There are many examples of significant lawsuits, mass tort litigation and public regulatory or compliance issues that have damaged an organization’s reputation, diminished a company’s market capitalization or destroyed a brand.  The way such matters are managed can affect the results.  This paper will outline a proactive approach to managing significant litigation and public issues that can increase the likelihood of a successful outcome.
 
1.  Create an internal management team.  The first step in effectively managing a significant litigation or public issue is to create an internal management team.  The team should be formed as soon as the organization anticipates that the litigation or public issue is likely to occur.  The leader of the team should be identified, and the responsibilities of each team member should be clearly defined.  A process for regular communications among team members is important.  Because e-mail communications are potentially discoverable, meetings in person are preferable. The team should include a senior executive, legal counsel, a member of the organization’s communications or public affairs group, and representatives of other functions relevant to the issue such as business management and regulatory affairs.  To protect the attorney-client and work product privileges, it is usually a good idea to try to avoid selecting people who are likely to be key witnesses in the event of litigation.  
 
2.  Fully understand the situation.  Once the internal management team has been established, the first order of business is to fully understand the situation and all the risks it presents.  The retention of outside counsel to conduct witness interviews and review relevant documents in a privileged setting should be considered.  In developing an understanding of the situation and its risks, some of the questions that might be asked include the following:

• Does the situation threaten the reputation of the organization?
• Does the situation threaten the viability of a brand?
• Is regulatory action likely?
• Are public interest groups likely to press for regulatory action?
• Could potential regulatory action make litigation more likely, or more difficult to defend?
• Could potential regulatory action interfere with the continued operation of a plant or facility?
• Is the situation likely to draw the attention of the media?
• Will investigative reporters become involved?
• Did the organization make a mistake and, if so, what is the best way to address the fact that a mistake was made?
• Even if the organization did not make a mistake, will changes in public attitudes make it difficult for the organization to justify its past conduct, or to continue its course of conduct in the future? 
• Could regulatory action or pressure from special interest groups prompt a Congressional investigation of the situation?
• Are there disgruntled employees or former employees of the organization who might become whistleblowers?
  Does the situation have the potential of causing collateral problems with business partners such as customers and labor unions?
• Are there other organizations similarly situated, such as other members of a common industry or co-defendants in litigation, and how are those other organizations likely to react?
• How will competitors react?
• If the situation involves global activities, are there governments and agencies outside the United States that might become involved?
• Does the situation give the organization an opportunity to enhance its reputation? 

3.  Define the strategic objectives.  When the risks are adequately understood, the organization’s strategic objectives should be clearly defined so they can serve as a guide for the development of a strategic plan.
  
4.  Develop a proactive plan.  Try to seize control of the issue proactively.  Playing defense is seldom effective.  A proactive strategic plan should reflect a coordinated approach to addressing all aspects of the situation and the risks it presents to the organization.  A proactive strategic plan might include the following elements, among others:

• A unified plan for dealing with pending and anticipated litigation
• A plan for responding to media inquiries
• A communications plan for employees and other stakeholders
• A communications plan for customers and the public
• A process for monitoring news stories and Internet chatter about the issue
• A process for monitoring legal publications and trade press about the issue
• A plan for addressing regulatory activities, both in the United States at the federal and state level and overseas, that may affect the issue or have an impact on associated litigation
• A process for monitoring the activities of special interest groups that may have an interest in the issue, or that may want to use the issue as a means of advancing their political agendas
• A contingent plan to deal with Congressional activity relating to the issue 

5.  Develop affirmative themes early.  It is important to have affirmative themes that guide communications with all audiences and, in the event of litigation, pretrial preparation and trial.  When the stakes are high enough, public opinion and focus group research should be considered as tools that can help in the development of effective themes.  The themes, taken together, need to have emotional as well as intellectual appeal, and should tell the organization’s story in the most positive manner possible under the circumstances.  Affirmative themes are important, because defensive messages generally create an impression of arrogance, guilt or cover-up.
 
