The Power of a Compelling Narrative in Litigation with Phil Goldberg, Office Managing Partner at Shook, Hardy & Bacon
In this episode of On Record PR, Gina Rubel goes on record with Phil Goldberg, Office Managing Partner at Shook, Hardy & Bacon, to discuss the importance of crafting compelling messaging around litigation. Phil manages Shook, Hardy & Bacon’s Washington DC office, and he is co-chair of the firm’s public policy practice group. He has more than 25 years of experience in high-stakes and high-profile liability-related public policy, public affairs, and public relations issues. His practice involves counseling businesses and their trade associations on some of today’s most cutting-edge liability issues.
What are some of the biggest changes in the way litigation is waged in the United States and why does it matter?
There has been a lot more litigating outside the courtroom, whether it’s public relations or government relations, in order to leverage what happens inside the courtroom. The interdisciplinary nature of litigation and public relations comes together in a lot of high-profile cases, and a lot of it has to do with how cutting-edge the liability theories are, trying to make sure from the plaintiff side if they can get out there and define an issue. Even if the defendant has a legitimate defense, they may not even want to take the case to trial.
A lot of times these cases can be won or lost outside of the courtroom and in the public relations sphere. One of the things we’re seeing that is fundamentally changing litigation in this country is the use of third-party litigation funding. You have these hedge funds and investors who are investing money into developing litigations against large companies. They will fund all the TV advertising we see at 2:00 in the morning; that’s all being funded by these outside financiers.
They’re marketing litigation the way companies might market a product. They’re trying to get people to sign up for litigation, much in the way that public relations people help market products for their clients. It is changing everything about mass tort litigation because a lot of times the people who respond to these ads are not really injured. They never used the product, but a lawsuit gets filed in their name anyway.
With big litigations, there’s a lot of figuring out whether this is like cotton candy, where you put a little water on it and it all disappears, or if this is something that’s more real where the people actually have injuries for which the company might be responsible for. It’s changing a lot of the underlying assumptions about how the law works and how the public interacts with big litigations.
Gina Rubel: It’s interesting that you mentioned that, and I think it’s important for some of our listeners to understand that there’s a difference between public relations and advertising or marketing. For example, the advertising side is pay-to-play. Public relations is how you communicate a message. Generally, it’s strategy and how it gets perceived by public audiences, but it’s not necessarily pay-to-play.
In the litigation funding space, there’s a lot of pay-to-play. How do you combat that in the court of public opinion as a practicing attorney when you’re dealing with high-stakes, high-profile litigation?
A lot of it is trying to make sure that within the company, you have the legal department, the communications department, and the government affairs department all talking together. When you have these kinds of high-profile litigations, you need to have consultants like the outside lawyers, the outside PR firms who specialize in litigation public relations, and even some of the government affairs people all coordinated and rowing in the same direction because a lot of times the plaintiff lawyers are coming at these companies in these multidisciplinary ways and the companies have to respond through their multidisciplinary departments. If you look at it as just a legal issue and not a public affairs or government relations issue, you’re missing the boat.
You might be harmed not effectively combating some of the pressures that are facing the company in these other areas. And if you look at it as just a public relations issue, that may not be good for legal. You have to make sure that everybody’s talking together and working to defeat some of the messages that are coming at you in the litigation.
Gina Rubel: One of the things I found most refreshing when you and I were introduced is that we think alike. You might have seen me smile when you said rowing in the same direction. I have been using that analogy for so long. What I think is important and I’d like some of our viewers to understand from your perspective is the intersection of the court of law and the court of public opinion and why it’s so important for us to all play together nicely. In other words, litigators, PR professionals, and government and public affairs people – why it’s so important for us to be communicating together and collaborating early on.
Phil Goldberg: I’m old enough to remember that there was a book called Men Are from Mars, Women Are from Venus. In some ways, the lawyers are from Mars and PR people are from Venus, and we’re not talking the same language. In the court of law, for example, you have a right to remain silent. Everyone knows that from watching Law and Order. If you remain silent in public, in PR, you’re assumed to be guilty. You don’t have anything to say to defend yourself.
You can go through a lot of what lawyers would say, like “We’re not going to defend this case in the media,” and the PR people say, “We don’t want you to defend your case in the media, but we have to talk about the underlying issue. We have to talk about what’s going on here. What your consumers care about. What your business partners care about. It’s not litigating your defenses.”
Once you can break that down and help the lawyers and the PR people understand that they’re on the same side and trying to achieve the same goals in two different environments, then you can get everyone rowing in the same direction. So many times you have people with these preconceived notions, whether it’s in legal or PR, that are just antithetical to each other, but they don’t realize they’re really not antithetical to each other. They have to realize they’re working in different arenas. They’re working in different ballparks. What works in one ballpark is not going to work in the other one.
