By Mike Dolan

Law360 (July 28, 2020, 4:45 PM EDT )

Mike Dolan

In the early weeks of the COVID-19 pandemic, litigation dockets across state and federal courthouses were upended due to concerns about how parties could safely make court appearances.

Today, courts around the country have adapted by using various technology platforms, allowing counsel to appear by video and public access to streaming live proceedings. Indeed, at the end of May, the U.S. Supreme Court held its first remote oral arguments, and Texas conducted its first jury trial over videoconference.

While it is unclear how long these changes will need to stay in place or how permanent they will be once the crisis recedes, right now companies and counsel need to carefully consider the potential impact on their litigation communications strategies. At the same time, they must prepare for other elements of legal proceedings that are being impacted by the need for remote communications.

Certainly, call-in access to court proceedings is nothing new, and anything said in open court has always been on the record. But expanded virtual access to court proceedings may lead to greater public scrutiny of legal arguments and, subsequently, an increased likelihood that statements by counsel will jump from the courtroom to the court of public opinion — where they may be judged by different standards and in different contexts.

From a media perspective, lower barriers to attendance mean court proceedings are no longer the exclusive domain of local outlets, legal trade media or reporters who can be physically present. In this new environment, general business media, beat reporters and other interested stakeholders — including advocacy organizations — can directly observe proceedings that may not previously have been as accessible or on their radars. And, while some remote court services provide information about attendees, it may not always be possible to tell if members of the media are present in a virtual courtroom.

To manage this evolving landscape, in-house and outside counsel and communications teams will need to work together even more closely to help mitigate the potential that the arguments a company makes in court may alienate general audiences, conflict with the company's broader business narrative and values, or otherwise impact its reputation. Some key considerations for managing litigation communications in the current environment include the following.

Prioritize

First and foremost, legal and communications teams need to know whether court proceedings will be available remotely (and over what platforms) in order to evaluate and prioritize planning around key milestones. Similarly, companies should put in place a process to identify and escalate sensitive or high-stakes proceedings, and partner with the communications team to plan accordingly. 

This process should, first, incorporate criteria for categorizing matters, including a system to designate cases as high-, medium- or low-priority based on their likelihood to generate negative attention from stakeholders or otherwise impact the organization's reputation. Considerations will vary depending on the nature of the business and issue at hand, but may include, among others:

• The size of potential damages;
  
  
• Allegations of death or serious injury;
  
  
• Claims regarding the safety or security of a product or service; and
  
  
• Allegations of malfeasance by the company or individuals.

The organization will also need a process for escalating the most critical matters to a designated group of senior in-house leaders of the legal team, who can help determine the necessity of communicating or otherwise managing the expectations of internal and external audiences. A small, predesignated group of in-house and outside legal counsel, communications teams and advisers, and any relevant subject matter experts should then partner on developing any necessary materials. With processes like these in place, organizations will be better prepared to deploy resources more effectively against the most critical matters.

Plan Ahead

For potentially sensitive matters, it will be especially important to prepare communications materials in advance — including scenario plans for various outcomes, media statements, Q&As and other relevant communications for use with key stakeholders — to help ensure the company can respond promptly to any developments or inquiries. Failure to do so may mean that the company's position is not adequately or accurately represented in press coverage, effectively ceding the media landscape to damaging allegations.

Get Aligned

While the legal strategy must take precedence, in virtual settings counsel will need to be even more sensitive to their dual role as lawyer and company spokesperson. For this reason, the communications and legal teams should partner to reach consensus on statements or language used in court that can serve to reinforce the corporate client's broader values, mission and vision.

Having a strong set of core messages that both the legal and communications teams can draw upon can help ensure that everyone is singing from the same hymn sheet, can respond quickly and accurately to breaking developments and media inquiries, and understands any relevant guardrails.

Engage Reporters

With broader access to legal proceedings drawing in new reporters, coverage may lack context, accuracy or nuance, which in turn heightens the risk that a company's stakeholders will be confused or otherwise negatively impacted by news about litigation. For that reason, companies may need to increase their efforts to educate reporters covering particular matters.

Walking reporters through key points of the litigation can help encourage coverage that is more balanced and informed. Conversely, there may also be pivotal moments in litigation where it makes sense to solicit media attention, in which case the ease of virtual access can be an advantage.

Monitor Coverage

It may not be possible to know in advance which reporters will follow a particular hearing. For that reason, it will be especially important to monitor closely for subsequent media coverage so that the company can correct any inaccuracies and help make sure that its position is reflected. To that point, it helps to have a member of the communications team monitor the hearing as it occurs so the team can accurately convey and confirm what happened, as necessary.

Beware Technology Issues

It is also important to recognize that the novelty of virtual proceedings may lead to missteps that can have a meaningful impact on perceptions of a case, whether it's a technical issue disrupting oral arguments, a hot mic picking up background noise, or a witness whose video presentation is not fully buttoned up.

For this reason, counsel should take care to make their own video appearances as effective and compelling as they would be in person, and to manage the optics around other elements of the litigation that may also need to be conducted remotely, particularly witness depositions.

As a threshold matter, as applicable, in-house and outside counsel should understand a company's technology policies, including restrictions on the use of certain platforms. While there may be little flexibility for court appearances, legal teams may be able to seek exemptions from corporate guidelines for particular uses.

In-house and outside counsel must also understand policies around sharing potentially confidential documents over virtual platforms and work with the IT team to identify potential solutions. These will be important considerations in planning for and supporting clear, accurate and seamless appearances.

Practice and Prepare

Counsel should make sure they prepare adequately for conducting remote appearances, including:

• Selecting a proper location that is quiet, well-lit and has an appropriate background;
  
  
• Optimizing the setup for best sound quality to avoid echoes, feedback or other interference;
  
  
• Testing equipment and technology platforms in advance to minimize the likelihood of disruptions;
  
  
• Making sure any appearance conveys professionalism and credibility, including by dressing appropriately, applying makeup to reduce shine, knowing how to maintain eye contact with the camera, using hand gestures as one normally would, and demonstrating proper video etiquette; and
  
  
• Practicing ahead of time to make sure that the legal team understands the basic features of the technology platform (for instance, how to share documents confidentially) and how the team plans to coordinate in real time.

Work With Witnesses 

Depending on the particular case, witnesses may come from anywhere across a company's operations, and individuals may have varying degrees of comfort and familiarity with virtual platforms — let alone providing testimony. Given the unusual circumstance of, for example, providing deposition testimony without counsel being physically present, it will be critical to work closely with witnesses ahead of time to make sure that they understand virtual protocols, have practiced on camera ahead of the deposition, and that their presentation will be professional and compelling in a court of law and before a jury.

In addition to the considerations outlined above, for depositions counsel should also contemplate coordinating on protocols for consulting privately, and understanding how to share documents with witnesses and opposing counsel.

Conclusion

While it is unclear if, how and when legal proceedings will return to their pre-pandemic format, one should assume these measures will be around for the foreseeable future. Taking the opportunity now to reinforce tight coordination between legal and communications teams, and building that muscle memory, can be a long-term benefit for companies managing high-stakes litigation.

---

Mike Dolan is managing director at Finsbury LLC.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

For a reprint of this article, please contact reprints@law360.com.