6.  Speak with one voice.  The organization and all of its representatives and spokespeople must speak with one voice and deliver a consistent message to all audiences.  Inconsistent messages undermine the organization’s credibility and delight adversaries.  Media or communications training of internal and external spokespeople should be considered to help them communicate as effectively as possible.
 
7.  Preserve relevant documents.  Immediate steps should be taken to make sure that all relevant documents, including e-mails and other electronic records, are preserved.  Spoliation of evidence claims are becoming more common, as a means of undermining the credibility of a litigant and creating a collateral issue to bolster a weak claim.  The consequences of destroying evidence that should have been preserved can be serious, even if the destruction of the evidence was innocent or inadvertent.  The obligation to retain documents, including electronic records, that might be relevant to litigation is generally triggered by the receipt of a claim or lawsuit or by knowledge of facts indicating that a claim or lawsuit is reasonably anticipated.  It is also important to comply with the somewhat broader obligation imposed by Sarbanes-Oxley to preserve documents, including electronic records, that might be relevant to a U. S. federal government investigation or proceeding.  That obligation is triggered by knowledge of facts suggesting it is probable that a matter or issue will become the subject of a U. S. federal government investigation or proceeding.  A violation of the Sarbanes-Oxley obligation to preserve documents and electronic records can result in significant criminal penalties.
 
8.  Anticipate developments.  Try to anticipate legal, regulatory and other developments before they arise, so they can be addressed proactively.  
 
9.  Be adaptable.  Reevaluate the strategic plan often, and make changes when appropriate.
 
10.  If litigation strikes:
 
a.  Make sure the litigation is managed as part of the overall plan to achieve the strategic objectives of the organization.  Outside counsel and consultants should be actively managed from inside the organization.
 
b.  In developing an approach to the litigation, look beyond the legal claims and defenses and consider:

• Emotional issues
• Societal (juror) attitudes and expectations
• Political issues
• Adversaries’ agendas 

c.  Also consider whether the outcome of a lawsuit has the potential to spawn, or to discourage, other litigation.
 
d.  If early resolution of the litigation is a feasible and desirable option, consider the use of early mediation.  It is often possible to engage in a mediation that leads to resolution before any formal pretrial discovery is conducted and before any pretrial motions are filed.
 
e.  Identify the needs for outside counsel and consultants, which may include:

• First chair trial lawyers
• Local counsel for the particular venue
• Coordinating counsel (national, regional)
• Counsel for special issues (e.g., Daubert counsel, appellate counsel)
• Settlement counsel
• Regulatory counsel
• Legislative counsel
• Jury consultant
• Strategic communications firm
• Technical support (e.g., graphics, court reporters, document management)
• Consulting experts
• Testifying experts
• External spokespeople 

f.  In selecting outside counsel, remember that talent can often be found in different firms.
 
g.  Hire the best people for the particular litigation who are cost-effective and who:

• Can set aside ego and work as part of a team
• Are compatible with the organization’s values and culture
• Understand and can align themselves with the organization’s objectives
• Are willing to work closely with the internal management team

h.  Make sure the lawyer who will have the lead role at trial is actively involved in pretrial case development.
 
i.  Increase efficiency by creating smaller teams, which may be interdisciplinary, for generic tasks (e.g., the selection and preparation of expert witnesses, legal research, the preparation of generic trial exhibits, the preparation of responses to pretrial discovery, and the preparation of the organization’s principal witnesses).
 
j.  Make sure the organization’s witnesses are thoroughly prepared before they give any testimony.  Careless testimony and flippant answers can last forever.
 
k.  Although it is true statistically that most lawsuits are settled, in managing the conduct of litigation it is important to regard settlement and trial preparation as separate activities moving down parallel tracks.  The goal of a settlement is to enhance the organization’s business and other interests, while the goal at trial is to win.  Too often cases approach trial with an inadequate discovery record, because the case had been prepared on the assumption that it would probably settle and depositions were taken merely to gather information and not to advance the organization’s affirmative trial themes. 
 
11.  Address disclosure issues.  Remember to address insurance notification and other disclosure issues.