Four Trends for Engaging the
Court of Public Opinion in 2020
With a new year comes new strategies and tactics for advocating for your clients in high-profile legal disputes.
Beginning in late 2019, one of the largest and most profitable law firms in the world became embroiled in a high-profile legal dispute with one of its female law partners.
Interestingly, the aggressive public relations campaigns that both sides have been employing in the dispute, and are likely to continue employing if and when it heats back up, are indicative of four trends for 2020 (and beyond) that I see for attorneys’ efforts to engage the court of public opinion on behalf of their clients in high-profile legal disputes.
A few months ago, it was hard to avoid news coverage in the legal trade media of the legal dispute DLA Piper found itself in with a female law partner at the firm, Vanina Guerrero.
Guerrero alleged that a now-former male partner at the firm, Louis Lehot, sexually harassed her and assaulted her, and retaliated against her when she rebuffed his advances. Guerrero also alleged that DLA Piper failed to investigate her allegations and take them seriously because Lehot was a rainmaker.
This legal dispute has attracted an abundance of media and public interest, in part because the parties have employed uncommonly aggressive public relations campaigns in an attempt to win over the court of public opinion before any court proceedings get underway.
But if you take a closer look at how the parties have engaged the court of public opinion, you’ll see that the dispute serves as a bellwether for emerging strategies and tactics that savvy attorneys can employ—and savvy clients may demand—in high-profile legal disputes.
Trend No. 1: Parties’ public statements are getting fiery.
Public statements from parties regarding the legal disputes they’re involved in are getting more and more heated.
That is unquestionably because of what’s going on in Washington, D.C. these days and, more generally, the zero-sum culture and tenor of politics at this moment in time.
The same kind of scorched earth language that we usually see in the political realm—and that previously only made its way into legal disputes through words contained in court filings—is now moving into public statements made by parties to high-profile legal disputes.
We see this escalated tone in the Guerrero–Lehot–DLA Piper dispute. Lehot has accused Guerrero of “exploiting the #MeToo movement to cover up her own issues.” Guerrero’s attorney has said that “the era of DLA Piper protecting its male rainmaking partners at the expense of the physical and emotional safety of the firm’s female employees must come to an end.”
While these statements are not exactly the stuff of presidential tweets, they exemplify the trend of parties using increasingly pointed language in their public statements regarding their legal disputes.
Trend No. 2: Defendants are playing offense.
Defendants and their attorneys are realizing that they can short circuit the procedural advantage plaintiffs attorneys and prosecutors have in engaging the court of public opinion by playing offense as early as possible in their legal disputes.
Because plaintiffs attorneys and prosecutors typically control the news cycle through their court filings that kick off a civil or criminal proceeding, they have an advantage in shaping public perception of a legal dispute from the start.
Once defendants are on the receiving end of allegations in a civil or criminal court proceeding, it is difficult for them to tell their side of the story early enough for it to make a difference in the minds of the audiences they are trying to persuade.
But playing offense in a legal dispute by telling their side of the story allows a defendant and their counsel to limit the damage done to their case by this procedural disadvantage. And if done well—and early enough in the legal dispute—defendants and their counsel have a chance to persuade audiences who have not made up their minds about who is on the “right” side of the dispute.
In this context, playing offense means proactively repositioning a legal dispute in a way that paints a defendant in the best possible light. This often entails reframing the factual or legal allegations in a way that shows that the defendant did nothing wrong. Or, it could mean positioning the plaintiff as something other than the white knight the plaintiff claims to be.
We’ve seen this in the Guerrero–Lehot–DLA Piper dispute. From the get-go, Lehot and DLA Piper have attempted to show how Guerrero and other accusers are not above reproach.
From putting Guerrero on administrative leave as a result of harassment allegations made against her, to calling out a former ethics counsel at the firm for allegedly making “demonstrably false statements to a governmental tribunal” about the firm, to claiming Guerrero “was a willing participant in a lengthy emotional flirtation with Lehot that she orchestrated to advance her career,” DLA Piper (and Lehot) have forcefully rebutted Guerrero’s side of the story in the early days of the dispute.
