Reputational damage is a key part of litigation risk, says Rachel Atkins, partner, Schillings.
For leading companies and high-profile individuals alike, being involved in a legal dispute might mean that it’s not just the judge who casts judgment. With evidence openly commutable to the public domain and the corridors of court alive with whispers, a simple dispute over a minor matter can mean a reputational storm in the making.
When facing litigation proceedings, claimants will understandably have their eyes fixed on the judge’s bench. But at the same time, attention also needs to be given to the cheap seats at the back, so that a secondary line of defence can be put in place to protect you from the unwanted gaze of the media.
The media interest in a case neither starts nor finishes with the day in court. Even a successful judgment can result in serious reputation damage. But by assessing your reputational vulnerabilities pre-trial, you will be better placed to mitigate any reputational damage stemming from the case. When it comes to defending reputation, ensuring a dispute doesn’t don’t end in disrepute can be underpinned by three key principles:
1. Reputation Planning – Unlike the trial process itself in front of the judge, when it’s only the final result that matters, the daily reporting of a case can have an instant effect on reputation. For this reason, start preparing long before an action is started. Identify the reputation impact of the case going to court and develop a strategy to manage that impact on a global level.
2. Evidence Management – In the build up to a court hearing both of the legal teams involved in the case are privy to the witness statements and other documents. While your legal team will be quite rightly focused on putting your best case forward, keep your eyes firmly fixed on any commercially or personally sensitive material starting to surface in order to minimise the reputational impact. When identified, consider whether evidence that has a reputational consequence is needed at all or whether further evidence is also needed to counter it; request your team seal court files if appropriate; and ask whether aspects of the hearing can be conducted in private. There are many other avenues/options available to you.
3. Media Protection – Just as media interest will start long before the trial begins, comment and coverage will continue long after it ends. Therefore, don’t be afraid to instruct media lawyers to investigate all instances of reporting on the case and to monitor the situation 24/7. In instances where information is reported unfairly, legal tools/relationships can then be brought to bear and action taken to have the content removed and to block its proliferation online.
At a time when just a few words can be the harshest judgment, the biggest reputation threat is not so much the court case itself, but the lasting damage it can do to reputation. A robust reputation defence requires pre-preparedness so that as it progresses through the courts, any media interest or fallout can be handled effectively and reflected fairly in any coverage.