If you were working on high-profile litigation and you didn’t have seasoned people in your law firm who understand PR and the court of public opinion, what would you look for in an outside consultant or agency to make sure they can speak the same language?
I used to work in public relations. I used to do litigation PR before I joined the law firm. This was 20-something years ago. I was in that position and had lawyers on the other side with the client trying to make sure that we were understanding each other. I do like to see lawyers in PR firms. I think that’s very helpful. I’m not saying that you can’t do a good job at litigation PR if you’re not a lawyer; you certainly can. You should have somebody who at least understands some basic concepts of how liability and legal systems work and what just won’t fly when you’re putting together public statements.
I remember one time as a lawyer, a client of the firm came to me and said, “We’re getting these statements from these PR firms and they’re just not right. Can you take a look at them?” It happened to be a friend of mine who was one of the PR people working on this. She wrote a great statement, but there were four or five words in there that I just tweaked because I know what lawyers will be sensitive to and what they’ll freak out about. I sent it back.
They’re like, “Oh my God, this is perfect. This is great.” Actually, it was great before too. It’s just that she didn’t know how to avoid some little hot-button issues or words that seemingly create a standard. “Health and safety is our number one priority” is different from saying, “Health and safety is one of our highest priorities.”
When that statement gets put up on a bulletin board in trial, they’re going to say, “You said this was your number one priority, but over here you have a memo saying, ‘Let’s look at the finances of this versus that decision.’ Was that your number one priority in that?” If you don’t use language like that but say, “We put a lot of emphasis on safety” or “One of the core ethos of this company is health and safety,” you’re saying it in a way that you’re not going to regret later or that could be used against you because of how you said it, when you’re conveying the same thing either way.
What are some of the things that you’ve seen change in the way we handle litigation today? Is there anything that’s different than you would have seen 10-20 years ago?
There’s an understanding among lawyers who appreciate that when you’re writing a brief and arguing a case in court, it’s not just about some dry legal analysis. It’s about trying to connect with the judge, the jury, and the people who are paying attention to this litigation in a way that’s meaningful to them, so that they feel good about whatever outcome you’re asking them to reach.
About 15 years ago, I was talking with a client. They asked me about their briefing in the case. I said, “To be honest, if you pick up the plaintiff’s brief, the first two pages read like a press release. They’re bringing you to their side. They’re connecting with you. They’re pulling your heartstrings. They don’t get to the legal issues until page three or four, if they ever do. They’re trying to persuade you by understanding their story. You pick up the defendant’s brief and it says, ‘Didn’t do it. Not so, wasn’t us,’ and it just goes through the rest of it.”
I said, “You have a compelling story to tell about why you didn’t do what you’re being accused of. You have a compelling story to tell about what this company is about, and nowhere does that appear in the first two pages of the brief. But when the reporter picks up the plaintiff’s brief and the reporter picks up your brief, they’re not going to get any sense of this. All they’re going to hear is this compelling story on one side and ‘didn’t do it’ on the other. They’re going to write a story that way.”
I was working with a team of lawyers on an appeal and we brought the PR people in, maybe not at the beginning, but when the initial draft of the brief was done. We sent it to the litigation PR team that we were working with on a high-profile case, and we asked for their thoughts about how to strengthen the introduction. I don’t think that would have happened 15 or 20 years ago. I think there’s a greater understanding now that you have to tell a compelling story, even if you’re just talking to a judge, but particularly if you’re talking to appellate courts and the public.
Gina Rubel: All courts. If it’s getting filed and it’s not under seal, all courts. It’s so interesting you say that because I can go back 20 years and say that I was handling a high-profile qui tam case. I was on the PR side, hired by the law firm representing the client, and said exactly that. The law firm was like, “Pleadings aren’t meant for the media,” and it was so frustrating. This was an Am Law 100 firm, and the idea was pleadings are just pleadings. They never tell you in law school that pleadings are accessible to the media. They can get them and will get them. Reporters know that we represent a certain client, and they will literally within hours of a pleading being filed reach out and say, “I saw that your client filed X. Do you think they would be willing to have a conversation about Y?” You would think you should be surprised. That doesn’t surprise us. We’re prepared for that in advance. I can tell you 90% of high-profile litigators don’t prepare in advance and do not use their pleadings as a tool to convince or sway the court of public opinion, and they’re accessible. There’s nothing in Rule 3.6 that says they’re not accessible. Pleadings are important to journalists in particular, and we’ve often said, especially in defense matters, “While we can’t speak on that matter publicly because of the rules of ethics, we will be filing our pleadings, and the answer will be in there.”
