Maintaining Privilege: Litigation Communications


Establishing privilege between a legal team and a litigation communications team is only the first step. Before you can start to work, the following four best practices must be put into place:

1.    Establish clear communications channels for exclusive use by the legal and communications teams and exclusively for the case/client in question.

2.    Identify all written communications with an “Attorney-Client work product” stamp.

3.    Keep it clean:  Only the attorney and the communications expert should meet, talk, email, converse. Neither the communications expert nor any members of the litigation communications team should ever directly engage with the client.

4.    Prevent information leaks: establish a process (examples: automatic expiration dates for e-files, shredding practices for paper documents) for secure disposal and destruction of all written communications.

Are you an attorney who would like to learn more about setting and maintaining the privilege between your communications experts and the legal team? Reach out to carrie@anachel.com

ANACHEL Communications specializes in high-profile litigation, crisis and strategic communications.  Our media training program and bespoke reputation management practitioners help our clients navigate the narratives when it matters most.

Establishing Privilege: Litigation Communication

Strategic communications efforts such as media outreach, publication of OpEds and owned media/social media activity is legal so long as these efforts serve the overarching legal strategy.  However, privilege in litigations communications is not a given and must be established. In Calvin Klein Trademark Trust v. Wachner, privilege was not granted in part because the law firm’s client had a preexisting relationship with the strategic communications firm where it also performed public relations services not related to litigation.

So how is privilege defined, and why is having it so essential to litigation communications strategies? In the law of evidence, a privilege is a rule of evidence that allows the holder of the privilege to refuse to disclose information or provide evidence about a certain subject or to bar such evidence from being disclosed or used in a judicial or other proceeding (Wikipedia).

Privilege between the legal team and the litigation communications team is vital and can be established by employing these three best practices:

1.    When initiating the engagement, the contract should be between the law firm and the agency, like us. Not the client.

2.    The contract should clearly state that the purpose of the work is to provide “expert” strategic communications advice for litigation or in anticipation of litigation.

3.    The scope of the work should use specific wording that connects the communications efforts to the legal strategy.

Would you like to know more about setting and maintaining the privilege between your communications experts and the legal team? Reach out to carrie@anachel.com.

ANACHEL Communications specializes in high-profile litigation, crisis and strategic communications.  Our media training program and bespoke reputation management practitioners help our clients navigate the narratives when it matters most.

Hiring a Media Expert for Litigation Communications

“[T]he ability of lawyers to perform some of their most fundamental client functions…would be undermined seriously if lawyers were not able to engage in frank discussions of facts and strategies with the lawyers’ public relations consultants.” — Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York regarding grand jury.

Because there are strategic aims and sensitive rules around disclosure during court proceedings, it takes more than a general knowledge of public relations strategy to manage litigation communications. Effective litigation communications requires a professional who understands the legal process, knows how to read filings and has case-specific/litigation experience. 

The ideal litigation communication media expert believes in the power of relationships: he/she will become a part of the legal team, working in lockstep with the lawyers, and will provide the team with access to media and journalists who will be covering the case.    

When hiring a media expert to handle litigation communications, ask about data forensics as it is essential they are up-to-date on the latest developments. The ideal partner will know how listening tools work, engage in active monitoring and analysis, understand how both reporting and rumor are impacting a case, and proactively recommend public appearances and information release.

ANACHEL Communications specializes in high-profile litigation, crisis and strategic communications.  Our media training program and bespoke reputation management practitioners help our clients navigate the narratives when it matters most.  To learn more about our litigation communications practice or book a confidential consultation to learn how we can help, feel free to email carrie@anachel.com

Helping Litigators Win in the Court of Public Opinion

“A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.”

Supreme Court Justice Anthony Kennedy re Gentile v. State Bar of Nevada

Is it inappropriate to engage a communications professional to influence the outcome of the court case by encouraging early or favorable settlement or by pressuring the prosecution into bringing lesser or no charges?  Absolutely not!  In fact, it would be unprofessional not to: every case or dispute is tried in front of a judge within the legal system AND in the court of public opinion on social media and influencer circles.  

All too often, perceptions become reality.  A case could be settled in favor of a defendant but, due to a poor communications strategy before or during a trial, the defendant’s reputation could suffer permanent damage, resulting in financial and opportunity loss.

The litigation communications experts at ANACHEL Communications specialize in high-profile reputation management.  We carefully craft media relations strategies for our clients so that when litigation is resolved, careers and livelihoods continue to thrive.

If you’re an attorney who would like to hear more about our approach to litigation communications or book a confidential consultation to learn how we can help your practice, feel free to email info@anachel.com. 

Litigation Communications v. Strategic Communications

Litigation Communications is a specialty within strategic communications. Litigation communication strategies are laser-focused plans created in lockstep with legal strategies prior to, and throughout high-stakes legal disputes. They are designed to establish and protect proper narratives and defend an individual, company, or organization facing a legal action.

As public exposure of court cases has increased, plaintiffs and prosecutors utilize the media to get their side of the story out and to sway constituents’ opinions. It has created a massive need for experienced litigation communications for the following reasons: 

  • there is a greater focus on the legal implications of any communications,
  • there are strategic aims and sensitive rules around disclosure during court proceedings, and
  • digital publishing and social media platforms have hastened the proliferation and permanence of information and opinion, both positive and negative.
  • a corporation or individual may win the court of law but lose in the court of public opinion causes irreparable financial and brand damage.

