will issue a news release for media who won’t take the time to read a
statement of claim, serious journalists will want the actual court document to
prepare a story.
·
What this
means is that the first two or three pages of the statement of claim becomes
your news release targeted at, for example, the Globe’s editorial board.
Technical legal points should be moved to the latter half of the
statement of claim as much as possible.
24
Hour News Cycle
·
Once you
have engaged the media by releasing your statement of claim you have to be
prepared to stick with it – your action will cause a reaction for which you
must be prepared to capitalize on.
·
Practically,
what this means is that you must have done your advance PR work – just as in
preparing your legal case, most of the work to conduct a PR campaign is
conducted well in advance of any public act.
·
Typical
preparatory elements include:
o
Media training – learning the
unique requirements of the media interview and the important differences between
print and electronic interviews
o
Key messages – this is your top
two or three proactive messages that you need to learn to recycle in the context
of a media interview
o
Questions and Answers – this is
a key document developed well in advance that anticipates your adversary’s
position and questions that could come at you from any direction once you are on
the public stage.
Put
Opponents on the Defensive
·
Effective PR
campaigns are run like political campaigns – you execute during the day and
evaluate and assess tactical options in the evening.
·
A key point
of your evening analysis is to review media coverage and identify any hyperbole,
errors of fact, etc., made by the opponent.
·
Attacking
your opponent’s misinformation in the media is one of the best ways to build
your integrity, raise questions about your opponents and get your message out.
You
as Defendant
·
If you are
on the other side as defendant, you need to resist the temptation to just
respond to allegations in the media.
·
Just as you
would if you were the plaintiff, prepare your PR campaign in advance and tell
your story through repetition of your key messages.
Dealing
with Negative Media
·
One of the
most challenging circumstances a company faces is when it is the subject of
negative media.
·
The
temptation is to respond in kind – and it must be resisted.
·
Your
integrity is everything and you must play for its long-term preservation.
Trying
Your Case in the Media
·
There are those in the legal profession
who may say that joint PR and legal campaigns can lead to a criticism from the
court.
·
A few things
can immunize you against such criticism – establishing a pattern of public
communication early that secures your right to defend your public interest.
·
Unilever was
able to conduct a radio advertising campaign right up to the day of trial in the
Quebec margarine case because it had built a public debate in which the company
had every right to engage.
Tactics
and Tools
·
In a hearing such as the Walkerton
enquiry, you potentially enter into a protracted period where your case can play
out day after day in the courtroom and the nightly news.
·
In such
cases, you will need to expand your resources to include public opinion polling
which should give the ability to poll during the evening and adjust your message
strategy accordingly for the next day.
·
A variety of techniques can help
you identify not only how people are attitudinally predisposed but also what
messages would cause them to change their view in your favour.
Conclusion
·
The main
point on which we conclude is to emphasize that today the rules of the game are
being written by those who effectively manage the court of public opinion and
the legal court.
·
It is
imperative that legal and PR work together to achieve the business objective and
that means:
o
Working synergistically and
concurrently;
o
Engaging a PR Advisor up front to
work with the legal team;
o
Managing your media profile for
the long term; and
o
Recognizing once you enter into this new sophisticated game of
legal and PR you need to manage the dance to the end.
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