Phil Goldberg: I think that’s right. If you can provide the media with some good sound bites or snippets in your opening introduction to a brief, then you don’t have to comment on it afterwards. You’ve carefully crafted those words and it’s gone through the vetting process. It’s so much easier than talking about the case.
Of course, in my world the plaintiff’s lawyers are often very happy to talk about a case, leak documents, and do all the things that a lot of aggressive plaintiff lawyers will do, and that’s fine. We expect that, and we understand that that’s going to happen from time to time. But from the defendant’s side, it’s how we respond that matters. There seems to be more in the past the notion that the sin of commission is worse than the sin of omission. If we say something and it goes south, then that’s on us. But if we don’t say anything and we ignore the reporter and there’s a bad story, then we just get to blame the reporter, the plaintiff’s lawyer, and everybody else. It’s not our fault. I think today there’s a great understanding that if we don’t manage the litigation stories and it’s bad, that is also a sin on us.
What’s your take on people saying “no comment”?
I think “no comment” means that you come across as sounding like you have something to hide. It comes across as sounding like you’re not confident in your position. I think there are very constructive ways to talk about a case and your company or yourself in a way that is effectively not commenting on the litigation, but it’s providing a comment for the people who you care about. When there’s a story being written about your litigation, there are people you care about who are reading that story. They’re going to learn about you and this dispute based on what they read.
Do you want them reading only the other side’s point of view, potentially getting things wrong? Or do you want them to read things that can convey a message about who you are as a company and why this issue is important to you and others in your situation, even if it’s 80% the plaintiff lawyer’s view and some things are wrong? I think that if you can do that, you’re not commenting. It’s technically no comment, but it’s a comment that can go into the story that can inform people that you care about.
Gina Rubel: I agree 100%. Saying no comment makes me picture the person running out of the courtroom with a briefcase hiding their face. It’s perceived as guilt and so on either side, just don’t do it.
Tell us about an interesting case that you were involved in that most people wouldn’t know about and why it’s important.
With my policy practice, we often get involved in these cutting-edge legal issues as they’re playing out in the courtroom. Sometimes there are people who care about a political issue, but they turn it into litigation. We end up dealing with that. One I find interesting that I’ve gotten to work on over 20 years is animal damages and injury cases because there is a group of people that want to inject emotion-based damages so that owners can get emotional harm damages for their pets, often even more than they can get for their own children or certainly more than they can get for their human best friend.
While that sounds really interesting to a lot of pet owners like myself, the last thing that’s good for our pets is to drive up the cost of pet care and pet products and services so that owners can get liability money out of that system. Think about the human healthcare system, where liability drives a lot of decision-making. If the veterinary care system was like that, that wouldn’t be good for our pets. The pets don’t get the money. As owners, we get it for our emotional harm, but if it means that pets don’t get care because veterinary care becomes more expensive due to having to pay out these large awards, pets are going to suffer.
It’s kind of like these PR issues we deal with all the time where something may sound good at first, but when you truly understand it, you come to the opposite conclusion. I actually filed two briefs on this issue in the last month. It’s certainly an interesting issue these days.
Gina Rubel: I definitely want to learn more about that at some point. Our daughter is in vet school at the University of Pennsylvania. We’re so proud of her and our son who’s in his senior year of college. One of the things that we’ve learned is that the veterinary community has one of the highest rates of suicide, and I’ve seen how abusive pet owners can be to the people in veterinary practice and how there’s so much blame placed on the care providers and yet very little on the owners taking responsibility. It’s fascinating because I’m seeing it firsthand as the mother of a care provider in the pet world. It is a huge issue, and I’ll tell you you’re doing more than just protecting pet owners by caring about the cost of the care.
Phil Goldberg: It’s intensely emotional for everybody.
Gina Rubel: You’re also doing work that’s in the best interest of the care providers, so I want to say thank you for that. A lot of people don’t know that it has one of the highest rates of suicide in any industry.
Phil Goldberg: It’s also one of the most well-respected professions. When you look at these surveys of how much esteem people have for certain professions, the veterinary profession is always high at the top because they care a lot about pets. That’s why they’re doing it. Unfortunately, pets can’t tell you what’s wrong, so it is very different than human healthcare in that regard. Having to understand the budget of the owners – the veterinarians that we work with often tell us that they’ve put pets down over procedures that will cost $500-600 because the owners say, “We can’t afford that, but we don’t want our pet to suffer.” It’s an older dog. That can’t be the right answer either. It’s a very difficult and emotional situation in a lot of these cases.
Phil Goldberg
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