Trend No. 3: Sexual misconduct accusers are no longer off limits.
In a related trend, individuals and organizations accused of sexual misconduct are impugning the substance of their accusers’ allegations, and their credibility, without fear of that tactic coming back to haunt them.
Just a few short years ago, when the #MeToo movement was at its peak soon after the public airing of sexual misconduct allegations against Harvey Weinstein, it was verboten for those accused of sexual misconduct to attack their accusers.
For whatever reason (perhaps the backlash against the #MeToo movement is playing a role), that’s no longer the case today nor for the foreseeable future.
As I mentioned above, in the Guerrero–Lehot DLA Piper dispute, Lehot and DLA Piper have pulled no punches in their attacks on Guerrero. Lehot, in addition to claiming that Guerrero is exploiting the #MeToo movement, has said that “she’s not a victim.” And DLA Piper submitted a response to Guerrero’s charge with the U.S. Equal Employment Opportunity Commission (EEOC) that includes almost 100 pages of emails and photographs that—surprise!—found their way into the hands of reporters and suggest that there may be more to the Guerrero–Lehot relationship than Guerrero’s allegations suggest.
Trend No. 4: Parties are using marketing tools to tell their stories directly to the public.
Attorneys and clients are engaging the court of public opinion with the help of the same tools they use for their own marketing efforts, including blogs, websites and social media.
Until fairly recently, the only way for attorneys to tell their clients’ stories in the court of public opinion was to do so through the news media. Securing publicity for a client’s allegations—or defenses—guaranteed that an attorney could make their client’s case to large audiences outside of court.
But relying on media outlets to disseminate these messages through their news coverage meant that attorneys had to give up some control over these messages. There was no guarantee that what an attorney or client told a reporter would be repeated verbatim in subsequent news coverage.
Thanks to rapid developments in marketing technology over the past few years, attorneys and clients can now use marketing tools to speak directly to the public and maintain complete control over their messages. Blogs, websites, and social media provide potent options for attorneys to disseminate their and their clients’ messages to key audiences. And when using such tools, they need not worry about whether the key points they wanted to convey will be filtered by a reporter or editor.
Best of all, the use of these tools is relatively cheap, if not free, and requires very little technological savvy.
Guerrero and her attorneys have used marketing tools to tell their side of the story to the public. Guerrero made the opening salvo in the dispute via an open letter she posted on Medium, a free longform writing site.
Guerrero’s attorneys are also using Medium to tell the stories of other women who interacted with Lehot as part of what appears to be an effort to convince the public (and Lehot, DLA Piper and their counsel) that Guerrero’s claims against Lehot have merit and that Guerrero is not the only woman who believes she has been wronged by Lehot.
Putting These Trends to Work for You and Your Clients
While I’ve framed these trends as trends for 2020, they’re not going away anytime soon. These trends will have staying power for the next decade.
If you’ve previously had clients involved in high-profile legal disputes, or you expect to have such clients down the road, consider how these trends could impact your court of public opinion strategy for your future cases.
Is there a benefit to you and your clients issuing public statements that are more biting than statements you’ve issued in the past? If you are representing a defendant, is there an opportunity for you and your client to play offense and cast doubt on the other side’s claims? Regardless of who you are representing in a dispute, can you put marketing tools to good use to help your client tell their side of the story?
These questions may seem novel now. But get used to asking them.
Soon, they’ll be baked into the normal course of your advocacy for clients who wish to engage the court of public opinion regarding their legal disputes.
Wayne Pollock is the founder and managing attorney of Copo Strategies in Philadelphia, a national legal services and communications firm exclusively serving attorneys and their clients. Copo Strategies helps attorneys engage the court of public opinion regarding their clients’ active legal disputes and engage their referral sources and prospective clients regarding their firms and practices. Contact him at firstname.lastname@example.org or 215–454–2180.
Reprinted with permission from the January 7, 2020, edition of The Legal Intelligencer © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or email@example.com.