ANACHEL Communications specializes in high-profile litigation, crisis and strategic communications.  Our media training program and bespoke reputation management practitioners help our clients navigate the narratives when it matters most.  To learn more about our and book a confidential consultation to learn how we can help, feel free to email info@anachel.com

What’s on the record? A guide for executive interviews

Business executives are often pressed into service to speak to reporters about high stakes business issues. This can be part of a sound strategy to set the record straight and communicate with primary audiences. After all, the chief executive is where the buck stops and often a company’s most credible voice. However, it’s a dangerous proposition if the executive doesn’t understand the ground rules of the media road.

The ground rules are often the most talked about part of our media training sessions. Before engaging any reporter the executive must understand the difference between “on the record” and “off the record” and everything in between. Here’s a rundown of the ground rules for speaking with reporters.

On the record – Everything said to a reporter is just that, “on the record.”  The reporter is free to report everything said with direct attribution to the executive spokesperson. This is the most desired situation for the reporter because he or she can substantiate their reporting with direct quotes. Additionally, most editors and publishers are demanding on record quotes because they make a far more credible news stories. In this day of so called “fake news,” the media are fighting to protect their authority as a trusted source of news resulting in greater transparency.

Off the record – None of what is said can be used in anyway in any news story by the reporter. Reporters hate “off the record” because what is said to them is pretty much useless. There are a couple points that all interviewees must be aware of before attempting an “off the record” discussion with a reporter. First, and this is vitally important, “off the record” cannot be claimed retroactively. This is a classic mistake. The spokesperson, while engaged in an interview, provides a great deal of information and then says, “…but that is off the record.”  Nope. “Off the record” must be established and agreed to by the reporter in advance of what is said.

The other aspect of “off the record” is that while the reporter cannot print/broadcast the information, there is nothing stopping the reporter from getting a different source to put the same information “on the record.”  So, proceed with caution. We regularly advise clients, “If you don’t want it reported, don’t say it.” In other words, it’s usually best to avoid “off the record.”

On background – Everything said to a reporter can be reported, but there is no direct attribution to the spokesperson. Spokespeople often choose to go “on background” because they might not be authorized to speak on the record or for other reasons wants to shield the source of the comments. Quotes “on background” can easily be recognized in stories that include quotes from unnamed sources. For example, you might see something like this in a news story: “The president was very upset about coverage in the mainstream media,’ said a White House source.” This quote is attributed to an unnamed source but the reporter tells you he or she works in the White House, which would suggest the person has direct knowledge of what the president said. There are different levels of attribution. Reporters, and their editors, want to describe the source as specifically as possible. Attribution such as “a White House source” is pretty vague, while “…according to ‘a member of the president’s cabinet,” is much more specific.  Attribution is also something that must be clarified and agreed to by the reporter before the interview starts.

Deep background – Is the same as “on background” except for attribution cannot connect the source in anyway to the story.  Again, deep background must first be agreed to by the reporter. Whereas “on background” the reporter might attribute a quote to a “White House source.”  Under the rules of “deep background” the reporter can only say something like, “…according to a source familiar with the situation.” The farther away attribution gets from the name of the source the less compelling news stories received by the reading public, which makes editors loath to use sources on “deep background.”

Thank you for this great piece by Ramsey Poston, Anachel Partner and founder of Tuckahoe Strategies.

For media training and media strategies, we’re here for a concierge consult. Reach out at info@anachel.com.

Creating Effective Core Messages

How are Messages Created?

The message development process cannot be done in a vacuum.  It requires time and the direct input from the C-suite and obviously must be consistent with the organization’s vision and overall strategy.  The best way to generate key messages for an organization is by conducting a facilitated SWOT analysis to discuss the organization’s strengths, weaknesses, threats and opportunities.  

Image result for swot

The SWOT Analysis is a simple but useful framework for analyzing the Strengths, Weaknesses, Opportunities and Threats. The strengths and weaknesses are internal factors, while opportunities and threats are external factors that can have an effect on the overall business. Ideally the weaknesses will be offset by the strengths, the threats should be addressed with a specific crisis protocol and there should be a plan to take advantage of the opportunities.The SWOT Analysis delves into each of the four areas by asking several interrogative questions similar to those provided below:

Strengths:

  • What are organization’s strengths?
  • What does the organization do better than others?
  • What makes the organization’s mission unique?
  • Which people in the organization bring strengths?

Weaknesses:

  • What are the organization’s weaknesses?
  • How can the organization minimize or eliminate the weaknesses?
  • What do competitors do better than the organization?

Opportunities:

  • Identify the organization’s underserved audiences/customers
  • Which strengths could be utilized better to eliminate current weaknesses and/ or threats?
  • What are the changes in regulations or mindset that can help the organization better achieve its mission?

Threats:

  • Which emerging competitors pose a threat to the organization?
  • How could current or future government regulation affect the organization’s mission?
  • How has the media negatively covered the organization?

The Core Message

When the SWOT is completed there should be ample information to create core messages and supporting proof points. Below is an example of a message about March Madness and how messaging could be used to describe it. The primary message is concise, informative and declarative. The proof points support the primary message with facts and useful information.

Key message:

The NCAA Division I basketball tournament known as “March Madness” is the best competition and most enjoyable event in all of sports.

Proof points:

  • All 68 teams have an equal opportunity to win the championship.
  • To win the championship, the team must win six straight games.
  • The tournament has compelling storylines and buzzer beaters over nearly three weeks.
  • It has to be the greatest, it’s called March Madness!

Message Deployment 

Once the message development process is complete there should be three or four core messages that appear in all of the organization’s internal and external communications.  Message consistency is essential to convincing audiences to take positive action. Messages are not just for the media. The organization’s core messages should be adopted by the marketing team, used in advertising, social media and executive presentations.  

Thank you to Anachel Partner, Ramsey Poston for this insightful blog.

For a concierge consult, we’re here for you. Reach out at info@anachel.com.