© 2014 The Texas Lawbook.
By Mark Curriden – (August 14) – Attention lawyers, general counsel and business executives involved in high stakes litigation: “No comment” just doesn’t cut it anymore.
In fact, it may cost you the company.
So says Chrysta Castañeda, a former large law firm litigation partner who recently opened the downtown Dallas office of Canterbury Communications, a litigation support company that works with lawyers and clients facing high stakes litigation or possible governmental investigations deal with issues involving the news media and public perception.
An experienced trial lawyer, Castañeda witnessed firsthand the damage to public confidence that can occur when attorneys and businesses take the decades-old approach that they will only try their cases in court and not in the news media.
The result: The client may win the battle in court but lose the war by suffering devastating blows to the reputations of the company and its leaders, diminished investor and shareholder confidence in the business and even a substantial loss of its consumer base.
“In high profile litigation, there may be many audiences with an interest in the proceedings, including the judge, jury and appellate courts, which the lawyers are carefully watching, of course, but also employees, shareholders, customers, suppliers, regulators, and, of course, the public and the media,” says Castañeda.
“The trial lawyers aren’t engaged to communicate with that whole spectrum and need to focus on what happens in the courtroom,” she says. “That’s why it helps to have an outside consultant who understands the legal proceedings, and who can help communicate to those other stakeholders.”
There are a handful of other communications companies that work with lawyers and companies involved in litigation crisis situations. The most prominent in Texas is Androvett Legal Media, which was started two decades ago by lawyer-turned-journalist Mike Androvett. His firm, which has offices in Dallas and Houston, represents more than a dozen law firms across the state.
Castañeda brings a unique perspective to the market: two decades of representing corporations as a lawyer at large, full service law firms. She was a partner at Locke Lord from 2003 to 2013. Prior to that, she practiced at Jones Day and Arter & Hadden for a decade.
A 1991 graduate of the SMU Dedman School of Law, Castañeda says Canterbury focuses on the intersection of law and communication.
“We see a growing market for communications advisors who are trained both in the law and media relations, as there is an increased sensitivity to how legal positions play out in the court of public opinion,” she says. “As a recent example, the expert who testified about the ‘affluenza’ of a teenaged driver charged with negligent homicide dramatically impacted both the fate of his client and that of the judge hearing the case, and set off a media firestorm.”
Castañeda says she has experienced situations in which trial counsel are constrained in serving as spokespeople because of ethical limitations under state bar rules or because judges have expressed displeasure with advocates talking to the media.
At the same time, she says, clients have a constitutional right and deep need to communicate publicly about legal issues.
“Educating a lay spokesperson about complicated and evolving legal positions in a time crunch is also a difficult proposition,” she says. “Understanding both the legal and communications needs of the business is critical to successfully handling high profile litigation and crises.”
Castañeda says corporate thinking on how, when and whether to apologize and accept responsibility for an accident or product failure is always evolving.
“Recent examples are GM’s recalls and the BP Macondo spill,” she says. “Both companies have publicly acknowledged their responsibility and have set up compensation systems, yet the systems they established to help people and avoid litigation are never deemed sufficient by the plaintiffs’ bar, who then lobby the media for publicity.
“Not every problem of this type can be solved by a unified legal and communications strategy, but it certainly helps to have one,” she says.
Castañeda says some lawyers and general counsel do not understand that the legal positions they take in a court case could impact public opinion.
“When your CEO or expert or your briefing attorney wants to say something clever from the stand or on paper, think about how the media or your other stakeholders will react,” she says. “When you are touting the competitive advantages of your business, think about how your claims will sound to regulators, such as the Justice Department.
“Do you want to see your own marketing statements in a pleading?” Castañeda asks. “When you are filing a new regulatory pleading, think about whether what you say will be used to help sway public opinion in your favor or be used against you by anti-corporate activists.”
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